URINARY DYSFUNCTION

Summary

The Veteran, a Veteran who served from July 1954 to November 1957 and again from January 1991 to May 1991, appeals the denial of service connection for a genitourinary disability. The Board notes that some of the Veteran's service treatment records (STRs) were unavailable or incomplete, particularly those from his first period of service. The Veteran testified at a hearing that he began experiencing genitourinary symptoms, consistent with benign prostatic hypertrophy (BPH), during his second period of service in 1991, requiring medication for frequent urination. He stated these symptoms have worsened since service. Post-service records show treatment for BPH and urinary dysfunction, with a diagnosis of BPH and erectile dysfunction noted in recent VA examinations. The Board found the Veteran's statements significant, especially given his status as a physician, and accorded them substantial probative weight. The Board also found the available STRs and post-service treatment records, which indicated BPH symptoms and treatment, to be persuasive. While a VA examiner initially provided a positive nexus opinion based on an incorrect assumption about BPH being a Gulf War presumptive condition, subsequent examinations were either inadequate or could not provide an opinion without speculation, failing to address the Veteran's specific contentions. Resolving all reasonable doubt in the Veteran's favor, the Board found that the evidence establishes the genitourinary disability had its onset in service and has been continuous. Therefore, service connection for a genitourinary disability was granted.

Rationale

Veteran's statements regarding in-service symptoms and continued treatment for BPH are given significant probative weight.; Post-service treatment records indicate BPH symptoms and treatment.; Resolving reasonable doubt in Veteran's favor, evidence establishes onset in service and continuity.

Full Decision Text

Citation Nr: 22042493
Decision Date: 07/27/22	Archive Date: 07/27/22

DOCKET NO. 18-28 628
DATE: July 27, 2022

ORDER

Entitlement to service connection for a genitourinary disability is granted.

FINDING OF FACT

Resolving any reasonable doubt in the Veteran's favor, his genitourinary disability is related to his active service. 

CONCLUSION OF LAW

The criteria for service connection for a genitourinary disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1954 to November 1957 and January 1991 to May 1991. This current matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  During the current appeal, and specifically in October 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. In March 2021 and May 2022, the Board remanded this matter for further evidentiary development. Although some of the development conducted pursuant to the May 2022 Board remand is inadequate, in light of the full grant of benefits awarded herein, another remand is not required. This appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 

Finally, the Board observes that a portion of the Veteran's service treatment records (STRs) were determined to be unavailable for review or a scan of such was not completed. See July 2016 Request for Information. Although STRs were associated with the claims file in March 2016 and January 2017, these files do not include STRs from the Veteran's first period of active service and consist largely of his reserve duty records. In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving service connection. Rather, the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Service connection requires evidence of a current disability resulting from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for chronic disabilities if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The presence of a chronic disability at any time in the claim process can justify a grant of service connection, even if the disability has since resolved or the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). VA administers the law under a broad interpretation, consistent
. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The presence of a chronic disability at any time in the claim process can justify a grant of service connection, even if the disability has since resolved or the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). VA administers the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102.

The Veteran contends he has a genitourinary disability related to his active duty. Post service medical records reflect treatment for, and diagnoses of, multiple genitourinary disorders, including benign prostatic hypertrophy (BPH), enlarged prostate, elevated prostate-specific antigen (PSA), urinary dysfunction, and erectile dysfunction. See November 1999, June 2008, March 2011, March 2016, and July 2016 Private Treatment Records, January 2017 and July 2018 VA Treatment Records, and May 2022 VA Examination. The Board resolves reasonable doubt in his favor and concludes that the first service connection element for is met. 

A review of the Veteran's available STRs do not reflect a genitourinary disability or treatment for such. However, he testified at his October 2020 hearing that he began experiencing genitourinary symptoms, particularly symptoms of BPH, before he left active service in 1991. He reported that he was on an alpha blocker during his active duty to attempt to alleviate his need to urinate frequently and that he has continued on this medication to the present day and his symptoms have increasingly worsened since leaving service. Post-service treatment records note mild symptoms of BPH in July 1995 and his reports of an alpha blocker for his BPH in November 1999 (although it was unclear when this medication began). Of particular importance, the Veteran testified that he is a physician and his DD 214 from his second period of service reflects a military occupational specialty in anesthesiology.  Thus, his statements regarding his symptoms and treatment for such are entitled to significant probative weight. 

The Veteran was accorded multiple VA examinations in January 2022, and the examiner diagnosed BPH and urinary dysfunction in the appropriate examination reports. The examiner recorded the Veteran's reports that his condition onset during his second period of service but did not record any details regarding the Veteran's symptoms at the time of onset. The examiner indicated that the Veteran's condition is a disease with a clear and specific etiology and diagnosis and opined it was at least as likely as not that his BPH was due to his military service, as such is a presumptive condition for Gulf War Veterans. Unfortunately, this was an incorrect determination, as BPH is not a presumptive condition and the Veteran's military personnel records do not reflect service in Southwest Asia. See 38 C.F.R. § 3.317. Further rationale and explanation were not provided along with the opinion. 

Following the May 2022 Board remand, the Veteran was accorded another VA examination in May 2022. The examiner diagnosed benign prostatic hyperplasia and erectile dysfunction and recorded the Veteran's reports that this condition began sometime between 1985 and 1990, which would be prior to his second period of service, but did not record the Veteran's contentions regarding his symptoms during his second period of service. The examiner then opined it was less likely than not that the Veteran's genitourinary disability was related to his service, as such could not be determined without mere speculation. The examiner indicated that the Veteran began having symptoms and was diagnosed with BPH in his 50's with urinary frequency and leakage and that this is common in men of that age, and it is difficult to determine if this is military related for that reason. The examiner further noted that his diagnosis of erectile dysfunction came many years after his military service. In finding that an opinion could not be provided without speculation, the examiner failed to address the Veteran's credible assertions that his symptoms began during his active service and have continued to the present. 

An addendum opinion was obtained in June 2022, as the RO requested that the examiner explain why an opinion could not be offered without resorting to speculation. The examiner's only clarification provided was that there would be a need for additional or for further information to determine a more definite answer as to whether the Veteran's disability was due to his service. Again, the examiner failed
 that age, and it is difficult to determine if this is military related for that reason. The examiner further noted that his diagnosis of erectile dysfunction came many years after his military service. In finding that an opinion could not be provided without speculation, the examiner failed to address the Veteran's credible assertions that his symptoms began during his active service and have continued to the present. 

An addendum opinion was obtained in June 2022, as the RO requested that the examiner explain why an opinion could not be offered without resorting to speculation. The examiner's only clarification provided was that there would be a need for additional or for further information to determine a more definite answer as to whether the Veteran's disability was due to his service. Again, the examiner failed to address the Veteran's contentions regarding the onset and continuation of his symptoms from his time in service to the present. 

After a review of the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for a genitourinary disability. In reaching this conclusion, the Board finds that the VA examinations of record, while helpful in clarifying the nature of the Veteran's current disability, are of little probative value. Specifically, while the January 2022 VA examiner provided a positive nexus, such was based on an incorrect factual assumption that BPH is a presumptive condition for Gulf War service, which renders the examination inadequate. The May 2022 VA examiner could not provide an opinion without resorting to speculation but failed to consider the Veteran's own contentions and reports regarding the onset and development of his symptoms in providing an opinion and the June 2022 VA addendum failed to provide any clarification. As such, the Board accords the May 2022 negative nexus opinion very little probative weight given the examiner's failure to address the evidence of record in providing an opinion. 

Conversely, the Board accords the Veteran's statements regarding his in-service experiences and reports of symptoms significant probative weight, as he is competent to establish the presence of observable symptomatology and is additionally competent to provide a nexus opinion between his in-service condition and his current disability given his status as a physician. See Barr. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). His testimony that he experienced genitourinary symptoms in service and continued to experience the same symptoms after service are entitled to significant weight, and, in conjunction with treatment for BPH indicated shortly after his service separation, indicate that his genitourinary disorder symptoms began in service and have continued to the present. 

The Board, thus, finds that the evidence of record establishes that the Veteran has continuously experienced symptoms consistent with a genitourinary disability since his active-duty service. As such, the Board finds that the evidence establishes that the current genitourinary disability had its onset in service and that it has been 

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continuous since then. Therefore, resolving any reasonable doubt in favor of the Veteran, service connection for a genitourinary disability is warranted. 

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Goreham

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.