BVA9502398 DOCKET NO. 92-21 760 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a prostate disorder. 2. Entitlement to service connection for a bladder disorder. 3. Entitlement to an increased (compensable) rating for residuals of surgery of the dorsal veins of the penis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from November 1944 to October 1947. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 1991 rating decision which included denials of service connection for a prostate disorder and an increased rating for residuals of surgery of the penis. The veteran was present for a hearing before a hearing officer at the RO in May 1992. The hearing officer's decision was issued in July 1992. The issue of service connection for a bladder disorder was raised during a hearing before a member of the Board in Washington, D.C., in September 1993. The Board remanded the appeal to the RO for further development in November 1993. During the appeal process the veteran's representative raised questions concerning service connection for a back disorder and psychiatric disorder, special monthly compensation for loss of use of a creative organ, and clear and unmistakable error in a June 1949 and subsequent rating actions. However, these issues are not properly before the Board for appellate review and will not be addressed in this decision. The October 1994 informal hearing presentation of the veteran's representative, however, expresses disagreement with the denial of secondary service connection for a psychiatric disorder and raises the issue of secondary service connection for heart disability. These matters are referred to the RO. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the residuals of his penile surgery during service are productive of impairment which warrant a compensable disability rating, and that service connection is warranted for disorders of the prostate and bladder because they were caused by the service-connected penile disorder. It is also contended that the veteran's current prostate disorder may be related to a prostate problem during his service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims of service connection for a prostate or bladder disorder, but supports an increased rating for residuals of surgery of the dorsal veins of the penis. FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been requested by the RO. 2. An episode of prostatitis during the veteran's service was readily resolved with massage and irrigations. 3. The first evidence of a chronic prostate or bladder disorder was many years after the veteran's service, and a relationship between such disorders and service or an already service- connected disability has not been shown. 4. The veteran developed priapism and underwent plastic surgery in May 1947 to release obstruction to the dorsal vessels of the penis. 5. Reports of VA urology examinations in January and May 1994 indicate that the veteran currently has a 40% loss of erectile power. CONCLUSIONS OF LAW 1. A chronic prostate or bladder disorder was not incurred in or aggravated by the veteran's service or caused by or related to a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.310 (1993). 2. A 20 percent rating for residuals of surgery of the dorsal veins of the penis is warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 4.115, Code 7522 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claims are well- grounded within the meaning of 38 U.S.C.A. § 5107, and that all relevant facts have been properly developed for this appeal. With respect to the adequacy of the most recent examination for rating purposes, it is found to be sufficient as it includes the veteran's history since military service, the results of physical examination and diagnoses. I. Service Connection Service connection may be granted for a disability which is shown to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." A continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service discharge is required to support the claim. 38 C.F.R. § 3.303(b). Furthermore, when a disease was not initially manifested during service or within the applicable presumption period, the appellant may establish the "required nexus" for service connection by evidence demonstrating a medical relationship between the current disability and the service. See 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d) (1992); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1993). A. Prostate Disorder The veteran's service medical records disclose that a cystoscopy on February 7, 1947 showed chronic posterior urethritis and verumontanitis. Severe prostatitis was reported on February 11, 1947, and massages and irrigations were recommended. An August 1947 final summary of hospitalization disclosed that the chronic prostatitis and verumontanitis had been "cleared up by massage and irrigations" prior to the veteran's transfer to Walter Reed General Hospital in March 1947. A report of a September 29, 1947 preseparation examination noted that the veteran had returned to full duty following an operation on the penis during hospitalization at Walter Reed General Hospital in March 1947. A suprapubic operational scar was shown. A report of the veteran's initial VA examination, conducted in May 1949, was negative for complaints or findings of prostate difficulties. A rectal examination was reported as normal. Medical records from Fairmont General Hospital disclosed that the veteran was admitted on July 30, 1967 for treatment of a myocardial infarction. His report of medical history included "a known prostatitis approximately two years previously which had been treated with good effect." On the nineteenth day of hospitalization the veteran experienced the onset of urgency, burning on urination and frequency. A rectal examination revealed an enlarged and tender prostate. A "smear revealed pus cells." Acute cystitis and acute prostatitis were diagnosed and successfully treated. Medical records received from West Virginia University Hospitals, Inc., covered the period from April 1986 to October 1992. A report of hospital admission in May 1986 for coronary revascularization noted "a history of BPH (benign prostatic hypertrophy), currently followed by a urologist with nocturia times 3-4 per night with hesitancy and dribbling as well as decreased stream size." A rectal examination "reveale[d] no masses. The prostate [was] approximately 25 grams without nodularity." A December 1989 examination report from Stanley J. Kandzari, M.D., noted "a four year history of prostatism." The veteran complained of increased difficulty with hesitancy on urination, urinary frequency and nocturia two to three times a night. A rectal examination revealed that the prostate was "about twice the normal size, smooth with a questionable small nodule at the apex." A cystourethroscopy and transrectal biopsy were performed in January 1990 by Dr. Kandzari and Jacek S. Sosnowski, M.D., due to "[b]ladder outlet obstruction suspicious for prostatic nodule." The subsequent pathology report diagnosed "[b]enign glandular and fibromuscular hyperplasia...[n]egative for malignancy." Medical records from University Health Associates include a November 1991 statement from Dr. Kandzari disclosing that he first saw the veteran in December 1989 for symptoms of prostatism. At that time the veteran reported "a four-year history of some hesitancy on urination, urinary frequency, and nocturia two to three times at night." During a VA hearing in May 1992 it was asserted that the veteran's current prostate problems were a result of the surgery and related problems with his penis. During a VA hearing in September 1993 the veteran testified that he has had recurring prostate problems since his separation from service. Reports of VA examinations in January and May 1994 disclosed that a prostate examination "revealed 20-25 grams, smooth, firm, without nodule, tenderness, or fluctuance." There was no penile deformity. The examiner opined that "[i]t is obvious from [the veteran's] service record and his course of treatment with Dr. Kandzari, that his benign prostatic hypertrophy has no relationship to...the problem of priapism he had during his active military duty." The examiner added that the veteran's benign prostatic hypertrophy "is a product of aging and not related to the treatment of his priapism while in the service." Although the veteran's service medical records confirm a diagnosis of chronic prostatitis in February 1947, the records also show that the problem was soon resolved with massage and irrigations. The subsequent service medical records, including the genitourinary portion of the September 29, 1947 preseparation examination, are negative for any prostate problems. Therefore, the Board finds that the diagnosis of chronic prostatitis during service may legitimately be questioned. In such a situation, as the veteran's representative points out, the VA regulations require a showing of continuity of symptomatology (rather than a continuity of treatment) after discharge, to support a claim for service connection. 38 C.F.R. § 3.303(b). In this regard, the veteran's 1993 testimony asserted recurring symptomatology indicative of prostate problems after service, especially "back in the late '40's, '47, '48, '49...." (See page nine of the September 13, 1993 VA hearing transcript.) However, the post- service medical records revealed no such complaints until many years after service. Specifically, there were no complaints related to the prostate during a VA examination in May 1949, and the rectal examination was normal. Furthermore, the first postservice record of a prostate problem was the report of "prostatitis approximately two years previously," noted in the July 1967 hospital report, which dates the initial postservice symptomatology to approximately July 1965, more than 17 years after the veteran's separation from service. Regarding the resolution of evidentiary conflicts, the United States Court of Veterans Appeals (Court) notes that the Board "has the duty to assess the credibility and weight to be given to the evidence." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). After carefully weighing the contrasting evidence above, the Board finds that greater probative value is due the clinical records and reports by the veteran at the time he sought medical assistance, than due his testimony based on memories of events more than 40 years previously. In short, the contemporaneous medical evidence and the veteran's statements given closer in time to the occurrence of the symptoms prove more accurate and credible than the veteran's reports decades after the events. The Board also finds that there is no medical evidence supporting the contention that the veteran's current prostate problems are related to service. In fact, he has acknowledged that no medical professionals have told him that his current prostate disorder "is related to the prostatitis [he] had back in the '40's." (See page 9 of the September 13, 1993 VA hearing transcript.) Therefore, the only evidence supporting this contention are the assertions of the veteran and his representative. As the Court has indicated, unsupported lay assertions concerning such questions of medical diagnosis or causation do not constitute competent evidence. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Thus, in the absence of evidence substantiating a chronic prostate disorder during service, a continuity of related symptomatology after service discharge, or competent evidence of a nexus between the current prostate disorder and service, the Board finds that the preponderance of the evidence is against the claim of service connection for a prostate disorder on a direct basis. While it has been asserted that the veteran's current prostate disorder is the result of his service-connected penile disorder, there is no medical evidence supporting this contention. In fact, the only medical evidence concerning such a relationship was the May 1994 examiner's opinion which indicated that such a relationship did not exist. Therefore, the only evidence supporting this contention are the unsupported lay assertions of the veteran and his representative, which do not constitute competent evidence. See Grottveit, supra; Espiritu, supra. Accordingly, in the absence of competent evidence of a causal connection between the veteran's prostate disorder and his service-connected penile disorder, the Board finds that the preponderance of the evidence is against the claim of service connection for a prostate disorder on a secondary basis. B. Bladder Disorder The veteran's service medical records are negative for evidence of a bladder disorder, although some urination problems related to other difficulties are shown. The first clinical evidence of a bladder problem was in the records from Fairmont General Hospital disclosing that the veteran developed acute cystitis and acute prostatitis during hospitalization in 1967. Both of those infections were successfully treated. The first such evidence indicative of a possible chronic disorder of the bladder were the reports of a cystourethroscopy and transrectal biopsy performed in January 1990 by Drs. Kandzari and Sosnowski, due to "[b]ladder outlet obstruction suspicious for prostatic nodule." As previously noted, the subsequent pathology report diagnosed "[b]enign glandular and fibromuscular hyperplasia...[n]egative for malignancy," and there is no clinical indication that the bladder difficulties were related to the veteran's penile surgery. In summary, the record is negative for evidence of a chronic bladder disorder which is related to the veteran's service and there is no medical evidence linking such disability to his service-connected penile disorder. In fact, the only medical evidence addressing such a relationship is the May 1994 examiner's opinion stating that it is unlikely that the veteran's "bladder problem" is related to his service-connected penile disorder. Once again, the only evidence supporting the suggested causal relationship are the unsupported lay assertions of the veteran and his representative, which do not constitute competent evidence. See Grottveit, supra; Espiritu, supra. Accordingly, based on the above, the Board finds that the preponderance of the evidence is against the claim of service connection for a bladder disorder. Finally, since the negative evidence outweighs that which is positive on the merits of the issues concerning entitlement to service connection, the veteran cannot be given the benefit of the doubt since no such doubt arises. II. Increased Rating for Residuals of Surgery of the Dorsal Veins of the Penis. Disability evaluations are determined by the application of a schedule for rating disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In every instance where the schedule does not provide for a zero percent evaluation, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The veteran's service medical records disclose that he developed priapism and underwent plastic surgery in May 1947 to release obstruction to the dorsal vessels of the penis. Some decrease in erection rigidity was indicated subsequent to that procedure. A September 1947 preseparation examination report noted the May 1947 surgery. A genitourinary examination disclosed a suprapubic operational scar. During a VA urology examination in May 1949 the veteran reported "a few mild [priapism] attacks of very short duration" since service and loss of sensation on the right side of the penis. A physical examination disclosed that the penis was moderately engorged. There was a small, soft, nonadherent scar on the dorsum of the penis near the pubic area and a similar scar in the suprapubic region. There was loss of sensation to touch on the right side of the penis. The diagnosis was moderately engorged corpora cavernosae and post-operative scars of the penis and suprapubic region. A June 1949 rating decision established service-connection for residuals of plastic surgery of the dorsal veins of the penis and assigned a noncompensable disability rating, effective from February 5, 1949, the date of receipt of the veteran's claim. The veteran next filed a claim concerning his service-connected penile disability in September 1991. The claim was followed by the aforementioned November 1991 report from Dr. Kandzari, which noted the veteran's complaints of penile pain when wearing tight clothing, in addition to difficulty sustaining an erection since his surgery for priapism. A December 1991 rating decision continued the noncompensable disability rating for residuals of plastic surgery of the dorsal veins of the penis. The veteran's penile disability is rated as analogous to Diagnostic Code 7522 of the VA rating schedule, which assigns a sole rating of 20 percent for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115(b), Code 7522. During a personal hearing at the RO in May 1992 the veteran testified that he had not required treatment at a VA facility concerning penile problems since his examination in 1949 or at any other medical facility prior to 1970. He testified that he had fathered three children since service, but had had difficulty maintaining an erection and "no feeling at all" on "one side" since his penile operation in service. (See page four of the May 21, 1992 VA hearing transcript.) The veteran reiterated these complaints during his personal hearing in Washington, D.C., in September 1993. A January 1994 VA urology examination report indicated that the veteran complained of "sexual dysfunction [with] about a 40% loss in erection in girth and rigidity and also shorter duration of intercourse." The veteran acknowledged that he was not completely impotent. An examination revealed a normal penile shaft with the exception of a well-healed surgical scar at the dorsum base of the penis. The examiner opined that "if there is impotence in this man, it is likely to be multifactorial organic, including vascular, neuronal, and probably post priapism." In a second VA urology examination report, dated in May 1994, the same physician stated that "apart from his subjective complaint of erectile dysfunction, about 40%, there is no other evidence of sequelae secondary to his treatment for priapism while in the service." In consideration of an increased rating under Diagnostic Code 7522, the Board notes that the veteran has "deformity" of the penis, at least in the sense of physical changes through surgical alteration. More importantly, evidence of a rather significant loss of erectile power has been submitted since the veteran's September 1991 claim. While Dr. Kandzari's November 1991 report mentioned difficulty with erectile power, the first clinical evidence which actually provided an objective-type "measurement" were the rather recent VA examination reports indicating a "40%" loss of erectile power. Accordingly, in view of the evidence of penile deformity, the recent clinical reports indicating a significant loss of erectile power, and with the benefit of all doubt given to the veteran, the Board finds that a 20 percent rating for the veteran's residuals of surgery of the dorsal veins of the penis is warranted under Diagnostic Code 7522. ORDER Service connection for a prostate disorder and a bladder disorder is denied. An increased rating of 20 percent for residuals of surgery of the dorsal veins of the penis is granted, subject to the law and regulations governing the effective dates of appeals. BARBARA B. COPELAND Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.