BVA9505201 DOCKET NO. 91-21 115 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES Entitlement to service connection for a chronic back disorder. Entitlement to an increased (compensable) rating for residuals of biopsy for a prostatic nodule. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had verified active service from February 1970 to October 1988, with approximately five years’ unverified prior active service. This case came before the Board of Veterans’ Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in November 1989, which, inter alia, granted service connection for the veteran’s prostate disorder, assigning a noncompensable evaluation, and denied service connection for a chronic back disorder. The case was previously remanded by the Board to obtain additional medical information. That development having been accomplished, the case is now ready for final appellate consideration. It should be noted that service connection for a skin disorder was granted subsequent to the Board’s remand. Although the veteran’s claim in that regard was previously denied and appealed, that issue is no longer part of the current appeal. In addition, during the course of the development of this case, the veteran withdrew his claims concerning several other issues which were previously appealed. Moreover, also during the course of the appeal, the RO allowed increased ratings for two disabilities; the RO considered the veteran’s appeal regarding those issues to have been satisfied, and the record does not reflect that he has expressed disagreement with that action. Accordingly, the only issues remaining for appellate consideration are those stated above. To the extent that the veteran’s various statements might be construed as a claim for service connection for a disorder characterized by urinary frequency, that claim has not been adjudicated or otherwise developed for appellate review, and so is referred to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he has had a constant back ache since 1977 during service which has been unrelieved by measures he has taken. He points out that he had slipped and fallen down a flight of stairs while in service. It is also asserted that his prostate disability is much worse than is reflected by the current evaluation, inasmuch as he has had urinary frequency up to 50 times a day, urgency, hesitancy, terminal dribbling, dysuria, and erectile dysfunction since the 1988 prostate biopsy during 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 service connection for a chronic back disorder is not established and that a compensable evaluation for postoperative residuals of biopsy of a prostatic nodule is not warranted. FINDINGS OF FACT 1. Episodes of back pain reported during service were acute and transitory and resolved without residual disability; no current back pathology has been demonstrated, nor are any current back complaints reasonably related to service. 2. The veteran’s current urinary complaints and claimed erectile dysfunction are not related to his service-connected prostate disability; no current impairment due to the prostate disability has been shown. CONCLUSIONS OF LAW 1. A chronic back disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 2. Residuals of a biopsy for a prostatic nodule are noncompensably disabling according to the schedular and extraschedular criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10 and Part 4, Codes 7527, 7529 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are well grounded; that is, the claims are not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claims, as mandated by 38 U.S.C.A. § 5107(a). Factual background The service medical records reflect that the veteran reported no history of back symptoms at the time of his enlistment examination in September 1967 and no abnormal clinical findings were then noted. Outpatient records indicate that he complained of back pain in 1969, in 1974 and again in 1977. In 1975, he was involved in a motorcycle accident, but no pertinent complaints or abnormal clinical findings were noted at the time; later X-ray studies revealed paralysis of the left hemidiaphragm, which was then attributed to the 1975 accident. The veteran did complain of progressive back pain at the time of a hospitalization in February 1977. The examiner indicated that there was marked pain to palpation of the lower paraspinous muscles. The summary of that hospitalization makes no mention of further complaints of back pain, or evaluation or treatment of any back disorder (a lumbar puncture was performed), nor does it indicate any abnormal clinical findings regarding the veteran’s back. Although the initial impression was of a spinal epidural abscess, the final diagnosis was penicillin reaction. In February 1979, the veteran was treated for a sore throat. At that time he also complained of low back pain; mild tenderness of his back muscles was noted. The veteran was again seen in the outpatient clinic in April 1988 complaining of slight discomfort in his lower back; no diagnosis or impression was recorded. Another outpatient record, in September 1988, contains a notation that the veteran had had chronic back pain since 1977, but that he was taking no chronic medication for the pain. The report of veteran’s retirement examination in September 1988 also notes his report of a history of backaches since his hospitalization in 1977. He also reported having had a spinal epidural abscess in January 1977. The examiner noted no abnormal clinical findings pertaining to the veteran’s back in September 1988. The service medical records also show that the veteran was evaluated in September 1988 for complaints of voiding every 30 minutes during the day. He denied any nocturia, and reportedly had no history of urinary tract infections. After review of the veteran’s records, the examiner noted that an IVP showed a vertical bladder. On examination, a tender nodule at the base of the right side of the prostate was found. A few days later, a cystoscopy was done and a biopsy was taken, both of which were reportedly completely negative, including examination of the bladder. The service records do not reflect any symptoms due to the prostatic nodule or residuals of the biopsy, or, in fact, any urinary tract symptoms whatsoever. Also, the service medical records reflect that the veteran underwent a vasectomy in 1974. Subsequent clinical records note no complaints or abnormal clinical findings related to that procedure. A VA compensation examination, which included a special orthopedic evaluation, was conducted in July 1989. At that time the veteran reported no urinary tract or back symptoms and no pertinent abnormal clinical findings were noted. Records of a military outpatient facility reflect that in July 1990 the veteran was seen with a complaint of urinary frequency. It was noted at that time that an intravenous pyelogram (IVP) had shown a markedly compressed bladder, described as "sausage- shaped." A personal hearing was held before a hearing officer at the RO in July 1990. At that hearing, the veteran testified to the circumstance of his hospitalization in early 1977, when it was thought that he had "abscesses on the spine." He recalled being transported to a naval hospital "to have open spine surgery." He also noted that he then had a "large yellow strip that comes across the back," where the skin would turn yellowish and become a little "puffy," and which he indicated that he would still have on occasion. The veteran testified that he had a constant back ache. He stated that he had experimented with three different mattresses and that he had done back exercises, but that "nothing works." He stated that service department doctors had told him that there was a possibility that he had rheumatoid arthritis. The veteran also described the difficulties he had with urination. He noted frequent problems with a burning sensation, as well as urinary frequency as high as 52 times in one day, including two or three times at night, voiding small amounts. He also stated that he had a lot of pain after sex. The veteran reported that the urinary frequency created difficulties at work teaching and traveling on long trips. Another VA compensation examination (for evaluation of other disorders) was conducted in November 1990. The veteran then complained of back aches and frequent urination. No evaluation for those symptoms was carried out at that time. A personal hearing was held before the undersigned Member of the Board in Washington, DC, in January 1992. The veteran described the pain in his back as soreness, and indicated that he had trouble getting up from being on the floor. He denied that the back pain had ever required him to be immobile in bed. He also testified that no one had ever used the term lumbar strain or muscle strain to describe his back pain; neither had any physician ever determined that there was an arthritic component. The veteran also testified, as he had previously, regarding the effects of his urinary frequency on his work. The veteran was examined by a VA orthopedist in January 1993. He reported chronic low back pain which he attributed to a spinal epidural abscess he had after a sore throat in 1977. He also complained of some swelling of his lower back, and numbness and pain down his left leg. Clinical evaluation revealed no reported abnormal findings. X-ray studies showed no degenerative changes. In January and March 1993, the veteran underwent a genitourinary (GU) tract examination. The veteran reported a long history of frequent urination, up to fifty times per day, and passage of large quantities of urine each time. He also noted a decrease in sexual desire and ability since the 1988 prostate biopsy. An IVP had reportedly shown a misshapen, vertical bladder. After reviewing the veteran’s records, the examiner indicated that, in his opinion, examination of the veteran’s prostate was within normal limits, although the prostate was noted to have a slight nodularity in its distal midportion. The examiner stated that the veteran should have a thorough urinary tract evaluation, including an excretory urogram, cystoscopy and possible ultrasound or computed tomographic studies. The examiner further indicated that the prostate appeared to be within the limits of normal. Another evaluation by a VA orthopedist was conducted in March 1993. The veteran reported that his chronic low back pain would become worse on lying supine and on his left side. He denied pain on sitting. On clinical examination, the veteran was able to forward flex his spine to 90 degrees and to hyperextend it to 20 degrees. Knee and ankle reflexes were "3+ and symmetric." Motor strength was reported as 5/5, and straight leg raise testing was normal. X-rays were again negative. The examiner assigned a diagnosis of chronic low back pain. He indicated that degenerative disc disease, if present, "could be" attributable to the veteran’s reported 1970s accidents; but, it could also be due to the veteran’s increasing weight and age. More importantly, however, the examiner stated that no degenerative disc disease was present. Further evaluation was conducted by a VA urologist in December 1993. At that time, the veteran reported a seven or eight year history of progressive urinary frequency, dysuria at times, and nocturia up to three times, but mostly once per night. He also complained of terminal dribbling. The examination was reportedly normal, except for some slight irregularity toward the base of the prostate, and a small urethral meatus. Intravenous pyelography reportedly revealed a normal urinary tract, and a very small amount of post-voiding residual. The radiologist indicated that the prostate gland appeared enlarged. Laboratory studies were normal. The examiner’s impressions included meatal stenosis. He stated that the veteran reported erectile dysfunction, but that this could not presently be evaluated. The examiner further indicated that either a cystoscopy or a urethrogram would be needed to rule out any intraurethral abnormalities, but that, in light of the 1988 cystoscopy, he doubted "very much" that the veteran had such a problem. Another VA urologist submitted an addendum to that report in April 1994. After reviewing the veteran’s records, including the prior report, that examiner concluded that the veteran had no demonstrable organic pathology of the urinary tract. He indicated that the claimed impotence, if present, had no relation to the prostate biopsy. The examiner also noted that there were no findings suggestive of diabetes insipidus as a cause for the veteran’s reported frequent voiding of large amounts of urine. The veteran has also submitted a letter from a private physician dated in March 1994. The examiner noted the veteran’s reported history of occasional dysuria, nocturia once or twice a night, significant urinary urgency, occasional urinary hesitancy, significant post-void dribbling, and an occasional sensation of incomplete bladder emptying. He also noted the veteran’s report of chronic constipation and recent onset of erectile dysfunction. The veteran denied to that examiner any hematuria or decrease in flow or caliber of the urinary stream. On examination, urinalysis was normal. The prostate was found to be without definite nodules. It was the examiner’s impression that the veteran had chronic prostatitis. He started the veteran on antibiotics, and counseled him on avoiding urinary stimulants and the need to follow certain constipation precautions. There is no indication in the record of the veteran having hypertension. Analysis Service connection for a chronic back disorder Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Each disabling condition shown by a veteran’s service records, or for which he seeks service connection, must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (West 1991). Satisfactory lay or other evidence that injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation during active service. 38 C.F.R. § 3.304 (1994). For a showing of 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Additionally, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Despite the few notations of complaints of back pain during service, and the veteran’s report of a history of back trouble at the time of his retirement examination, the evidentiary record is essentially devoid of any abnormal clinical findings regarding the veteran’s back. The only reported abnormal finding pertaining to the veteran’s back found in the record is the notation in the service medical records in February 1977, where it was noted that there was marked tenderness to palpation of the lower paraspinous muscles. No examiner has assigned a diagnosis of any chronic back disorder (other than chronic low back pain noted by the March 1993 VA examiner) or otherwise indicated that such a disorder was present. Although the veteran has testified that he has had chronic, constant back pain since 1977, the clinical records do not corroborate his claim, except for the notation on his retirement examination report of his reported history of back pain. Prior to his current claim for service connection, the records note only rare, widely-spaced outpatient visits during which he made any reference to back symptoms. Moreover, no back pathology has been identified to serve as a basis for a grant of service connection. Therefore, the Board finds that incidents of reported back pain in service were acute and transitory, and resolved without residual disability. The Board notes that, since filing his claim for service connection, the back symptomatology the veteran states he had during service has varied widely. This apparent changeable history of his claimed back disorder renders his contentions and hearing testimony much less credible in this regard. More importantly, service connection requires the presence of a current disability which is related to an injury or disease incurred in service. The veteran’s hearing testimony notwithstanding, the evidentiary record simply does not demonstrate that the veteran now has any chronic back disorder which is in any way attributable to service. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against the veteran’s claim. Accordingly, service connection for a chronic back disorder is not established. Compensable rating for residuals of a biopsy for a prostatic nodule In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran’s ability to engage in ordinary activities, to include employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). Although regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, No. 93-76, slip op. at 5 (U.S. Vet. App. Sept. 27, 1994). In evaluating the veteran’s claim, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The veteran’s prostatic disability is currently rated as a benign neoplasm of the GU system. Diagnostic Code 7529 provides that such impairment is to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. Prostate gland injuries, infections, hypertrophy, and postoperative residuals are to be rated on the basis of voiding dysfunction or urinary tract infection, whichever is predominant. Code 7527. The lowest compensable evaluation (30 percent) on the basis of renal dysfunction requires the presence of constant or recurring albuminuria with hyaline and granular casts or red blood cells in the urine, or transient or slight edema or hypertension at least 10 percent disabling under Code 7101. A noncompensable rating is to be assigned where there is no albuminuria or in cases where there is no history of acute nephritis, or with hypertension which is noncompensable under Code 7101. 38 C.F.R. § 4.115a (1994). A compensable evaluation for hypertension requires that the diastolic pressure be predominantly 100 or more, or that continuous medication is shown to be necessary for control of diastolic pressure readings predominantly 100 or more. Code 7101. Voiding dysfunction is to be rated on the basis of urine leakage, frequency, or obstructed voiding. Urinary incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times each day warrants a 20 percent evaluation. Daytime voiding intervals between two and three hours or awakening to void two times per night warrants a 10 percent rating. No lesser schedular rating is available on either of those bases. A 10 percent evaluation may also be assigned where there is stricture disease which requires dilatation every two or three months. For obstructive symptomatology with or without stricture disease which requires dilatation once or twice a year warrants a noncompensable rating. 38 C.F.R. § 4.115a. Urinary tract infection, requiring long-term drug therapy, 1-2 hospitalizations a year and/or requiring intermittent intensive management, warrants a 10 percent rating. A 30 percent rating requires recurrent symptomatic infection requiring drainage/frequent hospitalization, and/or requiring continuous intensive management. 38 C.F.R. § 4.115a. In an effort to assist the veteran in the development of his claim, the Board remanded the case so that a full urological workup could be accomplished in an effort to determine all symptoms reasonably attributable to the prostatic node biopsied in service as well as to explore the claimed symptom of urinary frequency and urgency. As noted heretofore, it was concluded by the VA urologist that the veteran had "no demonstrable organic pathology of the urinary tract." The clinical records developed during service in 1988 indicate that complaints of urinary frequency prompted the outpatient visit where the prostatic nodule was first noted. However, evaluation of the prostatic nodule, which included cystoscopy and prostatic biopsy, was completely normal, despite the noted "vertical bladder" found on IVP. Subsequent VA evaluation has revealed no prostatic or other GU abnormality. The only clinical evidence of any GU abnormality is contained in the March 1994 letter from a private physician. Although the examiner diagnosed the veteran as having chronic prostatitis, he did not have the opportunity to review the clinical record. It is clear from that letter that the diagnosis and treatment were based entirely on the veteran’s symptoms as reported by him. In fact, that examiner reported no abnormal clinical findings. The Board finds that the private examiner’s letter regarding the presence of chronic prostatitis has little probative value in this case: there is no clinical evidence of chronic prostatitis during service or until several years after service; the private examiner’s conclusion is not supported by any current clinical findings; and there is no clinical evidence that, even if present, chronic prostatitis is in any way related to the veteran’s service-connected prostate nodule. Moreover, in response to the RO’s inquiry, the April 1994 VA urologist did review the veteran’s clinical record and the recent clinical findings, and concluded that the veteran had no organic pathology of the urinary tract or residuals of the service- connected prostatic biopsy. The veteran’s urinary complaints were not found to be attributable to the prostatic "nodule" noted in service. The Board also finds particularly relevant the fact that the veteran’s complaints of urinary frequency predate discovery of the prostatic nodule (and so could not be a residual of the biopsy). Further, there is no clinical evidence, despite extensive workup and evaluation in service and since separation from service, that the veteran currently has any residuals of his service-connected prostate disorder. Although an IVP in service reportedly did show a bladder abnormality, no such abnormality has been demonstrated subsequently on cystoscopy, and even if such an abnormality is present, there is no clinical evidence that it is related in any way to the service-connected prostate disorder. In the absence of medical opinion to the contrary, the Board cannot conclude that every symptom of which the veteran may complain which might be referable to the GU system is automatically related to the service-connected prostate nodule. In this case, there simply is no clinical evidence to attribute his complaint of urinary frequency as a residual of the biopsy of the prostate nodule. The veteran’s own opinion in this regard is entitled to no probative weight. Jones (Wayne L.) v. Brown, No. 93-315, slip op. at 5 (U.S. Vet. App. Nov. 14, 1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Moreover, the record does not reflect any other symptoms or clinical findings which physicians have considered to be related to the prostate nodule. As noted above, the issue of whether the veteran has another disorder of the genitourinary tract which is manifested by frequent urination has not been developed for appellate review. Considering all the evidence and the applicability of the provisions of 38 U.S.C.A. § 5107(a), the Board believes that the preponderance of the evidence weighs strongly against a finding that any of the veteran’s current urinary tract complaints, including erectile dysfunction, are in any way related to his service-connected prostate disability. Since no other current symptoms or abnormal clinical findings related to the veteran’s prostate have been objectively established the Board concludes that an evaluation greater than the noncompensable rating currently in effect for this disability is not warranted at this time under any applicable provision of the rating schedule. In exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran’s average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, inasmuch as no current impairment whatsoever due to the service-connected disability has been demonstrated, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the veteran’s disability level. There is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to his prostate disorder, residuals of biopsy for a prostatic nodule, that would take the veteran’s case outside the norm so as to warrant an extraschedular rating. Accordingly, an increased (compensable) rating for residuals of a biopsy for a prostatic nodule must be denied. ORDER Service connection for a chronic back disorder is denied. An increased (compensable) rating for residuals of biopsy for a prostatic nodule is denied. N. R. ROBIN 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.