BVA9505811 DOCKET NO. 90-49 784 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for chronic prostatitis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION The veteran served on active duty from March to September 1945 and from January 1946 to January 1947. He represents himself in this appeal, pro se. A power of attorney to the American Legion was revoked by the veteran in a letter dated in December 1994. This appeal arises from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at Winston-Salem, North Carolina. In May 1990, the Board of Veterans Appeals (Board) denied service connection for a psychiatric disorder and for prostatitis. The veteran appealed to the United States Court of Veterans Appeals (Court). In July 1992, the Court affirmed that portion of the May 1990 Board decision denying service connection for a psychiatric disorder and vacated and remanded that portion, of the decision denying the veteran's claim for service connection for prostatitis. The Court held that new and material evidence to reopen the claim of service connection for prostatitis had been received in the form of the June 1989 letter from Bruce G. Alexander, M.D. Since the claim was considered reopened, the Board had a duty to assist the veteran in obtaining alleged treatment records going back to service. Accordingly, the Board's May 1990 decision was vacated and remanded to the Board for readjudication, as directed. In compliance with the Court's decision, the Board remanded the appeal to the RO in March 1993 for additional development. That development has been completed and the case has been returned to the Board for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that he was treated for prostatitis by VA while still in service, in December 1946, at a hospital in Swannanoa, North Carolina, which was a branch of the VA hospital at Asheville, North Carolina. He asserts that this hospital at the time was in transition from being The Moores General Army Hospital to a VA hospital. He alleges pertinent treatment by an Army doctor, a Dr. Richard Conner, in late December 1946 and then by Dr. A. H. Burr, a VA doctor. He points out that an application for treatment for prostatitis in September 1947 was the second time he was treated for this condition by VA and was the report to which Dr. Armstrong referred in the June 1989 statement, held by the Court to constitute new and material evidence to reopen the claim. Due to claimed loss of records, he states that evidence of chronic prostatitis between 1948 and 1960 is lacking. He specifies that some records at both the RO in Winston-Salem and the VA Medical Center at Asheville, North Carolina, were lost. He asserts that the diagnosis of chronic prostatitis in September 1947 is consistent with service incurrence, as "chronic" means long- lasting or recurrent and Dr. Armstrong's June 1989 report supports the proposition that chronic bacterial prostatitis as diagnosed in September 1947 signified prior symptoms of prostatism, acute urethritis or prostatitis. It is requested that the benefit of all doubt be resolved in the veteran's favor. 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 evidence supports the claim to establish service connection for chronic prostatitis. FINDINGS OF FACT 1. All the evidence necessary for an equitable disposition of the veteran's appeal has been obtained by VA. 2. It is reasonably possible that chronic prostatitis developed during the veteran's latter period of service, in December 1946 or January 1947. CONCLUSION OF LAW Chronic prostatitis was incurred in wartime service. 38 U.S.C.A. §§ 1110, 5107(a), (b) (West 1991); 38 C.F.R. §§ 3.102, 3.303(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The available service medical records show that the veteran had no complaint, finding or diagnosis of any abnormality of the prostate gland. There were no service medical records on file dated between the separation examination on December 3, 1946, which showed no sign or symptoms of prostatic abnormality, and separation from active duty in January 1947. On the "MEDICAL CERTIFICATE" portion of an application from the veteran for VA treatment in September 1947, he complained of the onset of urethral discharge in the morning of the day he was seen, and of dysuria 4 days previously. On physical examination, the prostate gland was boggy. Urethral smear and culture showed no gonococcus, but the culture showed non-hemolytic staphylococcus. Chronic prostatitis was diagnosed. On such a "MEDICAL CERTIFICATE" in November 1947, the veteran reportedly had a history of chronic prostatitis with morning mucoid discharge again, the smear of which was shown to have been non-venereal. Subsequent such "MEDICAL CERTIFICATES" dated from March 1948 to September 1949 indicate chronic prostatitis manifested by slight prostatic hypertrophy. In March 1948, it was stated that he had had prostatic massages in a VA hospital and that urethral discharge had ceased a week previously. Subsequently dated VA clinical reports indicate at least a history of chronic prostatitis. A VA outpatient clinical report in April 1994 indicated symptoms of dysuria and left orchialgia. The prostate gland apparently was enlarged, 2 plus, and tender. The clinical impressions were chronic prostatitis and orchialgia with a very hard and tender left epididymis. In August 1982 and October 1982, [redacted], a reported supervisory medical machine technician, made statements that he had known the veteran since December 1946, when the veteran had been treated at the VA hospital, Swannanoa, North Carolina, for a prostate condition. At the time Mr. [redacted] stated that he was a technician in the Urology Section. A June 1989 statement was received from Bruce G. Armstrong, M.D., who related that he had last seen the veteran for treatment of chronic bacterial prostatitis in February 1984. Dr. Armstrong had reviewed the September 1947 VA medical report regarding the veteran's 4 day history of urethral discharge and dysuria and felt that the resulting diagnosis of chronic bacterial prostatitis was certainly incorrect in that the veteran had no prior symptoms of prostatism or prostatitis. His most likely diagnosis at that time was a nonspecific urethritis. Had he had chills, fever and back and perineal pain, a diagnosis of acute bacterial prostatitis could have been entertained. Dr. Armstrong concluded that, to make a diagnosis of chronic bacterial prostatitis on the initial evaluation was inappropriate. He explained that most cases of chronic bacterial prostatitis are made after an acute urethritis or prostatitis has occurred. Symptoms persist for many months and examinations of prostatic secretions and post massage urines will show persistent inflammatory cells and sometimes post massage urine cultures and cultures of prostatic secretions will show the causative organism. The transcript (T.) of the veteran's personal hearing before a hearing officer at the RO in December 1989 is of record. He testified that he was treated for prostatitis for the first time on terminal leave from active duty in December 1946 by an Army doctor named Dr. Rich Connor and it was this treatment that Mr. [redacted] remembered and recorded in his statements. T. at 3. He stated that at the time he was treated by VA for prostatitis in the late 1940's one was not eligible for such treatment unless the condition treated was service-connected. T. at 5-6. Pursuant to the Board's March 1993 remand, the RO requested the veteran to specifically state the date of initial treatment for prostatitis and complete and return enclosed forms authorizing the release of medical records for Moores General Hospital and Dr. Burr, from whom he received treatment for prostatitis beginning in 1947. A complete search of inpatient and outpatient clinical records by the RO found that the oldest was in 1968. A complete search of outpatient and inpatient medical records at VA Medical Center, Asheville, North Carolina, found nothing dated in 1946 or 1947. II. Analysis Service connection requires a finding of the presence of a chronic disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 314 (1993). We have re-examined the evidence of record in this case and have found that nothing the veteran has contended and has testified to, is inconsistent with other pertinent documentary evidence in the record. He states he was first treated for prostatitis while in service after the service discharge examination on December 3, 1946, and prior to separation from service on January 25, 1947. There is supporting medical evidence of the presence of chronic prostatitis in September 1947 about 8 months after discharge from the latter period of service. Dr. Armstrong was of the opinion that there would have had to have been earlier symptoms for a diagnosis of chronic prostatitis to have been made in September 1947 and the Court attached significant probative value to that opinion. A medical machine technician in a urology section of a VA hospital is probably not a medical professional competent to diagnose prostatitis or some other prostate condition. Espiratu v. Derwinski, 2 Vet.App. 492 (1992). However, the statements from [redacted] in August 1982 and October 1982 are sufficient to establish that in late 1946, the veteran was under treatment in the urology section of the VA hospital. This lends support to the other evidence pointing to the possible development of prostatitis at that time. Chronic prostatitis is demonstrated to exist at the current time by 1994 VA clinical records. The veteran has requested that the benefit of all doubt be resolved in his favor for the allowance of his claim. The benefit-of-the-doubt rule requires an approximate balance of the positive (favorable) and negative (unfavorable) evidence relevant to the claim. In this case, the evidence is in equipoise. It is at least as likely as not that chronic prostatitis developed during service between December 3, 1946 and January 25, 1947. ORDER Service connection for chronic prostatitis is granted. BRUCE E. HYMAN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.