Citation Nr: 0004625 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 96-12 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for chronic prostatitis and a left testicle disorder due to VA treatment rendered in November 1987. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for right rib pain and a back disorder due to VA treatment rendered in June 1988. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Friend ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had thirty-one days of active service from June 1948 to July 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the St. Petersburg, Florida Regional office (RO) of the Department of Veterans Affairs (VA) which denied the appellant's claims for benefits pursuant to 38 U.S.C.A. § 1151 based on medical treatment performed in VA facilities in November 1987, and June 1988. In August 1999, a hearing was held in St. Petersburg before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 1999). During that hearing, the appellant submitted a written waiver of consideration of additional evidence by the RO. See 38 C.F.R. §§ 19.37, 20.1304. This evidence consisted of two sets of radiographic films, dated in June 1988, and October 1988, as well as private treatment records dated between 1995 and 1997. The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for right rib pain and a back disorder, due to VA treatment rendered in June 1988, will be addressed in the REMAND section which follows the ORDER section in the decision below. FINDINGS OF FACT 1. The appellant was treated for prostatitis in April 1987; the infection apparently cleared. The appellant then underwent a prostate biopsy at a VA facility in November 1987, and subsequently developed a periprostatic hematoma; left epididymitis and chronic prostatitis have been diagnosed, and the medical evidence of record indicates there is a causal relationship between the prostate biopsy and some of the appellant's current genitourinary conditions. 2. Presuming the credibility of the evidence concerning the prostate and testicle claim, the claim is not inherently implausible. CONCLUSION OF LAW The claim of entitlement to compensation for chronic prostatitis and a left testicle disorder pursuant to 38 U.S.C.A. § 1151 is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered at the outset of the analysis of any issue is whether the appellant's claim is well-grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter Court) has said that the statutory "duty to assist" under 38 U.S.C.A. § 5107(a) generally does not arise until there is a well-grounded claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A person who submits a claim has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a). Where such evidence is not submitted, the claim is not well- grounded, and the initial burden placed on the person who submits a claim is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). See also Caluza v. Brown, 7 Vet. App. 498 (1995). Where the determinative issue involves medical causation or medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Lay assertions cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Id. Generally, where any veteran shall have suffered an injury as a result of hospitalization, medical or surgical treatment or examination, and such injury or aggravation results in additional disability to the veteran, disability compensation shall be awarded in the same manner as if such disability were service-connected. 38 U.S.C.A. § 1151. The Board notes that the appellant's § 1151 claims in this case were filed in September 1993, and that the rating decision denying those claims was issued in June 1995. 38 C.F.R. § 3.358, the regulation implementing 38 U.S.C.A. § 1151, provides, in pertinent part: (c) Cause. In determining whether such additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of...hospitalization, medical or surgical treatment..., the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of...hospitalization, medical or surgical treatment,.... Therefore, for entitlement to benefits pursuant to 38 U.S.C.A. § 1151 to be granted, it is required that the facts, as shown by the evidence, establish that the veteran sustained additional disability as the result of medical treatment provided by VA. 38 C.F.R. § 3.358. The appellant is seeking entitlement to compensation benefits for additional disability pursuant to 38 U.S.C.A. § 1151 predicated on the contention that it was the medical treatment rendered by VA physicians in November 1987 that caused the appellant to suffer from chronic prostatitis and left testicular pathology. King v. Brown, 5 Vet. App. 19, 21 (1993) held that "evidentiary assertions [by the veteran] must also be accepted as true for the purpose of determining whether the claim is well-grounded. In April 1987, the appellant was treated with antibiotics for prostatitis; the infection apparently cleared. Based on the presence of a nodule, in November 1987, the appellant underwent a prostate biopsy at a VA hospital; he was not suffering from prostatitis at the time of the biopsy. A VA clinic note, dated in November 1987, five days after the biopsy, included an assessment that the appellant was suffering from prostatitis after prostate biopsy. A VA clinic note, dated five days later, contains a clinical assessment of post-biopsy prostatitis, possibly now with epididymitis. The plan was to refer the appellant for evaluation of possible post-biopsy complications. A February 1998 VA clinic note included clinical impressions of left testalgia and mild prostatitis. Review of the medical evidence of record indicates that the appellant has been treated numerous times, by VA and private providers, in the intervening years for diagnoses of chronic prostatitis, left testicular pain, left epididymitis and tender cord. The law and regulations require that for a well-grounded claim of benefits under § 1151, there must be evidence of a nexus between VA treatment and some additional disability. In other words, benefits can be awarded only if, after VA treatment, there is additional disability attributable to that VA treatment. If a disorder deteriorates after VA treatment and that deterioration is due to the underlying disability itself, or some intercurrent (non VA treatment) cause, there is no entitlement to VA compensation benefits under 38 U.S.C.A. § 1151 because it can not be found that the additional disability is due to VA treatment. Here, there is some competent (medical) evidence of a possible nexus between the appellant's treatment at a VA hospital and the development of chronic prostatitis and/or epididymitis. ORDER The claim of entitlement to benefits under 38 U.S.C.A. § 1151 for prostatitis and a left testicle disorder secondary to the November 1987 prostate biopsy at a VA hospital is well- grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to 38 U.S.C.A. § 1151 benefits for prostatitis and a left testicle disorder secondary to the November 1987 prostate biopsy at a VA hospital is well-grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). There is additional evidence and opinion needed on this issue. While there is some competent medical evidence of record relating the appellant's chronic prostatitis and left epididymitis to the prostate biopsy and subsequent infection, the record is unclear whether all of the appellant's current left testicle problems or prostatitis can be attributed to the prostate biopsy and/or healing difficulties related to the biopsy incision sites. Further, the exact nature and extent of the pathology is not clear in the record. In regard to the 38 U.S.C.A. § 1151 claim for the right ribs, additional procedural development is indicated. For instance, review of the medical evidence of record indicates that the Iowa VA radiologist's report from the October 1988 x-ray examination of the appellant has not been associated with the claims file. However, the appellant submitted the actual x-rays at his August 1999 Travel Board hearing; if the RO is unable to obtain a copy of the report, the x-rays submitted by the appellant can be read by a radiologist. Review of the medical evidence of record indicates that the appellant sought treatment for low back pain on June 10, 1988. A VA ER report, dated June 15, 1988, states that the appellant presented for treatment complaining of severe right rib cage pain, lower back pain and headaches after falling six to eight feet. On physical examination he was noted to have a tender posterior chest wall. Review of the medical evidence of record also reveals that the appellant has been treated numerous times at VA facilities for complaints of various musculoskeletal pains; his right rib cage area has been treated with trigger point injections. The appellant contends that he suffered from broken ribs and cracked vertebrae as a result of the June 1988 fall and that the Florida VAMC sent him home in June 1988, without any treatment for those conditions which remained undiagnosed until he was seen in October 1988 at the Iowa VAMC. He further contends that he currently suffers from a back condition requiring trigger point injections due to that lack of treatment. A written statement from a private physician, dated in September 1998, states that the appellant has suffered from chronic right rib pain since 1988. A February 1999 VA Pain Clinic note indicates that the appellant is currently diagnosed with chronic low back pain and myofascial pain syndrome. It is unclear whether this is in some way thought to be related to the fall and the reported lack of appropriate treatment. The appellant also testified during his August 1999 Travel Board hearing that he applied for Social Security Administration (SSA) disability benefits in 1992, and that his application was supported by private medical evidence; the claim was denied. It has been resolved in various cases, essentially, that although SSA disability decisions are not controlling for VA purposes, they are pertinent to the adjudication of a claim for VA benefits, and that the VA has a duty to assist the veteran in gathering SSA records. Collier v. Derwinski, 1 Vet. App. 413 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 181 (1992); and Brown v. Derwinski, 2 Vet. App. 444 (1992). In this case, all of the medical records utilized by the SSA in denying the appellant's 1992 claim should be obtained by the RO and associated with the claims file. In light of the considerations above, and in order to ensure that VA has met due process requirements, the case is REMANDED for the following: 1. The RO should obtain from the Iowa VAMC a copy of the October 1988 radiology report. If the report is unavailable, the RO should take appropriate steps to have the radiographs themselves reviewed, and interpreted. Appropriate findings should be associated with the claims folder. 2. The RO should obtain from the Social Security Administration copies of any medical records utilized in determining the denial of the appellant's 1992 claim of entitlement to disability benefits, if any. The appellant's assistance in obtaining any pertinent records should be requested as indicated. 3. The RO should obtain from the appellant the names and addresses of VA and private physicians and/or medical facilities which have provided him any treatment for his prostatitis, epididymitis, and right rib pain since 1987/1988, and secure all available relevant reports not already of record from those sources. To the extent there is an attempt to obtain records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his representative should also be informed of the negative results. 38 C.F.R. § 3.159. 4. Following the above, the RO should arrange for a review of the appellant's records and examination of the appellant by a urologist. The examiner should review the claims file, examine the appellant, and provide findings that encompass all residual impairment due to any genitourinary pathology. The examiner should then furnish opinions concerning the following: (a) What were the manifestations of genitourinary pathology present prior to the November 1987 prostate biopsy? (b) What, if any, are the current manifestations of the appellant's genitourinary disorder(s)? (c) Did the appellant develop any clinically identified additional genitourinary disability as a result of the November 1987 VA prostate biopsy or in the course of subsequent aftercare, specifically, are there any genitourinary residuals other than the "necessary consequences" of the prostate biopsy? Comparisons between the left and right testicles may be useful in discussions of any natural progress of the appellant's genitourinary problems. (d) The examiner should comment on the VA medical notes which link the appellant's prostatitis and left epididymitis with the November 1987 prostate biopsy. (e) If VA treatment is found to have caused additional genitourinary pathology, the examiner should identify the specific additional disability or disabilities caused by the particular VA treatment. The examiner is advised that negligence is not a matter at issue. The examiner should provide the findings in a written report. The examiner should specify the degree of medical probability that any additional disability is causally related to the November 1987 prostate biopsy, as opposed to the natural progress of any underlying disorder, and provide the rationale for the opinion. 5. The RO should review the claims file and ensure that all of the foregoing development is completed. If any development is incomplete, appropriate corrective action is to be implemented. 6. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 7. After completion of the above, the RO should readjudicate the appellant's § 1151 claims on the appropriate legal bases and with consideration of all pertinent regulations. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of an appropriate supplemental statement of the case. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON Member, Board of Veterans' Appeals