BVA9507828 DOCKET NO. 91-42 093 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for prostatic hyperplasia and a kidney disorder secondary to service connected prostatitis. 2. Entitlement to an increased rating for prostatitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Division of Veterans Affairs, North Carolina WITNESS AT HEARING ON APPEAL Appellant and a Friend ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran had active military service from November 1942 to November 1945. The veteran has been represented throughout his appeal by the North Carolina Division of Veterans Affairs. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions of the Winston-Salem, North Carolina Regional Office (RO). By a rating decision of April 1990, the RO denied the veteran's claim for an increased rating for prostatitis. The veteran and a friend appeared and offered testimony at a hearing before a hearing officer at the RO in June 1991, at which time the veteran raised the issue of entitlement to service connection for a kidney disorder and prostatic hyperplasia, secondary to service connected prostatitis. A transcript of the hearing is of record. In November 1991, the Board remanded the case to the RO for further development. By a rating action of August 1993, the RO confirmed its prior denial of the veteran's claim for an increased rating for prostatitis; the RO also denied the veteran's claim for service connection for prostatic hyperplasia and a kidney disorder on a secondary basis. The case has now been returned to the Board for further appellate consideration. In February 1984 the Board denied primary and secondary service connection for kidney disease and impotence. The decision did not specifically address service connection for prostatic hyperplasia. As regards the issue of secondary service connection for a kidney disorder, the evidence received since the February 1984 Board decision is considered new and material and serves to reopen the claim. Inasmuch as the RO also addressed this issue on a de novo basis, the Borad may now proceed with its own de novo review of the record. In December 1993, a Board medical adviser issued an opinion with respect to the issues in question. The opinion was reviewed by the veteran and his representative in April 1994. In Austin v. Brown,6 Vet.App. 547 (1994), the United States Court of Veterans Appeals (Court) vacated and remanded a January 1993 decision of the Board that relied upon a Board Medical Adviser opinion. In so doing, the Court raised several questions about procedures used in requesting such opinions. The Court concluded, among other things, that the Board decision on appeal rested upon a medical opinion procured by a process that violates certain VA regulatory provisions. As such, the Board has determined that it cannot rely on the medical adviser's opinion in this particular case. As such, it sought a medical opinion from the office of the Chief Medical Director of the VA in August 1994. That opinion was received at the Board in November 1994, and a copy was furnished to the veterans representative for review on December 20, 1994. No further comment has been received from the veterans representative. The case is now ready for consideration by the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his service connected prostatitis condition is much worse than reflected by the assigned rating. The veteran points out that he has problems with incontinence, and he sometimes accidentally urinates, soiling his clothes; as a result, the veteran indicates that he must wear protective pads. The veteran further points out that he has constant pain in the groin area as a result of his prostatitis. It is also maintained that the veteran suffers from a kidney disorder as well as other prostate disorders which are caused by his service connected prostatitis. It is requested that the veteran be accorded the benefit of the doubt. 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 veteran's claims for service connection for prostatic hyperplasia and a kidney disorder secondary to service connected prostatitis, as well as an increased rating for prostatitis. FINDINGS OF FACT 1. Service connection is currently in effect for prostatitis, rated as 10 percent disabling since September 1980. 2. The veteran's prostatic hyperplasia is not etiologically related to his service connected prostatitis. 3. The service-connected prostatitis is not shown to have caused a kidney disorder. 4. Recent clinical data do not show more than a moderate disability as the result of the veteran's service-connected prostatitis. CONCLUSIONS OF LAW 1. The veteran's prostatic hyperplasia and a kidney disorder are not proximately due to or the result of the veteran's service-connected prostatitis. 38 U.S.C.A. 5107 (West 1991); 38 C.F.R. § 3.310(a) (1993). 2. The schedular criteria for a rating in excess of 10 percent for prostatitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.115(a), Part 4, Code 7527 (effective February 17, 1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that we have found that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, we find that he has presented claims which are plausible. Moreover, after careful review of the evidentiary record, we are also satisfied that all relevant facts have been properly developed. Therefore, no further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Some of the basic facts are not in dispute and may be briefly described. The veteran served on active duty from November 1942 to November 1945. Service medical records reflect that the veteran was seen on several occasions for complaints of pain and swelling of the testicles and scrotum. A diagnosis of gonococcus infection of the urethra was changed to prostatitis, chronic, nonvenereal in July 1945. On the occasion of the separation examination in November 1945, it was noted that the veteran had a history of gonococcal infection. Medical evidence of record in the 1970's demonstrate that the veteran received treatment for symptoms of prostatitis, to include dysuria and prostate pain. In November 1979, the veteran was admitted to a hospital for evaluation, due to complaints of constipation, dysuria and obstipation; he also complained of urinary frequency and bacteriuria. It was noted that digital rectal examination revealed a very slightly and somewhat irregular prostate, with no firm nodules. An intravenous pyelogram revealed prostatic enlargement with bladder outlet obstruction, associated with poor emptying of the bladder, as well as trabeculated bladder; the right kidney was at least 2 cm smaller in size than the left, suggestive of possible renal artery disease on the right. Medical evidence of record from 1980 to 1982 show that the veteran continued to complain of prostate pain; he also complained of difficulty with his bowel. Among these records is a VA hospital summary, dated in September 1980, which reports that the veteran had been followed at the genito- urinary clinic and was believed to suffer from prostatitis; he was maintained on Minocin. On examination, the testes were tender, left greater than right. The attending physician indicated that it was felt that the veteran's symptoms involving his urinary tract were due to chronic prostatitis and probable benign prostatic hypertrophy. When seen in May 1981, the veteran complained of discharge from his penis with burning on urination. Examination revealed an enlarged and tender prostate. The diagnosis was prostatic hyperplasia with obstructive uropathy. The veteran was afforded a VA compensation examination in October 1981, at which time it was reported that he apparently had a transurethral resection of the prostate (TURP) 7 years previously for obstructive uropathy. The veteran indicated that he had to get up at least 4 to 5 times every night in order to urinate. It was noted that the veteran had much difficulty in emptying his bladder; he had a weak and feeble stream. The veteran also indicated that following urination, he had dribbling for some time and often soiled his clothes. He also reported marked hesitancy in initiating his urinary stream. The examination revealed the same findings as previously reported in May 1981. Received in March 1990 were VA medical records covering the period from April 1985 to January 1990. These records show that the veteran continued to receive treatment for complaints of frequency and burning with urination. The veteran also complained of occasional urinary tract infections. In May 1986, the veteran was admitted to the hospital for direct vision internal urethrotomy, meatotomy and possible TURP. He complained of decreased force of stream, straining, occasional hesitancy, intermittence, double voiding, nocturia 3 to 4 times and occasional dysuria. Examination of the genitals revealed a normal penis with mild meatal stenosis. The testes were tender, bilaterally, left greater than right. Rectal examination revealed a 1+ prostate which was smooth. A retrograde urethrogram was done in May 1986 which revealed the presence of a phimo stricture at the junction of the penile and membranous urethra; the veteran subsequently underwent direct vision internal urethrotomy and TURP. The discharge diagnosis was prostatic hyperplasia and urethral stricture disease. The veteran appeared at a hearing before a hearing officer at the RO in June 1991, at which time he offered testimony concerning his prostatitis and other genito-urinary disorders. The veteran argued that his service connected condition resulted in other problems with his prostate gland and his kidneys. He indicated that, since the operation, his testicles had been sore almost all the time. The veteran reported problems with incontinence; he stated that he had to urinate 3 or 4 times per hour, and he sometimes soiled his clothes. The veteran indicated that, at times, the prostate became enlarged and very tender and painful. Of record is a VA hospital report which shows that the veteran was admitted to the hospital in January 1992 for evaluation of the urinary tract. The veteran complained of urinary urgency, and occasional increased incontinence. The veteran also complained of some pain in the left hemiscrotum and stated that he might have had his left testicle removed many years ago. On examination, it was observed that the left hemiscrotum was almost empty; the right testis was soft to palpation. The residual prostate was small and benign to palpation. An ultrasound of both kidneys was normal, with no obstruction seen. A Cystourethroscopy showed previous bladder neck resection without obstruction. There was no evidence of prostatitis. The diagnoses were status post TURP, urinary urgency; no evidence of urethral obstruction; urethral stricture, bulbous, slight; atrophic testis, right. The veteran was afforded a VA compensation examination in January 1992, at which time he complained of urinary urgency with occasional incontinence and some pain in the left hemiscrotum. Examination revealed similar findings as reported above. In addition, it was noted that urinalysis and urine culture were both normal. The Board notes that, in order to establish secondary service connection for a disability, the evidence must show that the disability is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a). In this regard, the Board observes that the medical evidence of record fails to demonstrate the presence of any kidney disorder which can be associated with the veteran's service connected prostatitis. We note that while a possible renal disorder was diagnosed in 1979, no etiology was reported. There is no clinical data of record which associates diagnosed prostatic hyperplasia or a kidney disorder with prostatitis. Further, the existence of any prostate disorder, other than prostatitis, such as prostatic hyperplasia, is more likely due to the veteran's advanced age. As noted by the medical opinion of the Acting Director of the Medical Service in November 1994, some 40 years after service the veteran developed as an age related process, prostatic hyperplasia and prostatic hypertrophy. The opinion continued, in pertinent part, as follows: "On January 31, 1992, he was examined by a VA staff urologist who noted that he had undergone TURP (Transurethral Resection Prostate) about 8 years earlier. On physical examination he found: "residual prostate was small and benign to palpation. US of kidneys and ureter was negative. Urinalysis and urine culture both were normal. Cysto revealed slight urethral stricture and no evidence of bladder outlet obstruction." The physician was of the opinion that there was no evidence of prostatitis in January 1992. The only finding, the urethral stricture was found to be due to other causes. The physician found that the veteran's service-connected prostatitis did not cause a kidney disorder or prostatic hyperplasia. Under these circumstances, the Board concludes that there has not been established a valid basis for a grant of service connection for prostatic hyperplasia and kidney disorder, secondary to service connected prostatitis. Moreover, effective February 17, 1994, under the criteria in the Schedule for Rating Disabilities, prostatitis is rated on the basis of voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115(a); Diagnostic Code 7527. In addition, the schedular criteria call for a 10 percent disability rating for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with recurrent urinary tract infections secondary to obstruction. A 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. The Board observes that the recent VA evaluation in January 1992 reported that the prostate was moderately enlarged and tender to palpation. The veteran complained of frequent urination with occasional incontinence. However, there was no finding of urinary retention requiring intermittent or continuous catheterization; urinalysis and urine culture were both normal. Significantly, the examiner noted that there was no evidence of prostatitis. Based on these clinical findings, the Board concludes that an increased schedular evaluation above the currently assigned 10 percent is not warranted. In reaching this decision, the Board has considered the doctrine of granting the benefit of the doubt to the veteran but does not find the evidence is approximately balanced such as to warrant its application. 38 U.S.C.A. § 5107(b). ORDER Service connection for prostatic hyperplasia and kidney disorder, secondary to service connected prostatitis is denied. An increased evaluation for prostatitis is denied. _______________________________ BRUCE E. HYMAN 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.