Citation Nr: 1205660 Decision Date: 02/15/12 Archive Date: 02/23/12 DOCKET NO. 08-22 196 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for urinary tract infections (UTI). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from August 2002 to January 2007. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Waco, Texas, VA RO. FINDING OF FACT The Veteran does not have a chronic disorder manifested by urinary tract infections which either began during or was otherwise caused by her military service. CONCLUSION OF LAW Criteria for service connection for urinary tract infections have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In February 2007, in a claim from the Veteran seeking service connection, she asserted that her urinary disability began between October 2005 and November 2006. In March 2011, the Veteran testified at a hearing before the Board that she developed a UTI shortly after being deployed to Kuwait which later developed into a kidney condition. She explained that her first UTI appeared after approximately two weeks in Kuwait. She recalled it being extremely hot, leading her to consume a lot of Gatorade, and she recalled a doctor explaining to her that drinking too much "powdered stuff" could lead to the urinary infection. The Veteran was asked how many times she was treated for UTIs in service to which she replied a "lot of times." She estimated that during the first deployment she was treated between 10 and 12 times, and then upon her return she was treated several more times. She asserted that during her second deployment the UTIs came back, and that following service she experienced a couple episodes in 2008 that caused her to be hospitalized for 10 days. She was asked about the hospitalization, and she explained that it started like a regular UTI, but then she began experiencing a fever and back pain. She noted that after being taken to the hospital she was diagnosed with kidney stones. At her hearing, the Veteran submitted a number of service treatment records showing in-service treatment for UTIs. For example, in January 2003, the Veteran was assessed with a UTI and prescribed Cipro. In January 2004, she was seen for a UTI. In July 2005, she was seen for urinary problems, such as burning. In October 2005, she was diagnosed with a UTI. In September 2006, she was again seen for urination problems. The Veteran was discharged from service in January 2007. On a medical history survey completed in conjunction with her separation physical, the Veteran reported a history of UTIs. In an effort to determine whether the Veteran's treatment in service for UTIs was evidence of a chronic disability, she was afforded a VA examination in April 2007. At the examination, the Veteran reported having experienced as many as six UTIs during her military career. However, at the time of the examination, the Veteran was asymptomatic, and the examiner diagnosed her with a urinary tract infection in remission. The Veteran's claim was denied in May 2007. In March 2008, she filed a notice of disagreement explaining that at the time of her April 2007 VA examination, she had not experienced urinary problems for a while; but she asserted that since that time, she had once again begun to experience increased urinary problems, eventually leading to her being hospitalized for a week in March 2008. VA treatment records confirm that the Veteran was hospitalized in March 2008 with a presumptive diagnosis of acute pyelonephritis. The assessment at a VA facility was acute pyelonephritis, right, with past history of recurrent UTI's. She was also noted to have hydronephrosis with distal ureterolithiasis, right, resolved; and hypoalbuminemia. Treatment records from Metroplex Medical Center (where the Veteran was initially treated prior to being transferred to VA) are also of record, but show no more than the diagnosing of kidney stones. Accordingly, the Veteran was provided with a second VA examination in November 2008 in an effort to determine whether any of the post-service problems, including those treated during the hospitalization, were related in any way to her urinary problems in service. Following a physical examination and a review of the claims files, the examiner stated that the diagnoses were nephrolithiasis and acute pyelonephritis, resolved. The examiner observed that the Veteran was treated for UTIs while in the service, and that she was treated for pyelonephritis and nephrolithiasis in March 2008. He then explained that while a kidney infection can be considered a form of UTI, not all UTIs are kidney infections, as urethritis and cystitis are also considered UTIs. Additionally, he added that usually a UTI is treated with antibiotic therapy and resolves. The pyelonephritis in March 2008 was considered an acute episode, very likely brought on by nephrolithiasis. The examiner continued to opine that there was no medically-associated cause for nephrolithiasis from UTI infection, although the reverse may be the case. The examiner noted that there was no record of nephrolithiasis in the STRs, and concluded that it was less likely than not that the recent nephrolithiasis or pyelonephritis was caused by the UTI that the Veteran had during service. In January 2009, the Veteran was again seen for urinary problems. The urine analysis was contaminated, but given the Veteran's history of past UTIs, she was treated for a UTI. Following the Veteran's hearing before the Board, the Board sent the Veteran's claims file to obtain an expert medical opinion as to whether the Veteran's in-service urinary tract infections were causally related to her post-service urinary tract infections. In September 2011, two doctors, a urologist/surgeon and a chief of surgery, reviewed the Veteran's claims file, including her service treatment records, noting the in-service treatment of three apparent simple episodes of cystitis, with no documented culture studies done. The doctors were thus unable to relate her in-service episodes of cystitis to her post-service UTIs. With regard to the Veteran's post-service urinary disorders, the doctors observed that the Veteran was hospitalized with pyelonephritis in March 2008, which was subsequently shown to be renal colic. The pyelonephritis was secondary to the stone obstructing the right ureter, and when the stone passed, the Veteran's symptoms were relieved. The doctors opined that the nephrolithiasis with secondary pyelonephritis was less likely than not caused by the previous episodes of non culture proven cystitis. The Board sought additional clarification and support for the aforementioned opinions, and in November 2011, the doctors submitted a second letter, explaining that recurrent UTIs are usually considered for urological intervention when three or more occur in a single year; but, here, the Veteran's urinary symptoms occurred one to two years apart. They noted that the Veteran was admitted in 2008 with possible pyelonephritis, but the actual cause was ureteral colic as a result of a kidney stone. Here, the Veteran became secondarily infected from the kidney stone passage, and not from the previously alleged UTIs. The doctors explained that most episodes of cystitis are self-limited and resolve themselves without treatment. Here, the Veteran's cystitis like symptoms were not proven to be infectious by culture; as such, there was no way to document a possible infectious cause of the Veteran's current problems while in service. In this case, the Veteran has asserted that she has chronic UTIs which began in service and have continued to the present day. As a lay person, the Veteran is competent to report what comes to her through her senses. See Layno v. Brown, 6 Vet. App. 465 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is therefore considered to be competent to report being treated for UTIs in service and following service, and she can relate the symptoms she has experienced, such as burning. However, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, it is noted that the Veteran testified that she was treated for UTIs between 10 and 12 times during her first deployment, and then upon her return she was treated several more times. The Veteran indicated that during her second deployment the UTIs came back. This is potentially relevant as the doctors who provided the 2011 medical opinion indicated that UTIs are considered for urological intervention when three or more occur in a single year. However, while the Veteran testified to more than a dozen in-service UTIs, she estimated having only experienced approximately six UTIs during her military career (which spanned fewer than five years) at her April 2007 VA examination. Additionally, as noted above, the service treatment records do show that the Veteran was treated for UTIs in service, but the records support the conclusion that the Veteran was treated closer to six times than she was to more than a dozen treatments. Given the internal inconsistency of her statements, and the fact that service treatment records depict closer to six treatments in service for UTIs, the Board concludes that the Veteran's testimony is not credible to establish that she was treated more than a dozen times for UTIs in service. Service connection may also be established by showing continuity of symptomatology, which may be established if (1) the condition was "noted" during service; (2) there is evidence of post-service continuity of the same symptomatology; and (3) there is medical, or in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). Here, the Veteran appears to believe that she developed a chronic urinary tract disability in service that has continued to the present day. However, there is no medical nexus diagnosing a chronic urinary disability; and, while the Veteran is competent to report symptoms that she perceives, she lacks the medical training and expertise to provide a complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's testimony is insufficient to establish that she has a chronic urinary disability. The Board did obtain an expert medical opinion to address whether the Veteran had a chronic urinary disability as a result of her time in service. However, after reviewing the Veteran's claims file, the two doctors who authored the medical opinion found that the evidence simply did not relate a chronic urinary disability to the Veteran's time in service. This evidence is found to be extremely probative, given the doctors' medical training, and the fact that the opinions were grounded in the evidence of record and had a sound scientific basis. Additionally, the expert medical opinions are uncontradicted and are supported by the findings of the two VA examiners in this case. As such, these opinions are afforded greater weight than is the Veteran's assertion that she has chronic UTIs as a result of military service, which lacks any medical or scientific basis for its conclusion. The Board is sympathetic to the Veteran's situation and understands why she would believe that her current UTIs might be related to military service, in that she had UTIs in service and she has them now. However, the medical evidence that has been obtained has explained in no uncertain terms that the UTIs the Veteran experienced in service were not part of a chronic disability, but rather were acute and resolved with treatment. As such, the UTIs she experienced post-service were not related to, or the result of, the UTIs she had in service. In reaching this conclusion, the Board is aware of the Veteran's service in the Persian Gulf region, and has considered whether 38 C.F.R. § 3.317, which governs undiagnosed illnesses and medically unexplained chronic multisymptom illness, is applicable. Here, however, the Veteran has never presented with undiagnosed or medically unexplained illnesses. Rather, she has had a series of acute episodes of UTIs (per the medical opinions of record) and kidney stones. These are medically known illnesses (that is, diagnoses) which were treated and which resolved. As such, 38 C.F.R. § 3.317 is not for application. Accordingly, the Veteran's claim of entitlement to service connection for chronic UTIs is denied. The evidence is not so evenly balanced as to raise a reasonable doubt. 38 C.F.R. § 3.102. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in February 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Moreover, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of her claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as the Veteran's have service treatment records. Additionally, the Veteran testified at a hearing before the Board, and she was provided with several VA examinations (the reports of which have been associated with the claims file). The Board also obtained a medical opinion of record to address the Veteran's claim. Thus, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for urinary tract infections is denied. ____________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs