Citation Nr: 0809663 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 04-43 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for chronic urinary tract infections. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran served on active duty from November 1973 to November 1976. She had active duty training from September 1981 to December 1981 and from April 1986 to October 1986. Thereafter, she served on active duty from February 1988 to December 2002. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an August 2003 rating decision by the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied the veteran's claim of entitlement to service connection for elevation of bacterial counts on urinalysis. In a June 2004 rating decision, the RO confirmed and continued the previous denial of service connection for chronic elevation of bacterial counts on urinalysis/urinary tract infection. In August 2006, the Board remanded the claim for further development and readjudication. After completing the requested actions, the RO continued the denial of service connection for urinary tract infections (as reflected in the October 2007 supplemental SOC (SSOC)), and returned the case to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Current urological symptomatology is not shown to be related to events incurred during active service. CONCLUSION OF LAW Chronic urinary tract infections were not incurred in or aggravated by service nor as a result of any established event, injury, or disease during active service. 38 U.S.C.A. §§ 1110, 1112, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the veteran's claim for service connection for urinary tract infections was received in December 2002. She was notified of the provisions of the VCAA by the RO in correspondence dated April and September 2003. These letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing her claim, identified the veteran's duties in obtaining information and evidence to substantiate her claim, and requested that the veteran send in any medical evidence in her possession that would support her claim. Thereafter, the claim was reviewed and a supplemental statement of the case was issued in October 2007. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Mayfield v. Nicholson (Mayfield III), 07-7130 (Fed. Cir. September 17, 2007). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in August 2006. The veteran has been made aware of the information and evidence necessary to substantiate her claim and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist her in obtaining evidence necessary to substantiate her claim during the course of this appeal. Her service treatment records, private treatment records, and all relevant VA treatment records pertaining to her claimed disability have been obtained and associated with her claims file. She has also been provided with VA medical examination to address the etiology of her claimed urinary disability. Furthermore, she has not identified any additional, relevant evidence that has not otherwise been requested or obtained. The veteran has been notified of the evidence and information necessary to substantiate her claim, and she has been notified of VA's efforts to assist her. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating her claim. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). With chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the 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." 38 C.F.R. § 3.303(b) (2007). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The veteran contends she is entitled to service connection for urinary tract infections that were incurred during her periods of active military service. Service treatment records contain the results of a number of urinalyses conducted throughout service. These reports, viewed as a whole, indicate that the veteran had recurrent episodes in which detectable levels of blood, bacteria and white blood cells were found in her urine at various times throughout service. As a result, she was diagnosed as having a medical history of microscopic hematuria. The veteran's October 1973 service enlistment examination shows that her genitourinary system was marked as normal. A January 1995 urinalysis (UA) report reflected findings of few bacteria and trace occult blood. A March 1996 UA report indicated that blood, squamous epithelial cells, and trace bacteria were found in the veteran's urine. A January 2002 MRI report noted a finding of suspicion for right nephrolithiasis. A March 2002 screening form from the National Kidney Foundation noted that urine screening findings reflected trace amounts of protein and blood. In April 2002, the veteran complained of right-sided pain and was treated for a possible right kidney stone. UA reports dated in April and May 2002 indicated that blood, epithelial squamous cells, and bacteria were again detected in the veteran's urine. A May 2002 CT scan revealed that the veteran's kidneys were within normal limits. In June 2002, the veteran continued to complain of persistent hematuria and was referred for a urology consultation. A July 2002 urology treatment note revealed an assessment of microscopic hematuria and noted complaints of infrequent urinary incontinence. There was no history of urinary tract infections, gross hematuria, or kidney stones. The assessment was microscopic hematuria. A September 2002 service urologic examination report listed an impression of squamous metaplasia. A September 25, 2002 UA report noted that white blood cells, bacteria, and squamous cells were found in the veteran's urine. In a September 2002 report of medical assessment, the veteran complained of frequent urination. A December 2002 VA renal ultrasound report listed a clinical history of microscopic hemativira as well as reflected unremarkable findings for the left and right kidney. However, it was further noted that the veteran's bladder could not be assessed because it was void of urine but that no pelvic free fluid was seen. The claims file also contains multiple VA UA reports dated in November 2002, March 2003, April 2004, and May 2004. In a March 2003 VA treatment note, it was noted that the March 2003 UA was positive with some squamous cells. In a June 2003 VA general medical examination, the examiner listed a diagnosis of squamous metaplasia but noted that a March 2003 UA and urine culture was negative with no blood. In an April 2004 VA genitourinary examination report and addendum, the veteran complained of frequent urination with irritation, dysuria, burning, and having to go to the bathroom an excessive amount of time. The examiner indicated that in between urinary tract infections the veteran is asymptomatic. Physical examination findings showed that the veteran was asymptomatic at that time. The examiner listed an impression of urinary tract infection in the past with last suggested episode in March 2003 when there were urine was positive for white and red cells. It was further noted that a repeat UA was entirely clear. An October 2004 VA treatment record noted complaints of occasional urge incontinence and a past history of urinary tract infections. In a January 2005 VA treatment note, the veteran complained of continuing to have frequency of urination. The examiner acknowledged that the veteran's genitourinary symptoms were chronic but did not address any possible connection between the symptoms the veteran currently reported and her periods of active duty. The examiner referred the veteran for a urology examination but subsequent records indicate that the examination was canceled unilaterally by VA. A medical history of microscopic hematuria was listed in a February 2005 VA treatment record. A March 2007 VA treatment note revealed no findings of cystocele or rectocele. In a June 2007 VA genitourinary examination report, the veteran complained of right flank and right lower quadrant pain that had lasted for over 6 months and that was severe and persistent. It was further noted that the veteran complained of urinary frequency and urgency without urge incontinence and also had no history of kidney stones. Physical examination findings were noted as tender bladder on bimanual pelvic examination mostly on the right side with no significant cystocele or rectocele. Urodynamic test findings revealed a diagnosis of small capacity and hyperreflic bladder. A May 2007 transvaginal ultrasound report revealed bilateral ovarian follicles. In his June 2007 VA examination report, the VA urologist noted that he had prescribed medication for urinary urgency. After reviewing the veteran's claim files, the examiner opined that the veteran's current urological complaints and findings were unrelated to her previous complaints during military service. In this case, the veteran's service treatment records do show laboratory findings consistent with microscopic hematuria, abnormal UA findings, and squamous metaplasia on several occasions during service. However, any history of an identifiable disorder, such as a urinary tract infection was denied by the veteran during service in July 2002. Post- service VA treatment records reflect complaints and findings of current urological symptomatology. However, there is no competent evidence of a nexus or medical relationship between the current urological symptomatology and service. Rather, in the only opinion to address the etiology of any current urinary disability, a VA urologist opined that the veteran's current urological complaints and findings were unrelated to her previous complaints during military service in his June 2007 VA examination report. Further, the record only establishes that during service, UA, on occasions, exhibited manifestations that were not within normal limits, but no definitive diagnosis accompanied these findings. As such, the medical opinion evidence tends to weigh against the claim, and neither the veteran nor her representative has presented, identified, or even alluded to the existence of any contrary medical evidence or opinion that would, in fact, support the claim. The Board also has considered the assertions the veteran has advanced on appeal in written statements and during her VA examination reports. However, the veteran cannot establish a service connection claim on the basis of her assertions, alone. While the Board does not doubt the sincerity of the veteran's belief that she has a current chronic urinary disability that is associated with military service, this claim turns on a medical matter-the relationship between a current disability and service. Questions of medical diagnosis and causation are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layperson without the appropriate medical training or expertise, the veteran simply is not competent to render a probative (i.e., persuasive) opinion on such a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Consequently, the veteran's assertions regarding diagnosis and/or etiology of a current urinary disability simply do not constitute persuasive evidence in support of the claim. For the foregoing reasons, the claim for service connection for chronic urinary tract infections must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Entitlement to service connection for chronic urinary tract infections is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs