Citation Nr: 1324652 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 07-09 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a chronic urinary disorder, to include urinary tract infection (UTI). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active service from January 1993 to January 1996, and from February 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2009 and service connection for tinnitus was granted. The Board remanded for further evidentiary development the issues of entitlement to service connection for defective hearing, residuals of hepatitis A and a chronic urinary disorder, as well as increased rating claims for dyspepsia and plantar fasciitis of the left foot with calcaneal spur. In July 2011, the Board denied the Veteran's service connection claims for defective hearing and residuals of hepatitis A; denied an increased rating claim for dyspepsia; and awarded an increased 10 percent rating for plantar fasciitis of the left foot with calcaneal spur from April 14, 2011, forward. The Board remanded the issue of service connection for a chronic urinary disorder. In December 2012, the Board referred the claim to a Veterans Health Administration (VHA) physician for a further opinion, which was received in February 2013. FINDING OF FACT The probative medical evidence indicates that the Veteran did not have chronic or recurrent urinary symptoms during service and is not currently diagnosed with a chronic or recurrent urinary disorder. CONCLUSION OF LAW The criteria for the establishment of service connection for a chronic urinary disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: 1) Veteran status, 2) existence of a disability, 3) relationship between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if notice was not provided prior to initially adjudicating the claim or, if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran was provided a pre-adjudicatory notice letter in December 2004. Additional notice letters were sent to him in May 2009 and July 2011. These letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. In the May 2009 letter, he was also advised as to how disability ratings and effective dates are assigned. See Dingess, supra. And after all notice was provided to him, his claim was then readjudicated by way of an SSOC issued in May 2011. He has therefore received all required notice concerning his claim, and it has been reconsidered since providing all required notice. VA's duty to assist includes assisting him in obtaining his service treatment records (STRs) and pertinent post-service treatment records (VA) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's STRs, VA medical evidence, private medical evidence, and the Veteran's contentions. VA afforded the Veteran pertinent VA examinations and as mentioned, obtained a VHA medical expert opinion. The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VA's duties to notify and assist him with this claim have been satisfied. Service Connection Claim Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Certain chronic disabilities are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The disability for which the Veteran is seeking service connection does not fall into that category. Service connection based on continuity of symptomatology is not therefore available under 38 C.F.R. § 3.303(b). The most fundamental requirement for any claim for service connection is that the Veteran must first establish he or she has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); cf. McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board must assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit , citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). A March 2004 STR from the Veteran's second period of active duty shows that he had urinary complaints that consisted of constantly feeling as though he had to urinate. He had been experiencing the symptoms for one month and for the past 2 days, he urinated 8 to 10 times daily. A diagnosis is not reflected in the record. A second document that also appears to be dated in March 2004 makes reference to a UTI, but due to the poor quality of the copy no other pertinent medical information could be gleaned from it other than that lab tests were ordered. The Veteran essentially wanted his symptoms documented and he planned to follow up at a VA Medical Center. A post-deployment health assessment dated later that same month shows that the Veteran reported being treated for a UTI during his deployment. However, the health care provider indicated that no genito-urinary referral was indicated. An April 2004 medical examination report indicates the Veteran's urinalysis was normal, and on the associated medical history report, he provided a negative response to having had frequent or painful urination. Also at some point during his military service, he was treated for hepatitis A, which reportedly resolved. Within 6 months of separating from military service in September 2004, the Veteran filed, as relevant, this service connection claim for a chronic urinary disorder, characterized as a UTI. A post-service January 2005 private medical record indicates that the Veteran had a possible UTI with complaints of frequent urination, which had reportedly been occurring for 1 year. His symptoms reportedly waxed and waned. He had a urinalysis test and the diagnosis was probable overactive bladder. The following month, he reported that his urinary urge had improved, but still problematic at times. The diagnosis was irritable bladder. A March 2005 urinalysis test showed a trace of ketones. A September 2006 private treatment record shows a diagnosis of a UTI. In October 2007, the Veteran again complained of having a UTI and the assessment was "question prostatitis question interval bladder..." One month later, the Veteran reported that his urinary complaints had improved without taking any medication. In November 2008, the Veteran did not report any urinary problems, and his prostate was reportedly not an issue. There was a trace of protein and occult blood in his urine. An October 2009 urinalysis test revealed that the Veteran had cloudy urine. The Veteran underwent a VA compensation examination in March 2011. The examiner found that it less likely than not that the Veteran's history of urinary tract infections was the consequence of a chronic medical disorder acquired in the military or had sequelae that was currently causing him symptoms. The examiner stated that UTIs are acute events that are generally cured with treatment or resolve spontaneously and that this is primarily the case here. The examiner stated, however, that UTIs are also often due to an underlying urinary tract disorder. He noted that the Veteran was not diagnosed with an underlying condition while in the military and had no history of long-term sequelae from the infections he did have. The examiner indicated that the tentative post-service diagnosis of an overactive bladder based on lower urinary tract symptoms is not enough to explain why he had a UTI. There was a lack of a diagnosed chronic, underlying condition acquired in the military likely to cause UTIs. The examiner noted that the in-service symptoms were more likely the consequence of events such as recurrent situational circumstances (not being able to urinate on a normal schedule, dehydration, other stresses, etc.), given the lack of a specific known cause of UTIs in this case and the uncommon occurrence of UTIs in young men. The examiner stated that if the Veteran continued to have UTIs, he would need further work up but noted that there is not enough information to establish service connection. In September 2011, the Veteran underwent an additional VA compensation examination. The examiner stated that there is no evidence of any current and active UTI, noting that any prior UTI had since resolved. It was also noted that the Veteran's urinalysis and lab work results in conjunction with the examination were normal. Concerning the Veteran's in-service diagnosis of hepatitis A to which he attributed his urinary symptoms, the examiner indicated that the liver condition had resolved, as evidenced by normal liver enzymes. The examiner concluded that there is no evidence of any chronic UTIs or other objective documentation of any chronic, residual and disabling urinary condition. Per the available medial evidence, the examiner noted that the Veteran had not sought medical evaluation or treatment for any urinary symptoms in four years and there was no evidence that he sought a recent evaluation by a urologist. However, the 2011 VA examination reports were not sufficiently responsive to the Board's directives and are therefore inadequate for analysis purposes. Both VA examiners essentially opined that there was no nexus between the Veteran's urinary problems and service, and indicated that there was no evidence of a chronic problem. However, the reports were nonresponsive in that there was no discussion of the March 2004 STR that documents urinary symptoms that went undiagnosed. Also, in noting the post-service evidence, both examiners failed to address an abnormal October 2009 urinalysis test and did not discuss the significance or lack thereof of the finding with regard to the claimed urinary disorder. In addition to the omissions of pertinent evidence, the 2011 examiners did not discuss the Veteran's lay assertions. Throughout the appeal, the Veteran consistently reported that his symptoms waxed and waned and during the September 2011 examination he indicated that they occurred 5 to 6 times a year. Moreover, the September 2011 examiner did not demonstrate a thorough and independent review of the record in that he printed excerpts from the prior examination, which was lacking in completeness. Finally, the September 2011 examiner mischaracterized the Veteran's contentions by stating the Veteran felt he had "chronic, unresolved sx's." For these reasons, in December 2012 the Veteran's claim was referred to a VHA medical expert for further an additional opinion and further clarification. The Board requested that the medical expert comment on the dispositive issue in this case which is whether Veteran has at some point since April 2004 had a chronic and/or recurrent urinary disorder that was caused in, or aggravated by, his military service. In February 2013, a physician who is the Director of Neuro-Urology, Voiding Dysfunction & Urodynamics at a VA hospital, and Associate Professor of Urology at a private university, provided this medical expert opinion. After having had the opportunity to review the entire record, he concluded that there is no evidence showing that the Veteran has ever had a chronic or recurrent urinary disorder. The 2013 medical expert addressed the abnormal urinalysis results of record and found them of no significance. He indicated that the March 2005 urinalysis, which showed a trace of ketones, likely represented fasting by the Veteran. He also indicated that the abnormal urinalysis in November 2008, when condylmota was diagnosed, may have been an isolated event of urethritis because he was tested for chlamydia and gonorrhea at the same time, or possibly related to the presence of the condylmota. No treatment was provided for urethritis or a UTI at that time. As to the 2009 urinalysis, the expert stated that a finding of cloudy urine can be a by-product of diet, recent sexual intercourse and several other causes, but in the Veteran's case, it may have been due to manipulation arising from the treatment or presence of condylomata accuminatum which was diagnosed in November 2008 and treated in October 2009. Therefore, these urinalyses, although considered abnormal for different reasons, were not consistent with a UTI or a chronic urinary disorder. In fact, the 2013 medical expert stated that none of the Veteran's urinalyses of record are consistent with UTIs, noting that there are no urine cultures and no evidence of antibiotics having been prescribed for UTIs except in October 2007 when the Veteran was diagnosed with questionable prostatitis (and the Veteran did not actually take the prescribed medicine and his urinary symptoms resolved). As further mentioned, the Veteran had many interval urinalyses that were entirely normal. The 2013 medical expert essentially stated that the in-service urinary complaints appeared to be isolated events. He noted that the Veteran's urinalysis and creatine tests (a measure of renal function) were normal at the time. No urine cultures were noted, obtained, or reported, and no antibiotics or other medication were prescribed. Also, there is no documentation of any follow-up visits in the Veteran's STRs. He also observed that, with the exception of the urinary complaints already noted in the record, those complaints (and/or a chronic disorder) are not reported on other evaluations such as those provided by the Veteran's primary physician, podiatry, or psychiatric evaluations. He also explained that urinary frequency is often idiopathic, or may be related to neurological disorders such as spinal cord injury, or multiple sclerosis (MS), neither of which the Veteran has. The 2013 medical expert concluded that the findings and complaints in this case are not manifestations of a chronic or recurrent urinary disorder. He stated that a chronic urinary disorder has variable presentation in terms of the frequency, or urgency of urination, and may also be associated with severe urgency or urge incontinence. However when it is present, it often interferes significantly with a patient's quality of life and symptomatic patients tend to be persistent in obtaining treatment, and as noted by the expert, this is not the case here. In summary, the expert determined that, based on the limited number of poorly-defined urinary frequency complaints shown in the Veteran's medical record, it is not likely that he has a chronic or recurrent urinary disorder. The February 2013 VHA medical expert opinion is factually accurate and fully articulated; it also contains sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Given the inadequate March and September 2011 VA examination reports, the February 2013 medical expert opinion is the only probative medical opinion of record that addresses the dispositive issue in this case. The probative medical evidence of record demonstrates that the Veteran's urinary and UTI complaints and diagnoses shown in the medical records are isolated events, as opposed to indications of a chronic or recurrent urinary disorder. Consequently, there is no probative medical evidence of a chronic or recurrent urinary disorder since the filing of his claim, as well as during his military service for that matter. The Veteran, as a lay person, is competent to comment on symptoms he may have personally experienced such as urinary frequency and/or urgency. However, the Veteran's attribution of these symptoms to particular medical diagnosis such as a chronic urinary disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Because the evidence does not indicate that the Veteran has the appropriate medical training, experience, or expertise, he is not competent to render a diagnosis of a chronic urinary disorder. Accordingly, the competent medical evidence outweighs his unsubstantiated lay reports regarding medical diagnosis and etiology. In light of the discussion above, especially to include the highly probative February 2013 VHA medical expert opinion, the Veteran's service connection claim must be denied, as he has failed to establish the most essential requirement for service connection - that he has a disability to account for his urinary complaints. Despite his urinary complaints and 2006 UTI, it is not shown that he has had a chronic or recurrent urinary disorder - either presently or at any time since April 2004. Because the Veteran does not have a current disability, service connection cannot be granted as a matter of law. 38 U.S.C.A. § 1110; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (generally observing that in the absence of proof of a current disability, there can be no valid claim). The claim will therefore be denied. ORDER Service connection for a chronic urinary disorder is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs