Citation Nr: 1327000 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 12-09 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for lower urinary tract symptoms (LUTS), claimed as urethritis. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from July 1953 to June 1957. This matter comes before the Board of Veterans'' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that denied entitlement to service connection for lower urinary tract symptoms, claimed as urethritis. In January 2013, the Board remanded this matter for additional development. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A urinary tract disorder, to include LUTS, recurrent urinary tract infections, or urethritis, has not been shown to have had its onset in service, within one year of service, nor is such disability otherwise a result of active military service. CONCLUSION OF LAW A urinary tract disorder, to include LUTS, recurrent urinary tract infections, and urethritis, was not incurred in or aggravated by the Veteran's active military service, nor is such disability presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter dated in March 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Board remand included instructions to (i) obtain VA hospitalization records dated in September 2006, (ii) attempting to obtain any remaining outstanding records of relevant treatment by Dr. Haley and any other private treatment provider, and (iii) obtain an addendum VA opinion. Letters dated in February and March 2013 requested the Veteran's assistance in obtaining his private and VA treatment records. Subsequently, these records were obtained and associated with the Veteran's claims file. The examiner who had provided the prior VA examination provided an addendum in June 2013 that complied with the January 2013 remand request. There is no further notice or assistance that would be reasonably likely to assist the Veteran in substantiating the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). The Veteran had a January 2012 hearing before a Decision Review Officer at the RO. At the hearing, the DRO identified the elements of the claim that had not been substantiated and suggested evidence that could substantiate those elements. II. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). Lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service treatment records indicate that in December 1954, the Veteran was seen aboard the U.S.S. Walker with complaints of abdominal. On further evaluation at a Navy Dispensary, the pain was noted to be in the area of the umbilicus. The impression was irritable colon. In August 1956 he was seen aboard the U.S.S. Franklin D. Roosevelt for a sore on his penis. The treatment notes indicated no ulceration, maceration, last sexual exposure 4 weeks prior, and a note that stated that the treatment provider did not believe that lesion was "anything significant." There was no mention of or treatment for urinary tract infections or urethritis. The Veteran's separation examination was normal. The Veteran is status post left nephrectomy. The Veteran underwent VA hospitalization in September 2006 after reporting a two to three day history of urinary symptoms and fever. It was noted that he had experienced four or five urinary tract infections (UTIs) in the past 20 years. The discharge diagnosis was UTI. Records from Dr. Haley show treatment from July 1997, when he was evaluated for a possible obstruction of the right kidney, to June 2007, when a history of recurrent UTIs was noted. The Veteran's claim for service connection was received in March 2011. In his claim he reported that he had urethritis that had begun in January 1957 aboard the U.S.S. Walker. VA treatment records dated from 2005 to 20011 show treatment for UTIs, hyperplasia of the prostate, and unrelated conditions. In order to determine whether the Veteran had a urinary tract disability related to military service, the Veteran was afforded a VA examination in October 2011. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran was diagnosed with LUTS. The date of the diagnosis was uncertain but was indicated to be first documented by VA in 2006. The Veteran's service treatment for sore penis was noted as well as his post military history of urinary tract infections and GU infections. After examination, the examiner found that the claimed condition was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was no mention in the medical records of the urethritis to which the Veteran claims etiologic relationship to present complaints. The examiner also noted that there was no mention of burning, stinging, or usual symptoms of urethritis in the two navy entries. Rather maceration was identified. The examiner indicated that urethritis appeared to have come on later. At the DRO hearing in January 2012, the Veteran testified that during service he was seen by a corpsman after experiencing a discharge from his penis. The corpsman told him that he had urethritis due to straining from lifting things. He said that after service he received treatment from doctors, who he believed were dead. He was to provide releases for additional treatment records after the hearing; but appears to have provided releases only for the records of treatment by Dr. Healey. The VA examiner provided an addendum opinion in June 2013. The examiner indicated that the Veteran's claims file and virtual VA file had been reviewed in connection with the report. Additional significant medical entries were also noted in the report. After reviewing the additional material, the examiner stated that the Veteran had been treated for urinary tract infection which was, by its very nature, an internal infection. A maceration or sore on the penis was external and would not normally be anticipated to have any effect on the internal structures of the genitourinary tract. The examiner concluded by finding that, based on a review of all hospitalizations at VA and in particular clinic visits since 2011, there was no evidence to support the contention that the Veteran's sore or maceration of the penis (documented in the service treatment records) was etiologically related to his more recent urinary tract infections. Therefore, it was not as likely as not that the recent history of urinary tract infections was related to his sore/maceration of the penis in service. Analysis The record shows a current disability, as documented on the VA examination and treatment records. The service treatment record documents treatment for a sore on the penis. The appeal turns on whether a link can be established between the in-service event and the current disability. The VA examiner provided negative opinions in October 2011 and June 2013. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The VA examiner noted an accurate history and provided an unequivocal opinion. The examiner did not consider the Veteran's testimony that he had been told he had urethritis in service. While the Veteran would be competent to testify to being told of this diagnosis; Jandreau; his recollections are not deemed credible. The Veteran reported in his claim that this treatment took place on the Walker, while the service treatment record shows that it occurred on the Roosevelt. He reported that the treatment took place in January 1957, but the service treatment record shows it took place in December 1954. His testimony did not report the sore that was documented in the service treatment records. It also does not seem credible that the corpsman would have told the Veteran of his diagnosis but not put it in the treatment record. It is understandable that the Veteran would have difficulty recalling the details of events that occurred nearly 60 years ago; but these difficulties render his testimony as to the reported diagnosis of urethritis incredible. The examiner otherwise provided reasons for the opinions that were based on the record. The examiner's opinions are; therefore, of significant probative value. There is no other medical opinion linking the Veteran's current disabilities to service. The Veteran has not clearly reported a continuity of symptoms since service, but because his claimed disabilities are not listed as chronic diseases, a continuity of symptomatology would not be sufficient to establish service connection. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). In addition, the Veteran has contended that his claimed disability is related to the findings in service. Although lay persons are competent to provide a diagnosis of a simple or observable conditions such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). It would require medical expertise to say that the Veteran's currently diagnosed genitourinary conditions are the same as, or related to, the symptoms reported in service. As such, these are medical question, beyond the competency of a layperson. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); 38 C.F.R. § 3.159(a). The competent and credible evidence is against a link between the current urinary tract disabilities and service. Because the preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a urinary tract disorder, to include LUTS, recurrent urinary tract infections, or urethritis, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs