Citation Nr: 1327728 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-03 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a genitourinary disorder (claimed as residuals of a bladder injury). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1988 to February 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2013, the Board requested a medical expert opinion through the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901(a). The opinion, received in July 2013, was returned for a clarifying opinion, which was received in August 2013. FINDINGS OF FACT 1. There is competent and credible evidence to show that the Veteran's urethral stricture had onset during a period of service. 2. Chronic epididymitis is not shown by clear and unmistakable evidence to have pre-existed the Veteran's service. 3. The Veteran's chronic epididymitis has been related by competent and credible evidence to his period of service. CONCLUSIONS OF LAW 1. Service connection for a genitourinary disorder, urethral stricture, is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for a genitourinary disorder, chronic epididymitis, is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. As the decision regarding the claim of service connection for a genitourinary disorder is favorable to the Veteran, no further action is required to comply with the VCAA. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under section 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). In determining whether a condition preexisted service, the veteran's medical history, accepted medical principles, evidence regarding the basic character, origin and development of the condition, and lay and medical evidence concerning the inception, development and manifestations of the condition must be considered. 38 C.F.R. § 3.304(b); see Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran does not argue, and the record does not show, that the claimed disorder was the result of participation in combat with the enemy. Thus, the provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that service connection is warranted for a genitourinary disorder on the basis that his current disorder had onset during service. He has referred to a "bladder injury" incurred during a cytoscopy at Nuremburg Army Hospital in Germany in 1989. The Veteran served on active duty from September 1988 to February 1991. Service treatment records show that at the time of a May 1988 service entrance examination, he provided a past medical history that included venereal disease, gall bladder/gallstones, kidney stones, and blood in urine. There were no abnormalities noted on the physical examination. Further, in July 1989 he was seen for presumed epididymitis and later hospitalized for increasing scrotum pain. It was noted that he had had an over 10 year history of acute, intermittent bilateral scrotal pain. An IVP and cystoscopy were normal; a scrotal ultrasound showed a small cystic structure that was believed to be benign. Two days after the cystoscopy, he complained of suprapubic pain and dysuria; an examination showed microhematuria. On hospital discharge, the diagnoses were orchialgia of unknown etiology and urethritis. Later service treatment records are silent for genitourinary complaints. They show that in December 1990 the Veteran was involved in a motor vehicle accident, with no genitourinary complaints noted at the time. The record does not include a service separation examination report. After service, treatment records show that in May 1995 the Veteran was treated at Brackenridge Hospital for acute episodes of urethral stricture; he reported that he had sustained a straddle injury during service. In December 1999, he presented at St. David's Austin Medical Center with complaints of testicular pain; epididymitis was diagnosed. In November 2008, he sought to establish medical care with the VA healthcare system and provided a past medical history that included a testicular injury leading to cystostomy and urethral reconstruction. In April 2011, the Veteran was again seen for an acute episode of epididymitis. On October 2011 VA examination, the diagnosis was "urethral stricture s/p cystoscopy x 3." The examiner indicated that he could not provide an opinion regarding a nexus between the Veteran's genitourinary disability and his service and problems therein without resort to mere speculation because the available private treatment records were incomplete. The Board thereafter acknowledged that additional treatment records were unavailable, and then sought a VHA opinion to address the unresolved questions presented in this case. The Board requested the consulting expert to opine as to the most likely etiology for the Veteran's genitourinary disability(ies) (claimed as a bladder injury), specifically whether it was at least as likely as not that such disability was related to the Veteran's service and complaints treated therein. Further, the expert was asked whether there was any clinical evidence in the record that contradicted, or rendered implausible, the Veteran's account that the onset of his urethral stricture/neurogenic bladder disability occurred during his military service and that it had persisted ever since. After reviewing the claims file, a VHA physician furnished an opinion, received in July 2013, that was clearly favorable to the Veteran with regard to the disability of a urethral stricture. While he was unable to find any documentation of a bladder injury claimed by the Veteran, he stated that there was documentation that the Veteran developed a urethral stricture as a result of a cystoscopy performed in service in July 1989. In his explanation of rationale, he discussed in general terms the likely causes of a urethral stricture, and then cited to specific medical procedures and treatment the Veteran received during and after service. He also found the Veteran's scrotal pain was most likely due to chronic epididymitis. The Board thereafter requested the VHA physician to clarify his opinion with regard to the Veteran's disability arising from scrotal pain. The physician had earlier found that chronic epididymitis was a current disability found to be related to service, but he had cited to the Veteran's report during service that he had experienced symptoms of this disability prior to service. The physician had also noted that he found no documentation of any event during service that likely caused the epididymitis. Thus, the record contains evidence, acknowledged by the VHA physician, showing that the current epididymitis pre-existed service. It is noted, however, that there were no genitourinary abnormalities noted on the Veteran's service entrance examination. Hence, the presumption of soundness attaches in this case. 38 U.S.C.A. § 1111. The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's genitourinary disorder, chronic epididymitis, was both pre-existing and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir. 2004). Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, that is, the evidence is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). The Board next sought an addendum medical opinion from the VHA physician in July 2013 to address whether the evidence of pre-existing epididymitis was clear and unmistakable and if so whether the evidence clearly and unmistakably showed no aggravation of the Veteran's epididymitis during service. The VHA physician responded in August 2013 with an addendum opinion that indicated his feeling that the Veteran's epididymitis began prior to his military service based on the in-service notation in July 1989 that the Veteran had a 10 year history of intermittent bilateral scrotal pain. He declined to opine on whether such a clinical notation would constitute clear and unmistakable evidence that the disability existed prior to service (he said he was "not qualified" to make such a legal determination). He further concluded that he could find no documentation of any event during service that would likely cause or worsen the Veteran's epididymitis. The Board will first address the evidence as to whether there is clear and unmistakable evidence that a genitourinary disorder, chronic epididymitis, pre-existed service. The evidence of a pre-existing disorder consists only of the in-service notation in July 1989 regarding a 10 year history of intermittent bilateral scrotal pain and the VHA physician's referral to that notation. At the time he entered service, the Veteran did not report scrotal pain on the entrance examination, and in connection with this appeal he appears to maintain that his genitourinary disorder had onset during service. With respect to the lay statements provided by the Veteran, it has been held that lay statements concerning a pre-existing condition, alone, are insufficient to rebut the presumption of soundness. See, e.g., Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a layperson's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238, 246 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition). There are no medical records in the file dated before the Veteran's period of service to document either that the Veteran had a history of scrotal pain or that he was diagnosed and treated for epididymitis. Moreover, the VHA physician's medical opinion addressing the existence of a genitourinary disorder prior to service is inconclusive. He felt that epididymitis pre-existed service on the basis of the in-service report of a history of intermittent scrotal pain, although he did not comment on the history provided by the Veteran at the time of the service entrance examination, which was silent for complaints of scrotal pain. He was loath to characterize the evidence of a pre-existing disorder as "clear and unmistakable." In short, the Board concludes that the evidence does not clearly and unmistakably demonstrate that a genitourinary disorder, chronic epididymitis, pre-existed the Veteran's service. As pre-existence is not shown by clear and unmistakable evidence, the presumption of soundness on service entry is not rebutted. Therefore, the next essential question to address is whether the evidence shows that a genitourinary disorder was due to injury or disease that was incurred in service. This theory of entitlement is one of direct service connection. As previously noted, the VHA physician opined, with rationale, that a genitourinary disorder, specifically a urethral stricture, had onset during service related to a cystoscopy in 1989. There is no medical evidence to the contrary. Moreover, the VHA physician found that the Veteran also currently had chronic epididymitis, which was related to the scrotal pain symptoms for which he was hospitalized during service. There is no medical evidence to the contrary. On the basis of the foregoing, the Board finds that the comprehensive review and discussion by the VHA physician is particularly probative and entitled to great weight. In conjunction with the Veteran's own assertions of his genitourinary conditions beginning in service and continuing ever since, there is competent and credible evidence to support the claim that the Veteran's current genitourinary disorder, namely, urethral stricture and chronic epididymitis, is etiologically related to his period of service, and service connection is warranted. ORDER Service connection for a genitourinary disorder, urethral stricture, is granted. Service connection for a genitourinary disorder, chronic epididymitis, is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs