Citation Nr: 18148903 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 08-12 849 DATE: November 8, 2018 ORDER Entitlement to service connection for a urethral disorder, diagnosed as penile meatal (urethral) narrowing secondary to the service-connected scar on the tip of the penis productive of an altered urinary stream (occasional spraying stream/stream diverts to the left), is granted. REMANDED Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected staphylococcus infection and/or prostatitis, is remanded. Entitlement to service connection for a lumbosacral spine disorder, to include as secondary to a gastrointestinal disorder and service-connected staphylococcus infection and/or prostatitis, is remanded. (The issues of entitlement to vocational rehabilitation and education services and entitlement to an initial compensable evaluation for staphylococcus infection are the subject of a separate decision.) FINDING OF FACT The Veteran has been shown to have penile meatal (urethral) narrowing productive of an altered urinary stream (occasional spraying stream/stream diverts to the left) that is related to his service-connected scar on the tip of the penis. CONCLUSION OF LAW A urethral disorder, diagnosed as penile meatal (urethral) narrowing secondary to the service-connected scar on the tip of the penis productive of an altered urinary stream (occasional spraying stream/stream diverts to the left), is proximately due to or the result of the service-connected scar on the tip of the penis. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to January 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from December 1997, May 2002, and June 2009 rating decisions of the Department of Veterans Affairs (VA). In March 2011, the Veteran testified at a Board hearing before Veterans Law Judge Hachey. A transcript of the hearing is of record. In an August 2012 decision, the Board granted service connection for staphylococcus infection and prostate stones, remanded the above urethral, lumbosacral spine, and gastrointestinal disorder service connection claims and an increased evaluation claim for prostatitis for further development, and dismissed other claims that had been on appeal. In June 2015, the Veteran testified at a second Board hearing before Veterans Law Judge Clementi as to the above service connection claims. The Veteran, through his representative, requested withdrawal of the appeal as to the increased evaluation claim for prostatitis, as noted on the record during that hearing. A transcript of the hearing is of record. The Veterans Law Judge held the record open for a 30-day period following the hearing to allow for the submission of additional evidence. Thereafter, the Veteran submitted additional evidence, along with a waiver of initial agency of original jurisdiction (AOJ) consideration. In a July 2016 decision, the Board dismissed the appeal as to the increased evaluation claim for prostatitis and remanded the remaining portion of the appeal to schedule the Veteran for his requested Board hearing with a third Veterans Law Judge, in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2012). The detailed procedural history of the appeal until that time is provided in the August 2012 and July 2016 decisions. In April 2017, the Veteran testified at a third Board hearing before Veterans Law Judge Zissimos as to the above service connection claims, as well as the issues that are the subject of the separate decision. A transcript of the hearing is of record. The Veterans Law Judge held the record open for a 60-day period following the hearing to allow for the submission of additional evidence; however, the Veteran did not submit any additional evidence during that time. The Veteran did later submit additional evidence, and he waived initial AOJ consideration of evidence received after the December 2014 supplemental statement of the case. See August 2018 Board waiver request letter and written response. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is warranted for penile meatal (urethral) narrowing as secondary to the service-connected scar on the tip of the penis productive of an altered urinary stream (occasional spraying stream/stream diverts to the left) (a urethral disorder). The Veteran has essentially contended that he has a urethral disorder that is the result of his in-service penile injury or that is related to his service-connected scar on the tip of his penis, perimeatal skin tags, staphylococcus infection, and/or prostatitis. See, e.g., June 1992, August 1992, October 1992, June 1996, March 2011, and June 2015 written statements; March 2011 Bd. Hrg. Tr. at 10; June 2015 Bd. Hrg. Tr. at 16-18; April 2017 Bd. Hrg. Tr. at 25-29. The AOJ granted service connection for a scar on the tip of the Veteran’s penis in a June 1992 rating decision. The details of his in-service injury and subsequent in-service treatment are outlined in that decision, as well as the August 2012 Board decision granting service connection for staphylococcus infection. The AOJ also granted service connection for perimeatal skin tags that had been surgically removed as secondary to that scar in a December 1997 rating decision. An April 1991 VA treatment record shows that the Veteran was noted to have a history of urethral symptoms following the in-service injury that he still reported having, along with a hand-drawn picture showing an area of right-sided urethral meatus scarring. See also July 1973 service treatment record (hospital narrative summary; noted history of pustule on tip of penis at about 10 o’clock area with admission for care of ulcers). An operative report from that same day shows that a lesion on the tip of the penis was biopsied, and the findings indicated that the perimeatal area was scarred, more prominently on the right. The May 1991 pathology report shows that there was scar tissue with no evidence of malignancy. The Veteran was afforded VA examinations in which the examiners determined that the Veteran did not have a current urethral disorder. See October 1993, March 2001, and December 2014 VA examination reports. Nevertheless, the record also shows that the Veteran has been diagnosed with penile meatal (urethral) narrowing secondary to the service-connected scar on the tip of the penis productive of an altered urinary stream (occasional spraying stream/stream diverts to the left). In this regard, the Veteran has reported that he has an altered urinary stream throughout the course of the claim. See, e.g., VA treatment records from May 23, 1997 (noted spray when urinates), September 2008 (reported occasional spraying stream), and December 2008 (noted stream variable – diverts to the left); February 2009 VA examination report (noted history of crooked stream). The October 1993 VA examiner noted that the Veteran had a difficult time directing his urinary stream because of the perimeatal scarring. The May 1997 VA treatment provider indicated that the Veteran’s distal urethra had been surgically altered, so that he did have a spray when he urinated. On physical evaluation, it was noted that the distal urethra and meatus were slightly irregular at the opening, where multiple skin tags had been removed, with a question of reformation of another. The December 2014 VA examiner noted the history of the scarring documented in the record and determined that the Veteran had a penis deformity of meatal (urethral) narrowing secondary to scarring. Based on the foregoing, the Board finds that the Veteran has penile meatal (urethral) narrowing productive of an altered urinary stream (occasional spraying stream/stream diverts to the left) that is related to the service-connected scar on the tip of the penis. Therefore, the Board concludes that service connection is warranted for this urethral disorder. REASONS FOR REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran’s remaining claims. Specifically, it appears that there may be outstanding VA treatment records, as detailed in the directives below. Regarding the gastrointestinal claim, the February 2009 VA examiner determined that the Veteran’s chronic gastrointestinal problems were likely not related to his urological problems, without further explanation or rationale. The November 2014 VA examiner determined that the Veteran’s gastrointestinal disorders (peritoneal adhesions secondary to appendicitis with peritonitis, status post appendectomy and gastroesophageal reflux disease (GERD)) did not have their onset during his military service, were not otherwise related to his military service, and were not caused or aggravated by his service-connected staphylococcus infection and/or prostatitis or treatment for those disabilities. In so finding, the examiner indicated that the Veteran’s appendicitis was caused by a fecalith documented on the pathology report and that the peritoneal adhesions were secondary to peritonitis caused by fecal bacteria (not staphylococcus). The examiner also indicated that GERD is not caused by removal and reinsertion of nasogastric tubes or by the appendectomy, peritonitis, or adhesions. Although the examiner addressed questions related to the gastrointestinal disorders, the Veteran has additional diagnoses that were not discussed. See, e.g., VA treatment records from January 2010 (upper gastrointestinal endoscopy report with impression including gastritis); August 2010 (colonoscopy report with impression including polyps; diverticulosis in sigmoid colon); April 2014 (assessment including irritable bowel syndrome (IBS)). Therefore, an additional medical opinion is needed. The examiner will also have an opportunity to provide a more detailed explanation as to the determination that there is no basis in medical fact in support of the claim and to address any medical significance of gastrointestinal symptoms documented in the service treatment records. Regarding the lumbosacral spine claim, the other November 2014 VA examiner determined that it was not at least as likely as not that the Veteran’s diagnosed lumbar spine disorder (degenerative arthritis of the lumbar spine) was related to any service activity or infection, as he had no mechanism for pain related to any such event or infection. The examiner also found that the Veteran had no back injury and that his very mild findings were consistent with someone who took care of a small farm (as noted in the reported history earlier in the examination report). Although the examiner addressed questions related to the lumbosacral spine disorder and attributed it to post-service circumstances, it is unclear if the examiner considered the complete history of the development of the disorder, inasmuch as the remainder of the record shows that the Veteran reported having low back pain beginning some time before the last five years (rather than complaints beginning in the last five years as noted in the examination report). See August 2012 remand (noted history of fairly consistent treatment for recurrent low back pain). In addition, the opinion does not clearly address the Veteran’s contentions as to a possible relationship between his back problems and his service-connected disabilities. Therefore, an additional medical opinion is needed. The case is REMANDED for the following actions: 1. The AOJ should secure any outstanding VA treatment records. See April 2017 Bd. Hrg. Tr. (Veteran testified to upcoming treatment; record contains limited treatment records since 2016). 2. After completing the foregoing development, the AOJ should refer the Veteran’s claims file to the November 2014 VA gastrointestinal examiner, or, if that examiner is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current gastrointestinal disorder that may be present. An additional examination of the Veteran should only be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. The Veteran has essentially contended that his gastrointestinal problems are related to the treatment for his service-connected staphylococcus infection and/or prostatitis. He believes that the long-term antibiotic use for his prostatitis and the staphylococcus infection itself have affected his body, including causing him to need an appendectomy in 1997, which he has indicated was the beginning of his chronic gastrointestinal problems. See, e.g., February 2002, February 2006, April 2008, August 2009, March 2011, and June 2015 written statements; March 2011 Bd. Hrg. Tr. at 8-9. The Veteran has also indicated that he believes that the use of a nasogastric tube during that procedure could have done something to his esophagus; his representative submitted multiple internet articles in this regard. See June 2015 Bd. Hrg. Tr. at 20-22; articles submitted in June 2015. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current gastrointestinal disorders. See November 2014 VA examination report (peritoneal adhesions secondary to appendicitis with peritonitis, status post appendectomy and GERD); VA treatment records from January 2010 (upper gastrointestinal endoscopy report with impression including gastritis), August 2010 (colonoscopy report with impression including polyps; diverticulosis in sigmoid colon), and April 2014 (assessment including IBS. For each diagnosis identified, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein. In providing this additional opinion, the examiner should discuss the medical significance, if any, of a December 1970 service treatment record showing a report of stomach pain and related treatment, as well as a January 1971 service treatment record showing a report of nausea without other gastrointestinal complaints (July 2015 VBMS entry, pp. 15, 51). The examiner should also state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused by or aggravated by the Veteran’s service-connected staphylococcus infection and/or prostatitis, including treatment for either disability. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the foregoing development, the AOJ should refer the Veteran’s claims file to the November 2014 VA back examiner, or, if that examiner is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current lumbosacral spine disorder that may be present. An additional examination of the Veteran should only be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. The Veteran has essentially contended that his lumbosacral spine disorder is related to his service-connected staphylococcus infection and/or prostatitis, including his long-term antibiotic use leading to bone degeneration. See, e.g., July 2000, March 2011, and June 2015 written statements; March 2011 Bd. Hrg. Tr. at 13-14. He has indicated more recently that his lumbosacral spine problems could be related to his gastrointestinal problems, inasmuch as he is regurgitating food (suggesting claimed malnourishment). See April 2017 Bd. Hrg. Tr. 15-20. Service connection is not currently in effect for a gastrointestinal disorder. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current lumbosacral spine disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused by or aggravated by the Veteran’s service-connected staphylococcus infection and/or prostatitis, including treatment for either disability. In providing this additional opinion, the examiner should address the medical significance, if any, of the February 2000 VA treatment record for a pain consultation that shows an assessment that the possible sources of the Veteran’s lumbosacral pain included ongoing infection (?) chronic inflammation, pelvic or lumbar spinal pathology or pelvic nerve damage of some type resulting from his prostatitis or its treatment (October 2002 VBMS entry, pp. 34-38). See also, e.g., February 2000 VA lumbosacral spine x-ray report with L5-S1 findings and normal appearance of pelvis (March 2000 VBMS entry, p. 1). (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Postek, Counsel