Citation Nr: 1808233	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  11-19 652	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for microscopic hematuria (claimed as blood in urine), to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D.S. Chilcote, Associate Counsel

INTRODUCTION

The Veteran had active duty service from June 1968 to August 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

The Veteran testified at a hearing before the Board in September 2013.  A transcript of that hearing has been associated with the claims file.  The Veterans Law Judge who held that hearing is no longer employed by the Board.  In January 2017, the Veteran was provided the opportunity to appear at another hearing before another Veterans Law Judge; however, the Veteran responded that he did not want a second hearing.
 
The Board remanded the case for further development in June 2014 and May 2017.  That development was completed, and the case has since been returned to the Board for appellate review.

This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.  



FINDING OF FACT

The Veteran has not been shown to have a current disability associated with his microhematuria, and he has refused testing to determine whether there is any current disorder.



CONCLUSION OF LAW

A disability associated with microhematuria was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran has stated that he did not receive a copy of the May 2017 remand. See November 2017 statement.  According to VA regulation, notification for VA purposes is written notice sent to the claimant's last address of record. 38 C.F.R. § 3.1(q).  There is a presumption of regularity in the law to the effect that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties."  Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)).  It is clear from these cases that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in VA operations. See Jones v. West, 12 Vet. App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992).  If a claimant alleges non-receipt of a VA notice letter, clear evidence to rebut the presumption of regularity "mandates not only a declaration by the appellant of non-receipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery." Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). 

In the present case, there is no evidence, other than the Veteran's own assertion, showing or suggesting that the Board did not properly fulfill its duty in mailing notice of the May 2017 remand to the Veteran.  The record reflects that the letter was sent to the Veteran's address of record at that time and was not returned as undeliverable.  The Veteran's allegation, standing alone, is not sufficient to rebut the presumption of regularity. See Jones, 12 Vet. App. at 100.  The Veteran has not submitted any other evidence to suggest that the Board did not properly fulfill its administrative duty in mailing him a copy of the remand.  Thus, it may be presumed that the Board properly mailed the remand to the Veteran.

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


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.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In considering the evidence of record under the laws and regulations, the Board finds that service connection for microhematuria is not warranted.

The Veteran's service treatment records document a history of microscopic hematuria; however, no definitive cause was determined.  In 1979 and again in 1988, the Veteran was evaluated for microscopic hematuria, including a complete urology work-up.  CT scans, cystoscopies, and intravenous pyelograms (IVPs) revealed no abnormalities.  In March 1979, the treating physician stated that the finding of microhematuria could possibly be related to sickle cell trait and recommended a follow-up appointment with a hematologist.  

In February 2011, the Veteran was referred to a VA urologist for microscopic hematuria.  A CT scan revealed no abnormalities, and the Veteran refused a cystoscopy to evaluate the lower urinary tract.  In August 2011 and again in January 2015, against medical advice, the Veteran reiterated that he did not want another cystoscopy.  

In June 2014, the Board remanded the case to afford the Veteran a VA examination to determine whether there was any current disability associated with his microhematuria.  In August 2014, the Veteran sought a medical opinion from his VA doctor who declined to sign the disability sheet because the Veteran had refused his last urology work-up for microscopic hematuria.  Dr. K.S. noted that the Veteran had not been assessed by cystoscopy since the 1980s, despite his risk factors.  In her opinion, he required a complete work-up, including a CT urogram and flex cystoscopy, which he refused, stating that he wanted them done by an outside urologist.  

In November 2014, Dr. S.E.K. provided a VA medical opinion after reviewing the claims file.  The examiner concluded that, without a current diagnosis, it was impossible to answer the question regarding causation without resort to speculation.  Dr. S.E.K. noted that the Veteran had refused further testing from the VA urologist.  Moreover, his two most recent urinalyses in June 2013 and June 2014 were normal.  

In May 2017, the Board remanded the case to obtain additional private treatment records, including the results of any CT urogram and flexible cystoscopy that may have been performed.  The Board noted that the Veteran told the VA examiner in 2014 that he would have such testing done by an outside physician, but the claims file did not contain the results of any such testing.  Thereafter, the AOJ obtained private treatment records, but there is still no diagnosis of any underlying condition.  In addition, there is no indication that the Veteran underwent the necessary urology work-up, to include a CT urogram and flexible cystoscopy.  As detailed above, the Veteran has repeatedly refused additional testing.

While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street.  See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence).  In this case, the Veteran has not undergone the necessary testing by VA or a private healthcare provider to determine whether he has a current disability for which service connection could be established.  

A positive screening test for microscopic hematuria is not in itself a compensable disability under VA law.  Hematuria is defined as blood in the urine. See Dorland's Illustrated Medical Dictionary 844 (31st edition 2007).  This represents a laboratory finding and not a disability for VA purposes, and there is no indication that this symptom has resulted in any functional impairment to the Veteran which would allow for the assignment of a separate disability evaluation. See generally, Schedule for Rating Disabilities, 38 C.F.R. § Part IV; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (based on the definition found in 38 C.F.R. § 4.1, the term disability "should be construed to refer to impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself").  Laboratory findings are not, in and of themselves, disabilities.  See e.g. 61 Fed. Reg. 20440, 20445 (May 7, 1996).

The Veteran has not submitted or identified any evidence of a currently diagnosed condition related to the laboratory finding of microscopic hematuria for which service connection may be granted.  The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Evidence must show that the Veteran currently has the disability for which benefits are being claimed.

Because the evidence shows that the Veteran has not had a current disability during the pendency of the appeal, the Board concludes that service connection is not warranted, and no discussion of the remaining elements is necessary, including herbicide exposure. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). 

As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).         

 
ORDER

Entitlement to service connection for microscopic hematuria is denied.



____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs