Citation Nr: 20004768 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-34 049 DATE: January 21, 2020 ORDER New and material evidence has been submitted and the previously denied and final claim of service connection of for a bladder condition is reopened. Entitlement to service connection for a bladder condition is granted. FINDINGS OF FACT 1. In a February 1973 rating decision, the RO denied service connection for a bladder condition; the Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 2. Additional evidence has been received since the February 1973 rating decision that relates to an unestablished fact that is necessary to substantiate the claim for service connection for a bladder condition. 3. The Veteran’s bladder condition began during active service. CONCLUSIONS OF LAW 1. The February 1973 rating decision that denied service connection for a bladder condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence to reopen the claim for service connection for a bladder condition has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 3. The criteria for service connection for a bladder condition are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Evidence Intake Center in Newnan, Georgia. Jurisdiction lies with the Regional Office (RO) in Winston-Salem, North Carolina, which certified the case to the Board. The Veteran submitted a Notice of Disagreement (NOD) in May 2016; a Statement of the Case (SOC) was issued in May 2017; and the Veteran perfected his appeal with the timely submission of a VA Form 9 in June 2017. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a bladder condition. The Veteran seeks to reopen a claim of entitlement to service connection for a bladder condition. The claim was previously denied in a February 1973 rating decision on the basis that the evidence did not show a current bladder condition. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the February 1973 rating decision became final. See 38 U.S.C. § 7105 (d)(3). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). After a review of the evidence submitted since the February 1973 rating decision became final, the Board determines that the claim should be reopened. The evidence now includes new medical evidence which raises the possibility that a currently diagnosed bladder condition is related to his active duty service. Specifically, the Veteran submitted July 2016, August 2016, and July 2017, private treatment records documenting a current bladder disability manifested by urinary frequency, nocturia, and incontinence, which, according to various physicians, has been increasing since Veteran underwent bladder surgery in 1972 in-service. See, e.g., July 2016 Statement from Dr. J.G.; August 2016 Statement from Drs. A.K. and J.G; and July 2017 Statement from Dr. M.A. Not only is this evidence "new" in that it was not of record prior to the last final denial of the claim, it is also "material," as it relates to an unestablished fact necessary to support the claim. Namely, it shows that there may be a nexus between a current bladder condition and the Veteran's active duty service. Therefore, the claim should be reopened on this basis. 2. Entitlement to service connection for a bladder condition. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis The Veteran asserts that his current bladder condition is directly related to in-service treatment/surgery for urinary symptoms. He competently reports that he has experienced ongoing and increasing urinary symptomatology since that time. In this case, the Board concludes that the Veteran has a current bladder condition that began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As an initial matter, the Veteran has been diagnosed with a current bladder disability manifested by urinary frequency, nocturia, incontinence, and diverticula. See, e.g., July 2016 Statement from Dr. J.G.; August 2016 Statement from Drs. A.K. and J.G; and July 2017 Statement from Dr. M.A. Service treatment records confirm that the Veteran was treated for hematuria and flank pain; he eventually underwent surgery for repair of bladder diverticulum in April 1972. Based on the foregoing, the remaining question for consideration here is whether the current bladder disability is related to service. On this question there is only probative medical evidence in favor of the claim. Namely, a July 2016 statement from the Veteran’s urologist, Dr. J.G., notes a history of bladder diverticulectomy in 1972, with increasing urinary frequency and nocturia over the last several years. Likewise, an August 2016 statement from Drs. J.G. and A.K., notes complaints of urinary frequency and incontinence “which have been increasing since he underwent bladder surgery in 1972 which on active duty in the United States Marine Corps.” The statement goes on to note, “Since that time period, he has been having these symptoms which require him to wear absorbent pads 5-7 times during the day and at least 5-6 times during the night.” Lastly, in a July 2017 statement, Dr. M.A., a physician who has personally known the Veteran for approximately 47 years, stated that he has witnessed the Veteran’s urinary problems (e.g., incontinence and frequency) since his separation from service in 1972; that the symptoms did not abate during the succeeding years and continued to the present with the need for incontinence briefs with excessive daytime and nocturnal urinary frequency; and that, in his professional opinion, “it is clear to me the connection of his surgery in 1972 to these early signs and symptoms were certainly associated, if not directly related” to his current urinary symptoms. Notably, the record does not contain any probative medical evidence or opinions which contradict the statements provided by Drs. M.A., J.G., and A.K. In short, the STRs confirm that the Veteran was surgically treated for urinary complaints, to include diverticula, in-service, and the most competent and probative evidence of record indicates that his current bladder condition (manifested by urinary frequency, nocturia, incontinence, and diverticula) has persisted since service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bladder condition arose in-service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a bladder condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.