Citation Nr: 20011906 Decision Date: 02/13/20 Archive Date: 02/12/20 DOCKET NO. 17-25 537 DATE: February 13, 2020 ORDER Entitlement to service connection for nephrolithiasis (kidney stones) is granted. Entitlement to service connection for hematuria as secondary to kidney stones is granted. FINDINGS OF FACT 1. The Veteran’s kidney stones preexisted the Veteran’s military service. 2. The Veteran’s active duty service worsened his kidney stones beyond the disease’s natural progression. 3. The Veteran’s hematuria is a preexisting condition that is secondary to kidney stones. 4. The Veteran’s active duty service worsened his hematuria beyond the disease’s natural progression. CONCLUSIONS OF LAW 1. The criteria for service connection for nephrolithiasis have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for secondary hematuria have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1989, to August 1989, and from October 2003 to April 2005. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) April 2014 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran appeared before the undersigned Veterans Law Judge in a December 2019 Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. Service Connection 1. Entitlement to service connection for nephrolithiasis 2. Entitlement to service connection for hematuria The Veteran contends that his kidney stones and associated hematuria are aggravated by his active duty service. Specifically, that his deployment to Iraq exacerbated his medical conditions. Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that “[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). The Veteran bears the burden of showing that the preexisting condition worsened in service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Until the Veteran shows an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id; see also Horn v. Shinseki, 25 Vet. App. 231 (2011). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310 (b). Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s medical record is clear that his kidney stones and hematuria pre-dated his second period of active duty service. Furthermore, the Veteran’s medical records clearly show that his kidney stones and hematuria are linked with one another in that the hematuria is shown to be due to the kidney stones. See, e.g., January 2014 VA compensation and pension examination. While the Board notes that hematuria defined as blood in the urine (see Dorland’s Illustrated Medical Dictionary 845 (31st ed. 2007)), is an abnormal laboratory finding and not necessarily a disability for which service connection may be granted, there is evidence showing an underlying disability that is related to service. A symptom (to include abnormal laboratory study or pain), without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a “disability” for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). In this case, there is a diagnosed or identifiable underlying malady or condition (kidney stones) resulting in hematuria and thus, a disability for VA purposes is established. While the Veteran is competent to provide testimony as to the onset and severity of the symptoms, whether or not his active duty service aggravated both conditions beyond their natural progression is a complex medical determination that can only be made by a qualified medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In May 2013 Dr. F., a VA physician treating the Veteran, noted that “it is my medical opinion, that it is as least as likely as not, that the hot and arid conditions in Iraq contributed to the worsening of his nephrolithiasis condition.” The Veteran’s service treatment records (STRs) show that he was treated for kidney stones and hematuria multiple times in service, to the point that hospitalization was required. Since separating from service, the Veteran has undergone additional treatment, including invasive surgical procedures, to address his kidney conditions. Prior to his military service the Veteran reportedly did not need to treat his conditions with invasive procedures. The Board finds that Dr. F.’s opinion is sufficient to show that the preexisting conditions worsened because of the Veteran’s military service. Thus, the presumption of aggravation is applied, and in order to rebut the presumption VA must show by “clear and unmistakable evidence” that the increase in the Veteran’s disability was a result of the natural progress of the diseases. Walker v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In February 2014, a VA examiner noted that the Veteran’s kidney stones and hematuria were “not increased by military service, but it is increased due to the natural progression of the disease.” The examiner continued and explained his reasoning, stating that kidney stones have a 60 percent recurrence rate that is independent of outside factors including being in the military. The Board notes that the February 2014 VA examiner did not address Dr. F.’s opinion that the Veteran’s deployment to Iraq aggravated his kidney conditions, and merely rested his conclusion on the fact that statistically kidney stones and hematuria recur frequently regardless of the patient’s activities. The February 2014 examiner also failed to address the fact that it was only after his military service that the Veteran was required to undergo invasive surgeries to treat his conditions. The Board finds that the February 2014 examiner was unable to show “by clear and unmistakable evidence” that the worsening of the Veteran’s kidney stones and hematuria were a result of the natural progression of the diseases. As the February 2014 examiner’s opinion is not adequate to rebut the presumption that the Veteran’s kidney stones and hematuria were worsened by his active duty service, and after resolving the benefit of the doubt in the Veteran’s favor, the Board finds that the Veteran’s kidney stones and hematuria were aggravated beyond the natural progression by his active duty service. Thus, service connection for nephrolithiasis and associated hematuria is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, Associate Counsel 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.