Citation Nr: 20063294 Decision Date: 09/28/20 Archive Date: 09/28/20 DOCKET NO. 18-00 210A DATE: September 28, 2020 ORDER Service connection for urethral stricture is granted. The Board is aware that the Veteran has requested a hearing. In light of delays in hearings scheduling caused by COVID-19, the Board ordered a review of some of the oldest docket legacy cases in our hearing queue that may be fully granted with evidence of record. Based on the grant of the appeal, the Veteran’s request for a hearing is no longer necessary and will be cancelled. FINDINGS OF FACT 1. The Veteran had active service from November 1970 to September 1972. 2. Urethral stricture was not noted at enlistment, and the Veteran is presumed to have been sound at enlistment. Urethral stricture did not clearly and unmistakably preexist service. 3. Urethral stricture has been related to service. CONCLUSION OF LAW Urethral stricture was incurred in service. 38 U.S.C. §§ 1110, 1111, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition to the laws and regulations outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If the disorder was not “noted” at the time of induction, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Specifically, the Court in Wagner held: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran’s claim is one for service connection. See 38 C.F.R. § 3.322. Wagner, 370 F.3d at 1096. The Veteran’s enlistment examination was negative for any subjective reports or objective findings of a urinary tract disability. Therefore, a disability of the urethra was not noted at enlistment and he is presumed to have been sound. To rebut the presumption, the evidence must clearly and unmistakably establish urethral stricture preexisted and was not aggravated by service. The Veteran’s Report of Medical History at his October 1970 enlistment examination indicated that he was in motor vehicle accident (MVA) at age 7, but the clinician found no sequela. The MVA was also documented in March 1972 service treatment records (STRs) when the Veteran was treated for urethral stricture, and the Narrative Summary for that treatment indicated that he had bony pelvic injuries from the MVA and it was “suspected” he had a urethral catheter at that time. However, a mere suspicion is not sufficient to establish that the Veteran clearly and unmistakably had damage or disability of the urethra prior to service. Further, a May 2017 VA examiner noted the March 1972 hospital report and indicated that pelvic trauma was a major cause of developing a urethral stricture and that “if a urethral catheter was used at [the time of the accident],” the catheter would be another major cause. However, the fact that the Veteran sustained trauma before service that could have caused the urethral stricture does not rise to the level of clear and unmistakable evidence, and the statement as to the catheter was mere speculation. Moreover, as discussed by a December 2017 VA examiner, in March 1972, the Veteran underwent an excretory urography that showed deformity of the right ileum but completely normal urinary tracts. The December 2017 examiner also considered that the MVA could have potentially caused pelvic trauma and that a catheter was potentially used at that time but found that there was no medical evidence of evaluation or treatment for urethral stricture prior to service. Finally, the March 1972 STRs state that the urethral stricture and associated diagnoses and treatment were incurred in the line of duty. As such, there is not clear and unmistakable evidence that urethral stricture preexisted service, and the presumption of soundness cannot be rebutted in this case. STRs reflect multiple complaints and treatment associated with urethral stricture; however, as a disability of the urethra is not found to have preexisted service, the question of whether any such disability was not aggravated by service is rendered moot. Therefore, the question becomes whether the Veteran has a current disability manifested by urethral stricture that is directly related to service. In this regard, the first element of direct service connection – a current diagnosis – is met. May 2017 VA treatment notes reflect that the Veteran was transferring his care to VA from a private urologist. The VA urologist noted the Veteran’s reports of continued “poor” flow of urine and history of surgeries for urethral stricture and documented urethral stricture on the Veteran’s Problem List. Therefore, a current disability for this appeal is of record. As for the second element of service connection – an in-service incurrence – as stated above, STRs note treatment for urethral stricture. Specifically, the Veteran had urinary complaints beginning in September 1971 and culminating with surgery in March 1972. Therefore, an in-service incurrence is established. Finally, the third element of direct service connection – a medical nexus – is also met. A VA examination was performed in March 2017, and the examiner provided the May 2017 opinion, stating that the urethral stricture was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner based this opinion on the fact that pelvic trauma and urethral catheters were major causes of urethral stricture, referring to the pre-service MVA. The examiner did not provide an opinion as to direct service connection that did not consider the pre-service MVA. In contrast, the December 2017 VA examiner reviewed the record, including STRs, in detail and as discussed above, determined that the urethral stricture did not preexist service. Therefore, the examiner opined that the urethral stricture first manifested in service. Accordingly, the Board concludes that the evidence for and against the appeal for service connection for urethral stricture is in equipoise. Therefore, resolving all reasonable doubt in the Veteran’s favor, service connection for urethral stricture is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED