Citation Nr: 21000824 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-56 760 DATE: January 6, 2021 ORDER Entitlement to service connection for acute microhematuria is denied. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. FINDING OF FACT The preponderance of the evidence is against finding that microhematuria began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for microhematuria are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Air Force from June 1957 to March 1978, to include service in the Republic of Vietnam. In a February 2019 decision, the Board, in part, declined to reopen the Veteran’s claims of entitlement to service connection for acute microhematuria, tinnitus and a lumbar spine disorder. The Veteran appealed this portion of the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). While his claims were pending at the Court, the Veteran's representative and the VA Office of General Counsel filed a Joint Motion for Partial Remand requesting that the Court vacate the Board's decision pertaining to the new and material evidence issues and remand the case to the Board for further development and readjudication. In a November 2019 Order, the Court granted the Joint Motion. The case was returned and remanded by the Board in March 2020. The development requested, as pertaining to the Veteran’s microhematuria claim, is completed and the case is ready for adjudication. Service connection for tinnitus was granted in full during the appeal period, thus that issue is no longer before the Board. Regrettably, additional development is necessary before the lumbar spine appeal may be adjudicated. Entitlement to Service Connection for Acute Microhematuria The Veteran contends that his acute microhematuria is related to his service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records include December 1961 findings of acute hemorrhagic cystitis. The Veteran was shown to have been hospitalized and placed on bedrest until his hematuria cleared. A January 1962 followup treatment note stated that the Veteran had a clear urinalysis. The Veteran’s February 1978 report of medical examination for retirement is negative for hematuria as are reports of medical examinations dated in May 1966, June 1967, April 1969 and March 1973. Following service, treatment records include diagnoses of microscopic hematuria, but no cause is noted. A June 2009 treatment note reported microhematuria in the 1990s in a medical history. Another June 2009 treatment note notes hematuria in the 1990s with no cause found. A November 2011 treatment note reports that the Veteran denied a cystoscopy because a 1998 cystoscopy had been painful, suggesting symptoms as early as 1990. The Veteran was afforded a VA examination in August 2017 and a medical opinion was provided in October 2017 in which the examiner found that there was no evidence to support a diagnosis of hematuria, as such a diagnosis is shown by the claims file, a new medical opinion was sought. In October 2020, a VA examiner found that, following a review of the evidence, it was less likely than not that the Veteran’s microhematuria was related to or caused by service to include cystitis/hematuria. The examiner explained that there was no objective medical record evidence to indicate that the Veteran’s in-service cystitis/hematuria did not resolve without residuals. The examine noted that February 1978 service treatment records noted acute hemorrhagic cystitis secondary to Aerobacter aerogenes which was adequately treated and resolved without recurrence. The examiner also noted that there was no immediate post service medical record evidence to indicate treatment for chronic ongoing microhematuria. The Board concludes that, while the Veteran has a current diagnosis of microhematuria and evidence shows that the Veteran had acute microhematuria/cystitis in service, the preponderance of the evidence weighs against finding that the Veteran’s present hematuria disability began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s treatment records do not demonstrate hematuria for many years after service. While the Veteran is competent to report having experienced symptoms of hematuria, he is not competent to provide an opinion as to the cause of his present hematuria. The issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds that the October 2020 VA examiner’s findings that the Veteran’s in-service hematuria was acute and that it was not related to present day symptoms probative. The October 2020 examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As the evidence of record weighs against the Veteran’s claim, service connection for microhematuria is denied. REASONS FOR REMAND Entitlement to service connection for a lumbar spine disorder is remanded. While the Board regrets additional delay, further development is required. The Veteran’s service treatment records include his November 1961 entrance examination which notes that the Veteran had a back injury in childhood with no sequalae (complications). The medical examination includes a finding of a normal spine on examination. In association with the Veteran’s claim for a lumbar spine disorder, the Veteran was afforded a VA examination in July 2012. Following a review of that examination an addendum to that report was sought in August 2012. It was noted that an addendum was needed because the examiner did not provide an opinion as to whether the Veteran had a back disability prior to service which was aggravated by service. The request for an addendum opinion asked the examiner: “was the Veteran’s lumbar spine mild DDD, which clearly and unmistakably existed prior to service, aggravated beyond its natural progression by motor vehicle accident during service?” The VA examiner opined that the Veteran’s degenerative disc disease was not aggravated by the Veteran’s in-service motor vehicle accident. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). It appears that the examination was erroneously ordered under the assumption that a note in the Veteran’s service treatment records showing a pre-service injury was clear and unmistakable evidence of a pre-existing disability, despite the fact that the Veteran’s enlistment examination noted no back symptoms whatsoever and noted that the Veteran’s prior childhood back disability had resolved. However, because the August 2012 VA examiner is shown to concede the issue of whether the Veteran had a back disorder at the time of enlistment, a new medical opinion is required to address this finding, as later VA examiners have found that the Veteran did not have degenerative disc disease until after service. Therefore, an additional VA medical opinion is needed to determine the nature and etiology of the claimed disorder. The matter is REMANDED for the following action: 1. Return the claims file to the Veteran’s October 2020 lumbar spine VA examiner or, if unavailable, an appropriate medical condition. The examiner must review the claims file and respond to the following: a) Did a lumbar spine disorder clearly and unmistakably (undebatable) preexist the Veteran’s service? If the examiner finds it did clearly and unmistakably preexist service, i) was it clearly and unmistakably not aggravated by service? ii) Did the Veteran’s lumbar spine disorder which existed prior to service, at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? b) If the examiner finds that a lumbar spine disorder either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service: i) Is the Veteran’s lumbar spine disorder at least as likely as not related to service, including a September 1966 motor vehicle accident? 2. Then readjudicate any claims remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.