Citation Nr: 21003259 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-15 259 DATE: January 21, 2021 ORDER Entitlement to service connection for renal stones with hydronephrosis is denied. Entitlement to service connection for prostatomegaly is denied. Entitlement to service connection for urinary retention is denied. FINDINGS OF FACT 1. Renal stones with hydronephrosis were not incurred in active service and may not be presumed to have been incurred therein. 2. Prostatomegaly was not incurred in active service and may not be presumed to have been incurred therein. 3. Urinary retention was not incurred in active service and may not be presumed to have been incurred therein. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for renal stones with hydronephrosis have not been met. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for prostatomegaly have not been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e). 3. The criteria for entitlement to service connection for urinary retention have not been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to September 1967, to include service in the Republic of Vietnam from August 1966 to August 1967. The Board remanded these claims in September 2019. 1. Service Connection – Renal Stones with Hydronephrosis Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection, three elements must be established: (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, which is often referenced as the “nexus” element. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As referenced above, evidence of record documented that the Veteran served in the Republic of Vietnam and he is accordingly presumed to have been exposed to herbicide agents (e.g., Agent Orange) during his active service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases warrant presumptive service connection for veterans who were exposed to designated herbicide agents during their active service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). For disabilities that are not listed as presumptive diseases due to herbicide agent exposure, entitlement to service connection may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Certain chronic diseases, including calculi of the kidney, bladder, or gall-bladder, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. Evidence The Veteran submitted a November 2016 intent to file and subsequently submitted a December 2016 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits). On this form, the Veteran listed a disability of “large renal stones with hydronephrosis and possible 1 cm distal right ureterovesical junction stone.” The Board notes that the wording used by the Veteran tracks with a September 2014 private medical record from Dr. A.S., which stated “ultrasound today shows large 5-10mm right renal stones with hydronephrosis and possible 1cm distal right ureterovesical junction stone.” On the December 2016 VA Form 21-526EZ, the Veteran referenced that the claimed disability was the “result of being exposed to Agent Orange, while on active duty in Viet Nam.” In subsequent statements, the Veteran further referenced his in-service exposure to Agent Orange. See May 2018 notice of disagreement (NOD); June 2020 Veteran Statement; August 2020 VA Form 21-526EZ. The Veteran’s service treatment records (STRs) did not reflect treatment related to renal stones. A September 1967 separation examination report did not note any related defects or diagnoses and also noted upon clinical evaluation that the genitourinary system was normal. On the accompanying September 1967 Report of Medical History form, the Veteran denied ever having or having now kidney stones. Of record are various private medical records. Records from Dr. A.S. are dated from September 2014 to September 2016. The first record, from September 2014, noted “a complaint of Urolithiasis” and stated that “[t]he onset of the urolithiasis has been acute and has been occurring in an intermittent pattern for 1 week.” An assessment was noted of “Calculus, kidney.” Other records indicated that the Veteran was hospitalized in November 2014 and referenced were nephrolithiasis and renal stones. A December 2015 note from Dr. A.S. stated “ultrasound shows no residual stones or hydronephrosis.” A September 2016 note from Dr. A.S. lists “Calculus, kidney” under the assessment and plan section, but it was also noted “no new renal colic” and the note did not note the current presence of kidney stones. Also of record are private medical records from Dr. P.R., which included a July 2018 note that stated “[h]as had another bout of nephrolithiasis.” The Veteran was afforded a VA examination in January 2020 and multiple Disability Benefits Questionnaires (DBQs) were completed, to include a Kidney Conditions DBQ. This DBQ noted diagnoses of “resolved renal stone and hydronephrosis” and “nephropathy.” Under the medical history section, it was noted that in 2014 “[t]here was an onset of intractable low back pain. Was treated in emergency department and found to have kidney stones…Underwent ureteroscopy and laser lithotripsy.” The examiner did not reference the July 2018 private medical record from Dr. P.R. discussed above, but presumably the renal stones/nephrolithiasis referenced by that note had resolved by the January 2020 examination. The examiner provided a negative direct service connection opinion, specifically that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The provided rationale stated in full that “[t]here is no evidence to support the resolved renal stone and hydronephrosis, and nephropathy were caused by service. Additionally, the conditions are not presumed to be caused by agent orange exposure. Therefore, it is less likely than not caused by service.” Analysis Upon review, the Board finds that entitlement to service connection is not warranted under any theory for renal stones with hydronephrosis. First, with respect to presumptive service connection related to herbicide agents, as noted above, it is presumed that the Veteran was exposed to herbicide agents during his active service. As discussed above, certain diseases warrant presumptive service connection for veterans who were exposed to designated herbicide agents during their active service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). Renal Stones or hydronephrosis are not listed as presumptive diseases. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). As such, the Board finds that entitlement to service connection on a presumptive basis related to herbicide agent exposure is not warranted for renal stones with hydronephrosis. Second, as noted above, even if presumptive service connection is not warranted, entitlement to service connection may still be established on a direct basis. As referenced, generally in order to establish direct service connection three elements must be established: a current disability, an in-service event and a nexus between the current disability and the in-service event. The evidence of record during the appeal period indicated the presence of a current disability. See July 2018 Dr. P.R. Note (“Has had another bout of nephrolithiasis”). Also, as noted, it is presumed that the Veteran was exposed to herbicide agents during his active service. The Board notes that the Veteran has not contended that the claimed disability is related to any other in-service event and no other in-service event is otherwise reasonably raised by the record, to include the Veteran’s STRs. As such, the remaining issue is whether a causal relationship or nexus exists between the Veteran’s current disability and his in-service herbicide agent exposure. The Board finds that the competent evidence did not indicate such a causal relationship or nexus. In this regard, as noted, of record is a negative January 2020 VA opinion as to direct service connection. The Board notes that there is no competent opinion contrary to this negative opinion. In this regard, the Board has considered the Veteran’s lay statements and contention that his renal stones with hydronephrosis are related to his in-service herbicide agent exposure. The Veteran, however, is not competent to provide an opinion as to the etiology of this disability, to include that such is due to in-service herbicide agent exposure, as this is a complex medical issue that would require education, training or experience to address. See 38 C.F.R. § 3.159(a)(1), (2) (defining competent medical evidence and competent lay evidence); see generally Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As to this issue, the Board affords significantly more probative value to the January 2020 VA opinion that, as discussed above, indicated that, essentially, renal stones and hydronephrosis were not caused by the Veteran’s active service. Overall, the Board finds that competent evidence did not indicate a causal relationship or nexus between renal stones and hydronephrosis and the Veteran’s active service, to include in-service herbicide agent exposure. The Board acknowledges that the January 2020 VA opinion and rationale were succinct. The United States Court of Appeals for Veterans Claims (Court) has stated that “[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the opinion did not contain only data and conclusions, but also included reasoning for the provided conclusion. Specifically, the opinion included a negative conclusion (“it is less likely than not caused by service”) and, though succinct, reasoning for the conclusion (“[t]here is no evidence to support the resolved renal stone and hydronephrosis, and nephropathy were caused by service”). While this opinion and rationale were concise, the Board finds that such was adequate (and probative) because the examiner provided reasoning for the offered conclusion and supplied sufficient information to inform the Board as to the relevant medical question of whether the claimed disability was related to the Veteran’s active service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion…that contributes probative value to a medical opinion”); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (“[T]here is no reasons or bases requirement imposed on examiners. Rather, an adequate medical report must rest on correct facts and reasoned medical judgment so as inform the Board on a medical question and facilitate the Board’s consideration and weighing of the report against any contrary reports”). The Board also acknowledges that the Court stated, in the context of a medical opinion addressing direct service connection for a disability that did not qualify for presumptive service connection related to herbicide agent exposure, that “[a] medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that the January 2020 opinion in this case complied with Stefl. Specifically, while the opinion did state that “the conditions are not presumed to be caused by agent orange exposure,” this was not the entirety of the opinion and the examiner also stated that “[t]here is no evidence to support the resolved renal stone and hydronephrosis, and nephropathy were caused by service.” As such, the negative direct service connection opinion did not find that the condition at issue was not related to service because it was not entitled to presumptive service connection, but because “[t]here is no evidence to support…[the conditions] were caused by service.” This opinion therefore clearly considered direct service connection. In sum, the Board finds that the opinion in this case complied with Stefl. Third, the Board finds that entitlement to service connection is not warranted based on the presumption related to chronic diseases. As noted, certain chronic diseases, including calculi of the kidney, are potentially eligible for presumptive service connection as chronic diseases. In this case, however, the evidence did not indicate that any kidney calculi (i.e., renal stones) were shown as chronic in service, that such disability manifested to a compensable degree within the presumptive period of one year or that such disability was noted in service with continuity of symptomatology. As such, the Board finds that entitlement to service connection is not warranted based on the chronic disease presumption. In sum, the Board finds that renal stones with hydronephrosis were not incurred in active service and may not be presumed to have been incurred therein. As such, the Board concludes that the criteria for entitlement to service connection for renal stones with hydronephrosis have not been met and, to this extent, the Veteran’s claim must therefore be denied. 38 U.S.C. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Service Connection – Prostatomegaly 3. Service Connection – Urinary Retention Evidence As noted, the Veteran submitted a November 2016 intent to file and subsequently submitted a December 2016 VA Form 21-526EZ. On this form, the Veteran listed disabilities of “significant prostatomegaly” and “chronic urinary retention.” The Veteran referenced that these disabilities were the “result of being exposed to Agent Orange, while on active duty in Viet Nam” and in subsequent statements further referenced his in-service exposure to Agent Orange. See May 2018 NOD; June 2020 Veteran Statement; August 2020 VA Form 21-526EZ. The Veteran’s STRs did not reflect treatment related to prostatomegaly or urinary retention. A September 1967 separation examination report did not note any related defects or diagnoses and also noted upon clinical evaluation that the genitourinary system was normal. Of record are various private medical records. Records from Dr. A.S. are dated from September 2014 to September 2016. An October 2014 note stated “CT of abdomen and pelvis showed significant prostatomegaly.” This note also stated “has significant benign prostatic hypertrophy,” which the Board notes is a type of prostatomegaly. See Dorland’s Illustrated Medical Dictionary 1530 (32nd ed. 2012) (defining prostatomegaly as “enlargement of the prostate; see benign prostatic hyperplasia”), 894 (defining benign prostatic hyperplasia as “age-associated enlargement of the prostate…Called also benign prostatic hypertrophy”). Other records indicated that the Veteran was hospitalized in November 2014 and referenced was a diagnosis of chronic urinary retention. A February 2015 note from Dr. A.S. noted that the Veteran underwent a procedure (a photovaporization of the prostate (PVP)) that was “for treatment of medically refractory urinary retention.” A pre-operative diagnosis was noted of prostate hypertrophy and the post-operate diagnosis was noted as “same as preop.” A March 2015 note from Dr. A.S. stated that the Veteran “returns for follow up after [PVP]. [D]oing well, stream is strong…post void residual excellent…pleased with result.” Under the assessment and plan heading, urinary retention was listed and it was stated “doing well post [PVP]” and “retention resolved.” A June 2015 note from Dr. A.S. included under the assessment and plan heading urinary retention and it was stated “doing great” and “off all benign prostatic hypertrophy medications, retention resolved.” A December 2015 note from Dr. A.S. included under the assessment and plan heading urinary retention and it was stated “doing well after [PVP]” and “consider further work up if recur[]s.” The most recent note of record from Dr. A.S. was a September 2016 note. Under the assessment and plan heading, urinary retention was listed and it was stated “post void residual modest,” “no significant urinary tract symptoms” and “continue to serially monitor.” Also of record from Dr. A.S. is a list of all the “Encounters” dating between September 2014 and September 2016 and listed are diagnoses for each encounter. For the September 2016 encounter, a diagnosis is listed of urinary retention. As noted, the Veteran was afforded a VA examination in January 2020 and multiple DBQs were completed. A Urinary Tract Conditions DBQ noted diagnoses of “resolved urolithiasis with ureteroscopy and laser lithotripsy” and “urinary frequency.” The DBQ also noted that the Veteran had a voiding dysfunction that caused increased urinary frequency and it was noted that the etiology of this voiding dysfunction was unknown. Under the medical history section, it was noted that in 2014: There was an onset of intractable low back pain. Was treated in emergency room and found to have kidney stones. The [V]eteran was known to have benign prostate hypertrophy at that time. Underwent ureteroscopy and laser lithotripsy which resulted in urinary retention. The retention was addressed in the emergency room and cared for acutely with catheterization. Underwent surgical treatment of prostatomegaly in 2015. The urinary retention, benign prostate hypertrophy were noted as resolved 6/12/2015. Now reports symptoms of urinary frequency. A Male Reproductive System Conditions DBQ was also completed and diagnoses were noted of resolved prostatomegaly and urinary frequency. The medical history section contained substantively similar information as the Urinary Tract Conditions DBQ. The DBQ also noted that the Veteran had a voiding dysfunction that caused increased urinary frequency and it was noted that the etiology of this voiding dysfunction was unknown and that there was “no current diagnoses that would likely cause urinary frequency.” The examiner provided a negative direct service connection opinion, specifically that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The provided rationale stated in full for prostatomegaly that “[t]here is no evidence to support the resolved prostatomegaly was caused by service. Additionally, the condition is not presumed to be caused by agent orange exposure. Therefore, it is less likely than not caused by service.” An additional rationale stated that “[t]here is no evidence to support the resolved urolithiasis with ureteroscopy and laser lithotripsy and urinary frequency were caused by service. Additionally, the conditions are not presumed to be caused by agent orange exposure. Therefore, it is less likely than not caused by service.” Analysis Upon review, the Board finds that entitlement to service connection is not warranted for prostatomegaly or urinary retention. The Board finds that the Veteran did not have these disabilities at the time the claims were filed or during the pendency of the appeal period. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (“The Court holds that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency”). In this regard, there are no medical records dated during the appeal period that indicated the presence of the claimed disabilities. As noted, evidence of record prior to the appeal period referenced diagnoses of the claimed disabilities. The most recent clear diagnosis of prostatomegaly appears to be a February 2015 post-operative diagnosis of prostate hypertrophy. As to urinary retention, medical records noted that the Veteran underwent a PVP procedure in February 2015 for this condition. Subsequent to the procedure, a March 2015 note stated “retention resolved” and a June 2015 note stated “off all benign prostatic hypertrophy medications, retention resolved.” Also, with respect to urinary retention, as noted, the January 2020 Urinary Tract Conditions DBQ noted a diagnosis of urinary frequency and not urinary retention. With respect to prostatomegaly, the January 2020 Male Reproductive System Conditions DBQ noted a diagnosis of resolved prostatomegaly. Both DBQs stated that “[t]he urinary retention, benign prostate hypertrophy were noted as resolved 6/12/2015.” This appears to be a reference to the previously discussed June 2015 note from Dr. A.S., which included under the assessment and plan heading urinary retention and stated “doing great” and “off all benign prostatic hypertrophy medications, retention resolved.” The Board affords the January 2020 DBQs significant probative value as to the issue of whether the Veteran had the relevant disabilities at the time the claims were filed or during the pendency of the appeal period. The January 2020 VA examiner examined the Veteran and reviewed the medical evidence of record and stated that both prostatomegaly and urinary retention had resolved in June 2015, prior to the November 2016 intent to file that preceded the December 2016 claims on appeal. The threshold requirement for entitlement to service connection to be granted is competent evidence of the current existence of the claimed disability. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that “[i]n the absence of proof of a present disability there can be no valid claim”). In this case, competent evidence did not identify the claimed disabilities of prostatomegaly and urinary retention at the time the claims were filed or during the pendency of the appeal period and without this the claims cannot succeed. The Board acknowledges that a diagnosis was noted for a September 2016 encounter with Dr. A.S. of urinary retention. Review of the associated note shows that, under the assessment and plan heading, urinary retention was listed and it was stated “post void residual modest,” “no significant urinary tract symptoms” and “continue to serially monitor.” It is therefore not clear that the Veteran was actually diagnosed with urinary retention at that time, as opposed to a notation of a prior resolved condition that would continue to be monitored. In any event, the January 2020 VA examiner reviewed the evidence of record, which included the September 2016 records, and stated that urinary retention was noted as resolved in June 2015. Moreover, even assuming (without deciding) that the Veteran had urinary retention at the time the claim was filed or during the pendency of the appeal period, entitlement to service connection would still not be warranted because the competent evidence did not indicate a causal relationship or nexus between the Veteran’s active service and urinary retention. Such a nexus would be required because this disability is not eligible for presumptive service connection due to herbicide agent exposure. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). In this regard, as noted, the January 2020 DBQs noted under the medical history section that the Veteran “[u]nderwent ureteroscopy and laser lithotripsy which resulted in urinary retention.” See also November 2014 Private Medical Record (stating that following an October 2014 ureteroscopy and a November 2014 lithotripsy that “[p]ostoperatively the [Veteran] has had problems with recurrent urinary retention”). Also, a November 2014 private medical record noted a diagnosis of “[u]rinary retention…secondary to benign prostatic hypertrophy.” This evidence indicated that urinary retention was caused by ureteroscopy and laser lithotripsy (which itself was treatment for kidney stones, which entitlement to service connection has been denied for herein) or benign prostatic hypertrophy (which entitlement to service connection has been also denied for herein) and not the Veteran’s active service. The Board notes that there is no competent evidence indicating that urinary retention was due to the Veteran’s active service and, while acknowledging the Veteran’s contention that such was due to his in-service herbicide agent exposure, the Board finds that the Veteran is not competent to provide an opinion as to the etiology of this disability. In review, the Board finds that, even assuming (without deciding) that the Veteran had urinary retention at the time the claim was filed or during the pendency of the appeal period, entitlement to service connection would still not be warranted. Similarly, even assuming (without deciding) that the Veteran had prostatomegaly at the time the claim was filed or during the pendency of the appeal period, entitlement to service connection would still not be warranted because the competent evidence did not indicate a causal relationship or nexus between the Veteran’s active service and prostatomegaly. Such a nexus would be required because while prostate cancer is eligible for presumptive service connection due to herbicide agent exposure, prostatomegaly is not. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). The Board acknowledges that the Veteran listed prostate cancer, without further clear explanation, on his May 2018 NOD. Competent evidence of record, however, did not show a diagnosis of prostate cancer, even after VA asked the Veteran to identify any such evidence. See September 2019 Board Remand (containing a directive to “contact the Veteran…and request…assistance in identifying any outstanding relevant records to include any records documenting a diagnosis of prostate cancer”); November 2019 VA Letter to the Veteran (complying with the quoted remand directive). As to the issue of direct service connection and nexus, as noted, the January 2020 VA examiner provided a negative direct service connection opinion, with a rationale stating “[t]here is no evidence to support the resolved prostatomegaly was caused by service.” The Board finds that that the analysis provided above regarding the adequacy and probative value of the January 2020 VA opinion and rationale addressing renal stones is also applicable to this VA opinion. The Board notes that there is no competent evidence indicating that prostatomegaly was due to the Veteran’s active service and, while acknowledging the Veteran’s contention that such was due to his in-service herbicide agent exposure, the Board finds that the Veteran is not competent to provide an opinion as to the etiology of this disability. In review, the Board finds that, even assuming (without deciding) that the Veteran had prostatomegaly at the time the claim was filed or during the pendency of the appeal period, entitlement to service connection would still not be warranted. In sum, the Board finds that prostatomegaly and urinary retention were not incurred in active service and may not be presumed to have been incurred therein. As such, the Board concludes that the criteria for entitlement to service connection for urinary retention and prostatomegaly have not been met and, to this extent, the Veteran’s claims must therefore be denied. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.