Citation Nr: 21070609 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-61 357 DATE: November 24, 2021 ORDER New material evidence having been received, the appeal to reopen the claim for service connection for hematuria and hemoglobinuria is granted. Entitlement to service connection for hematuria and hemoglobinuria is granted. REMANDED Entitlement to service connection for prostatitis is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for degenerative joint disease, right shoulder, status post SLAP and bicep tear, is remanded. Entitlement to service connection for a right knee condition is remanded. FINDINGS OF FACT 1. The April 2008 rating decision denied service connection for hematuria and hemoglobinuria. 2. The November 2014, December 2015, April 2017 rating decisions declined to reopen the Veteran's claims for service connection, reasoning that sufficient new and material evidence had not been submitted to establish a current diagnosed disability. 3. New and material evidence has been submitted to reopen the claim of entitlement to service connection for hematuria and hemoglobinuria. 4. Resolving reasonable doubt in favor of the Veteran, the Veteran's hematuria and hemoglobinuria first manifested in service. CONCLUSIONS OF LAW 1. The criteria to reopen the issue of entitlement to service connection for hematuria and hemoglobinuria have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b). 2. The criteria for service connection for hematuria and hemoglobinuria are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1991 to April 1993 and from May 2004 to February 2005. The Veteran had additional service in the Army National Guard from 2003 to 2013 and the Army Reserve from 2013 to 2018. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter agency of original jurisdiction or AOJ). In May 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Regarding the issue of service connection for prostatitis, the Board notes that this matter was initially considered a new and material evidence claim. However, upon procedural review of the record, the Veteran's service connection claim for prostatitis was not final. For context, the Veteran filed a claim for service connection for prostatitis in November 2015. In December 2015, the Veteran received a rating decision denying his claim. He requested a review of the denial in March 2016, within one year of his December 2015 Rating Decision. In May 2017, he received a second rating decision, denying his claim. He filed a notice of disagreement (NOD) in June 2017, again, within one year of his May 2017 rating decision. In September 2017, the Veteran received a statement of the case (SOC), which denied his claims. He filed a Form 9, appealing the decision, within 60 days of his notification letter of the statement of the case and opted for a hearing. The case was certified to the Board in January 2018 and the Veteran was afforded a hearing in May 2021. Based on the timeline discussed above, the Veteran's December 2015 rating decision was not final. 38 C.F.R. § 3.156. As such, the Board will analyze whether the Veteran is entitled to service connection for prostatitis. Further, regarding the issues of entitlement to service connection for a back condition, right shoulder degenerative joint disease, and a right knee condition, which were also considered new and material evidence claims. The Board finds upon procedural review of the record, the Veteran's service connection claims were not final. Here, the Veteran filed a claim for service connection for the listed conditions in July 2014. In November 2014, the Veteran received a rating decision, denying his claims. The Veteran submitted a fully developed claim for the above claims within one year of the November 2014 rating decision. He received a second rating decision in December 2015, denying his claims. He requested a review of the denial in March 2016, again, within one year of his December 2015 Rating Decision. In May 2017, he received a third rating decision, denying his claims. He filed an NOD in June 2017, again, within one year of his May 2017 Rating Decision. In September 2017, the Veteran received an SOC, which denied his claims. He filed a Form 9, appealing the decision, within 60 days of his notification letter of the statement of the case and opted for a hearing. The case was certified to the Board in January 2018 and the Veteran was afforded a hearing in May 2021. Based on the timeline discussed above, the Veteran's November 2014 rating decision was not final. 38 C.F.R. § 3.156. As such, the Board will analyze whether the Veteran is entitled to service connection for listed conditions. New and Material Evidence The Veteran seeks to reopen his service connection claim for hematuria and hemoglobinuria. Unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim considering all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence means evidence not previously submitted to VA decision makers. "Material" evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). To reopen, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not on whether the evidence remedies the principal reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. New material evidence having been received, the appeal to reopen the claim for service connection for hematuria and hemoglobinuria is granted The Veteran was initially denied service connection for hematuria and hemoglobinuria in March 2008 on the basis that the Veteran's claimed disabilities were considered to be laboratory findings and not disabilities themselves and therefore are not subject to service connection. The evidence at that time included the Veteran's service treatment records (STRs), which noted in-service treatment for hematuria. In April 2008, following the receipt of additional STRs, the AOJ provided the Veteran a new rating decision, which confirmed and continued the previous denial of service connection for hematuria and hemoglobinuria. By letter dated April 9, 2008, the Veteran was notified of the denial and his appellate rights. The Veteran did not appeal or submit new and material evidence within one year of that decision; thus, the April 2008 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran requested to reopen his claim in July 2014; that request was denied in a November 2014 rating decision. The evidence at that time included medical treatment records and additional service treatment records. The AOJ denied the Veteran's claim to reopen, reasoning that sufficient new and material evidence had not been submitted to establish a current diagnosed disability. In November 2015, the Veteran requested to reopen his claim; that request was denied in a December 2015 rating decision. The evidence at that time included medical treatment records and additional STRs. The AOJ denied the Veteran's claim to reopen, reasoning that sufficient new and material evidence had not been submitted to establish a current diagnosed disability. In May 2017, the AOJ provided the Veteran a new rating decision, which confirmed and continued the previous denial of the Veteran's request to reopen his claim for service connection for hematuria and hemoglobinuria. Since that time, evidence added to the claims file include: updated medical treatment records, which note recurrent assessments for blood in the Veteran's urine, urine cytology tests, and urine analyses; and hearing testimony, which describes the onset of the Veteran's symptoms, the subsequent treatment of his symptoms, and additional theories of entitlement. Since this evidence was not previously considered and it raises a possibility of substantiating the Veteran's claim, it constitutes new and material evidence sufficient to reopen the claim. 2. Entitlement to service connection for hematuria and hemoglobinuria The Veteran's STRs show complaints of blood in his urine, which began during the fourth month of maneuvers in the Sinai Desert in August 2004. Further, his records show that in September 2004, he was referred to a urologist. The urologist diagnosed gross hematuria, with an unknown etiology. A year later, in September 2005, following the occurrence of 3 more episodes of hematuria, a physician diagnosed macroscopic hematuria. Therefore, the in-service disease or injury element has been met. Additionally, following the Veteran's initial active service treatment for hematuria, in September 2006, while serving in the National Guard, the Veteran was treated for intermittent hematuria. At that time, it was reported that the Veteran has a history of parasite infection which the hematuria was considered initially related too, but the parasite was treated, the infection was resolved, but the hematuria continued with intermittent symptoms. In October 2006, the Veteran reported that, while serving in Sinai Desert, he was diagnosed with schistosomiasis, an endemic to Middle East. Following the Veteran's active military service, the Veteran's treatment records note continued complaints of 10 years of intermittent gross hematuria, which has been treated empirically as prostatitis. Further, long term antibiotics, an empiric trial of Finasteride daily to see if the hematuria stops, and a history of hemoglobinuria of unknown origin were noted in the same records. The Veteran's treatment records continue to note "blood in urine" as an active problem. In May 2021, the Veteran testified at a Board hearing. During the hearing, the Veteran stated that following his service in Egypt, he was diagnosed with hematuria and hemoglobinuria of unknown etiology. Further, he stated that he was treated for parasites while Israel, which was assumed to be the cause of the Veteran's hematuria and hemoglobinuria. However, following the treatment of the parasites, the hematuria and hemoglobinuria continued. The Board finds that the Veteran has a current diagnosis of hematuria and hemoglobinuria. While the AOJ has reasoned these are "laboratory findings," the Board observes that there appears to be an underlying cause which is not yet known. However, the Veteran has been provided treatment with long term antibiotics and an empiric trial of Finasteride in an attempt to treat the underlying cause. This case turns on the remaining element of service connection, which is whether the Veteran's hematuria and hemoglobinuria are related to or had their onset during his military service. See 38 C.F.R. § 3.303(a). The remaining evidence shows that the Veteran has had the same symptoms and manifestations, such as blood in urine, in and since service. The Veteran reported during service, that he had blood in his urine and then he was diagnosed with hematuria multiple time during service. Presently, the Veteran has consistently reported complaints of blood in his urine, and he was diagnosed, again, with hematuria. At this point, given that there is sufficient evidence as to grant the claim, further development is not necessary to obtain a medical opinion. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"). As the evidence of record establishes that the Veteran had hematuria in service and that his hematuria has been ongoing since service. The Board notes that hematuria may be considered an abnormal laboratory finding, not a "disability" for which service connection may be granted. However, hematuria may be rated by analogy to the ratings of the genitourinary system under 38 C.F.R. § 4.115a. Pursuant to 38 C.F.R. § 4.115a, a compensable (10 percent) rating for urinary tract infection involves long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. The record establishes that the Veteran has undergone drug therapy to treat his hematuria, including long term antibiotics and a trial of Finasteride, a urinary retention medication, to see if the hematuria stops. Further, the evidence shows that the Veteran has hematuria multiple times per-year and he gets a lab workup at least every year to monitor the chronic episodic hematuria, which, to date, has been shown to manifest without cause, causing stress on the Veteran. Thus, the Veteran is monitoring and managing his hematuria with frequent, regular visits to the doctor for laboratory studies, and he has undergone longterm drug therapy to treat his hematuria. Therefore, based on the evidence of record, and resolving any doubt in favor of the Veteran, for purposes of this adjudication, the Board finds that the Veteran's symptoms approximate at least a compensable rating under the appropriate diagnostic code evaluating urinary tract infection. See 38 C.F.R. § 4.115a. Accordingly, resolving reasonable doubt in his favor, service connection for hematuria and hemoglobinuria is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits. REASONS FOR REMAND 1. Entitlement to service connection for prostatitis is remanded. The record establishes that the Veteran received a line of duty diagnosis of prostatitis in June 2010. Prior to this diagnosis, the Veteran's treatment records note an enlarged prostate. Additionally, during the May 2021 Board hearing, the Veteran raised the theory that his prostatitis is secondary to his now service-connected hematuria and hemoglobinuria. However, the Veteran has not yet been provided a VA examination to determine the nature or etiology of his prostatitis. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for prostatitis because no VA examiner has opined whether the Veteran's diagnosed prostatitis is related to service or secondary to his service-connected hematuria and hemoglobinuria. 2. Entitlement to service connection for a back condition is remanded. The Veteran's STRs note complaints of lower back pain. Further, his post service treatment records note current complaints and treatment for back pain. Additionally, during the May 2021 Board hearing, the Veteran testified that he currently carries a diagnosis of degenerative joint disease, paralysis of that sciatic nerve, and herniated discs, which are related to the cumulative effects of his nearly 100 in-service parachute jumps and a 2012 incident where the Veteran attempted to catch a hand truck during annual training. The Veteran has not yet been provided a VA examination to determine the nature or etiology of his back conditions. Accordingly, a remand is necessary to ensure that VA obtains an examination or medical opinion that adequately discusses whether the Veteran's current back conditions is related to his service and/or in-service injury. 3. Entitlement to service connection for degenerative joint disease, right shoulder, status post SLAP and biceps tear, is remanded. The Veteran was afforded an VA examination in November 2014 for his right shoulder condition. However, the Board finds the opinion inadequate as the examiner failed to consider the Veteran's 2012 annual training injury, where the Veteran attempted to catch a falling hand truck during annual training. A review of the November 2014 VA opinion is absent for any indication suggesting that the examiner considered this injury as a possible cause for the Veteran's current shoulder condition. Therefore, a remand is necessary to ensure that VA obtains an examination or medical opinion that adequately discusses whether the Veteran's current right shoulder condition is related to his service and/or in-service injury. 4. Entitlement to service connection for a right knee condition is remanded. The Veteran carries a current diagnosis of right knee traumatic arthralgias, which requires medication for swelling and pain management. Further, during the May 2021 Board hearing, the Veteran testified that his knee pain began during in 2004, when he jumped out of the back of a military vehicle. Further, he stated that the "wear and tear" of nearly 100 parachute jumps have impacted his knees. The Veteran has not been provided a VA examination for his right knee condition. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a right knee condition because no VA examiner has opined whether the Veteran's claimed right knee condition is at least as likely as not (50 percent or greater probability) occurred in or is otherwise etiologically related to the Veteran's military service. The matters are REMANDED for the following action: 1. Obtain and associate all pertinent VA medical records not yet associated with the Veteran's claims file. 2. Schedule the Veteran for a VA examination for his prostatitis. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is the Veteran's prostatitis at least as likely as not related to service including the same possible cause of service-connected hematuria and hemoglobinuria? (b.) Is the Veteran's prostatitis at least as likely as not caused by his service-connected hematuria and hemoglobinuria? (c.) Is it at least as likely as not that his service-connected hematuria and hemoglobinuria has caused a medically discernible increase of prostate disability/symptoms? In providing the requested opinions, the examiner is notified that the term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233 (2019). 3. Schedule the Veteran for a VA examination for his back conditions. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Are the Veteran's back conditions at least as likely as not related to service, including his 2012 annual training injury and the cumulative effects of his nearly 100 in-service parachute jumps as well as infantry duties carrying 120 pound rucksacks? 4. Schedule the Veteran for a VA examination for his right shoulder condition. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is the Veteran's right shoulder condition at least as likely as not related to service, including his including his 2012 annual training injury, which required corrective surgery? In so doing, the examiner should accept as true a history of right shoulder injury in 1993 treated by a field medic and consider the potential effects of this injury. See Hearing Transcript dated May 2021. 5. Schedule the Veteran for a VA examination for his right knee condition. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is the Veteran's right knee condition at least as likely as not related to service, including the cumulative effects of his nearly 100 in-service parachute jumps as well as infantry duties carrying 120 pound rucksacks in addition to the 2004 knee injury, which occurred while jumping out of a military vehicle? The examiners must provide all findings, along with a complete rationale for his or her opinion(s) in the examination reports. The examiners are advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. (continued on the next page) 6. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.