Citation Nr: 21070868 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 18-37 810 DATE: November 26, 2021 ORDER Entitlement to a rating in excess of 30 percent for service-connected urethral stricture prior to July 26, 2021 is denied. Entitlement to a rating in excess of 40 percent for service-connected urethral stricture from July 26, 2021 is denied. New and material evidence having been received, the claim for service connection for esophageal acid reflux is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for esophageal acid reflux is remanded. FINDINGS OF FACT 1. The Veteran's urethral stricture is manifest by symptoms consistent with the 30 percent rating criteria, but no higher, prior to July 26, 2021. 2. The Veteran's urethral stricture is manifest by symptoms consistent with the 40 percent rating criteria, but no higher, after July 26, 2021. 3. An April 2008 rating decision denied service connection for esophageal acid reflux. The Veteran did not timely appeal the rating decision and new and material evidence was not submitted within one year of notice of the rating decision. 4. Evidence received since the April 2008 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for esophageal acid reflux and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for urethral stricture prior to July 26, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.115b, Diagnostic Code 7518, 2. The criteria for a rating in excess of 40 percent for urethral stricture after July 26, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.115b, Diagnostic Code 7518. 3. The April 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 4. Evidence received since the April 2008 rating decision is new and material and the claim for entitlement to service connection for esophageal acid reflux is reopened. 38 U.S.C. § 5018; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from September 1985 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a July 2021 videoconference hearing, and a transcript of this hearing has been associated with the claims file. During the pendency of this claim, the RO issued a September 2021 rating decision granting an evaluation of 40 percent for the Veteran's urethral stricture, effective July 26, 2021. However, because this is not a full grant of the issue on appeal, the Board will consider this claim. 1. Entitlement to a rating in excess of 30 percent for service-connected urethral stricture prior to July 26, 2021 is denied. 2. Entitlement to a rating in excess of 40 percent for service-connected urethral stricture from July 26, 2021 is denied. When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran is rated at 30 percent prior to July 26, 2021, and at 40 percent after July 26, 2021 for urethral stricture. He is rated under Diagnostic Code 7518, which is evaluated under the General Rating Formula for the genitourinary system and directs that the disorder should be rated as voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7518. Voiding dysfunction is rated as urine leakage, frequency, or obstructed voiding. Urine leakage that requires the wearing of absorbent materials which must be changed less than two times per day warrants a 20 percent rating. A 40 percent rating is warranted where the wearing of absorbent materials which must be changed two to four times per day is required. A 60 percent rating is warranted where the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day is required. 38 C.F.R. § 4.115a. Urinary frequency is rated at 20 percent where there is a daytime voiding interval between one and two hours or awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval less than one hour or awakening to void five or more times per night. Id. Obstructed voiding is rated at 30 percent for urinary retention requiring intermittent or continuous catheterization. A 40 percent rating is warranted for a daytime voiding interval of less than one hour or awakening to void four or more times per night, or for a disorder requiring the wearing of absorbent materials which must be changed two to four times per day. Id. The Veteran's 30 percent rating prior to July 26, 2021 was assigned based on urinary retention requiring intermittent catheterization. His 40 percent rating from July 26, 2021 was assigned based on daytime voiding interval of less than one hour. The Veteran underwent VA examinations in January 2017 and September 2021. During the January 2017 examination, the examiner noted the Veteran had surgery to correct his condition, and he had to have two additional procedures. However, even after these procedures, he was told that he still has a mild stricture. He has not had any procedure since the 1990s. The Veteran reported he urinates frequently with small amounts of urine and has ongoing suprapubic pain. He takes medication twice daily for his condition. The examiner noted the Veteran had the following: no requirement of wearing absorbent materials; daytime voiding interval between 1 and 2 hours; nighttime awakening to void two times; marked hesitancy; marked slow stream; marked weak stream; marked decreased force of stream; and stricture disease requiring dilation, although the Veteran has not had dilation since the 1990s. The Veteran does have a small surgical scar, but there is no pain or instability. During the September 2021 examination, the examiner noted the condition had stayed the same since its onset. The Veteran reported his current symptoms included frequent and urgent urination, incontinence, straining to urinate, and failing to completely empty his bladder. His symptoms are daily and sometimes worse, and he has had to repeat the urethral procedure over the years. The examiner noted the Veteran had the following: no leakage due to the voiding dysfunction; no required use of an appliance; daytime voiding intervals less than one hour; nighttime awakening to void three to four times; unmarked hesitancy; unmarked slow stream; unmarked weakened stream; unmarked decreased force of stream; and requires dilation every five years. The Veteran has a small scar that is not painful nor unstable. During the July 2021 hearing, the Veteran testified that he uses the bathroom at least nine to ten times a day, with the frequency of daytime versus nighttime bathroom usage varying based on how much water he drinks throughout the day. He also explained that his doctor told him he needed to try to drink between a half-gallon and a gallon of water each day. The Veteran explained that he has been trying to follow his doctor's advice, but this makes him have to urinate very frequently; over one weekend, the Veteran said he urinated 48 times because he was drinking so much water. Additionally, the Veteran stated he had a catheter during his hearing because he had surgery a few days prior. He was told by his doctors that he may need to have a catheter again at some point within the next two years to help manage his urethral stricture because the effects of the surgery were not guaranteed to last. After reviewing the record, the Board finds that the Veteran's symptoms did not rise to the level of a 40 percent rating or higher prior to July 26, 2021, or to the level of a 60 percent rating after July 26, 2021. As noted in the January 2017 VA examination, the Veteran did not require any absorbent materials, experienced daytime voiding interval between 1 and 2 hours, and experienced nighttime awakening to void two times a night. However, in order to fulfill the criteria for a 40 percent rating, the Veteran would either need to wear absorbent materials which must be changed two to four times per day or experience a daytime interval less than one hour or awakening to void five or more times per night. In order to meet the criteria for a 60 percent, the Veteran would need to require the use of an appliance or the wearing of absorbent material which must be changed more than four times per day. While the Veteran testified that he would wear two pairs of underwear to help with any potential leakage or other urinary issues throughout the day, there is no evidence of record that he is required to wear absorbent materials, let alone change these materials four or more times a day. Therefore, the Veteran's symptoms are more closely approximated by the 30 percent rating criteria prior to July 26, 2021. Additionally, the September 2021 VA examination shows the Veteran does not require absorbent materials, experienced daytime voiding intervals less than one hour, and experienced nighttime awakening to void three to four times a night. However, in order to fulfill the criteria for a 60 percent rating, the Veteran would need to require the use of an appliance or the wearing of absorbent material which must be changed more than four times per day. While the Veteran testified that he would wear two pairs of underwear to help with any potential leakage or other urinary issues throughout the day, there is no evidence of record that he is required to wear absorbent materials, let alone change these materials four or more times a day. Therefore, the Veteran's symptoms are more closely approximated by the 40 percent rating criteria after July 26, 2021. Accordingly, the Board finds that a rating in excess of 30 percent for urethral stricture prior to July 26, 2021 and a rating in excess of 40 percent for urethral stricture after July 26, 2021 is not warranted. 3. New and material evidence having been received, the claim for service connection for esophageal acid reflux is reopened; to this extent only, the claim is granted. Generally, a claim that has been denied in a final decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U. S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). The RO issued an original rating decision in April 2008 denying service connection because there was no evidence that the Veteran's esophageal acid reflux occurred during service or was caused by service. The Veteran did not timely file an appeal and this decision became final. In its March 2017 rating decision, the RO determined that the Veteran had submitted new and material evidence with respect to his esophageal acid reflux by submitting additional VA treatment records that discussed his symptoms. The Veteran also claimed these symptoms were due to exposure to contaminated water while at Camp Lejeune, and the RO conceded this exposure during his service. However, the RO found no indication of an association between his conceded contaminated water exposure and his esophageal acid reflux. During the July 2021 Board hearing, the Veteran testified about how he did not experience symptoms of esophageal acid reflux until he was at Camp Lejeune for a training school, and he explained that he experienced continuous symptoms since that point. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, as previously noted, the credibility of the new evidence is presumed. The Veteran has raised a new theory of entitlement for his esophageal acid reflux, exposure to contaminated water at Camp Lejeune, which provides an in-service event. Additionally, the Veteran has provided testimony that he began experiencing symptoms of esophageal acid reflux after his time at Camp Lejeune at his following permanent station. As such, the Board finds that the evidence is both new and relates to an unestablished fact necessary to substantiate the claim. Without yet addressing the probative value of this additional evidence, the Board acknowledges that the evidence satisfies the low threshold of new and material evidence required to reopen the claim. To this extend only, the appeal is granted, and the claim for service connection for esophageal acid reflux is reopened. REASONS FOR REMAND 1. Entitlement to service connection for esophageal acid reflux is remanded. Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Effective March 14, 2017, a Veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. For purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems. 38 C.F.R. § 3.307(a)(7). Service personnel records confirm that the Veteran served at Camp Lejeune during this time frame. The Veteran contends that his esophageal acid reflux is due to his exposure to contaminated water while stationed at Camp Lejeune for training school. The RO conceded that the Veteran met the time period requirements to qualify for the Camp Lejeune contaminated water presumption in its March 2017 rating decision. The Veteran has not received a VA examination for his esophageal acid reflux. The Board has considered whether it can remand to schedule an examination. When determining whether VA is required to provide a VA medical examination or a medical opinion, the following factors should be considered: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in-service, or evidence establishing certain chronic diseases were manifested during an applicable post-service presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The third factor has a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the Veteran has provided a diagnosis of esophageal acid reflux, and thus meets the first McLendon element. VA has conceded that the Veteran was stationed at Camp Lejeune during the presumptive period for at least 30 days, and thus the second element of McClendon is met. With respect to the third McLendon element, the Board finds that while the Veteran's esophageal acid reflux is not a presumed condition under 38 C.F.R. § 3.309(f), it is sufficient enough to raise the question of whether the Veteran's condition is due to his contaminated water exposure. Thus, the Board finds that the third McLendon element has been met. Lastly, the Board requires additional evidence before it can make a determination as to whether the Veteran's esophageal acid reflux is related to service. Therefore, the Board finds a VA examination is necessary to address this question. Accordingly, this matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a qualified examiner, to include via telehealth if an in-person examination is not feasible, to address the nature and etiology of the Veteran's esophageal acid reflux. The examiner is to address the following: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's esophageal acid reflux is due to his service, to include exposure to contaminated water while stationed at Camp Lejeune. The examiner is to note that absence of the Veteran's condition on the list of conditions eligible for presumptive service connection is not an acceptable rationale to deny service connection. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.