Citation Nr: 21005409 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 19-23 748 DATE: February 1, 2021 ISSUES 1. Entitlement to service connection for kidney disease. 2. Entitlement to service connection for obstructive uropathy, claimed as chronic urinary tract infection (UTI). ORDER Entitlement to service connection for kidney disease is denied. Entitlement to service connection for obstructive uropathy, claimed as chronic UTI is denied. FINDINGS OF FACT 1. Kidney disease was not shown in service or for many years thereafter, and has not been shown to be related to service.  2. Obstructive uropathy, claimed as chronic UTI  was not shown in service or for many years thereafter, and has not been shown to be related to service.  CONCLUSIONS OF LAW 1. The criteria for service connection for kidney disease have not been met.  38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2017).  2. The criteria for service connection for obstructive uropathy, claimed as chronic UTI have not been met.  38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2017).  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1956 to August 1960. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration Regional Office (RO). Jurisdiction was transferred to the RO in Los Angeles, California. When this case was most recently before the Board in October 2020, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).  The Board has reviewed all of the evidence in the Veteran’s claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).  Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).  In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).  Certain chronic diseases may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty.  38 C.F.R. § 3.309.  However, the disabilities on appeal are not included under 38 C.F.R. § 3.309.  Therefore, service connection on a presumptive basis is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  When positive and negative evidence approximately balance regarding the merits of an issue material to determining the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b).  The Veteran seeks service connection for kidney disease and obstructive uropathy, claimed as chronic UTI, to include as due to conceded asbestos exposure in service. VA treatment records show diagnoses to include kidney disease and obstructive uropathy. Service treatment records show an April 1956 assessment of urethritis, acute, of gonococcal origin. Moreover, the Veteran’s exposure to asbestos in service has been conceded. Therefore, Hickson elements (1) and (2) are met.  The Veteran was afforded a VA-contracted examination in April 2018 in which the examiner diagnosed obstructive uropathy and stated that VA medical records in 2015 indicated that he had a transurethral resection of the prostate (TURP) and later on developed chronic urinary retention from atonic bladder requiring bethanecol treatments. The examiner stated that the treatment for urethritis while in service resolved, requiring treatment with antibiotics for a week. The examiner stated that what caused the chronic UTI was due to bladder atony after the TURP in 2015. The examiner stated that the chronic kidney infections did not start as a result of an episode of urethritis while in service; it was due to bladder atony causing an ascending UTI and hydronephrosis. The Veteran was afforded VA-contracted examinations in April 2020 in which the examiner opined that the obstructive uropathy, claimed as chronic UTIs, was less likely than not manifested during, or otherwise caused by, active duty service or any incident therein, to include the diagnosis of urethritis, acute due to gonococcus, in April 1958. The examiner also opined that it was less likely than not the Veteran’s kidney disease was manifested during, or otherwise caused by, active duty service or any incident therein, to include the diagnosis of urethritis, acute due to gonococcus, in April 1958. The Veteran asserted in October 2020 that his claimed kidney disease and obstructive uropathy, claimed as chronic UTI, were associated with asbestos exposure due to his service. The Veteran identified an Internet article that he claimed supported his assertions. As such, the Board remanded this case in October 2020 for an addendum VA opinion. In response to the Board’s remand, addendum VA-contracted opinions were obtained in November 2020 in which the examiner stated that it is less likely than not that the obstructive uropathy condition was incurred in or caused by military service. The examiner stated that there was no documentation of urinary obstruction or symptoms consistent with such a condition in the medical service records. The examiner stated that it was important to point that the Veteran had a well-documented history of benign prostatic hypertrophy (BPH); the BPH was so severe that no less than three transurethral resections of the prostate were undertaken. The examiner stated that the urethra travels through the prostate, and hypertrophy of it can lead to blockage of urine flow otherwise referred to as obstructive uropathy. The examiner stated that there was no study that he was aware of that has shown that asbestos exposure (which was conceded to occur in service) can result in anatomic deformity anywhere along the urinary tract such that obstruction may result; even if it could, there would be little evidence that the relative risk of the hypothetical urethral obstruction due to asbestos exposure would be greater than the relative risk of developing it from his BPH. The November 2020 examiner furthered that the article cited in October 2020 was an article written by a non-medical professional discussing asbestos and kidney cancer; this article did not discuss asbestos as it relates to chronic kidney disease (CKD) or urinary obstruction. The examiner stated that another article discussed an increased risk of epithelial-type kidney cancers with those exposed to asbestos; it did not make any causal assertion between CKD or urinary obstruction. The examiner stated that neither of these citations addressed the fundamental need to reveal a study showing either that asbestos exposure was a direct causal agent in kidney disease or urinary obstruction or that it was an independent risk factor in their development to support service connection. The examiner stated that the Veteran’s recent recurrent UTIs were likely due to urinary retention from his BPH as well as a number of incidents of Foley catheter usage to address it which was a known foci of infection. The examiner noted that the Veteran had painful urination in service secondary to gonorrhea; this was treated with Penicillin with no evidence of chronic sequelae. The November 2020 examiner also opined that it was less likely than not that the Veteran’s current chronic kidney disease (CKD was incurred in or caused by his military service. The examiner stated that there was no documentation of a CKD diagnosis or symptoms consistent with such a condition in the medical service records; without actual documentation of such findings in his service records, no objective association could be made with the present diagnosis. The examiner stated that well known causes of CKD include diabetes, high blood pressure, glomerulonephritis, and polycystic kidney disease. The examiner noted that the Veteran had hypertension, a long-standing history of BPH with obstruction, and in at least one instance it was documented that the obstruction of urine due to BPH backed up into the kidneys damaging them (otherwise known as hydronephrosis). The examiner noted that another factor known to result in diminishing kidney function was age, and the Veteran was presently 82 years old. The examiner opined that there was little to dispute that the present CKD was the result of the Veteran’s age, hypertension, and hydronephrosis from BPH urinary obstruction. The examiner stated that there was no study that he was aware of that has shown that asbestos exposure (which was conceded to occur in service) can result in CKD; even if it could, there would be little evidence that the relative risk of the hypothetical CKD due to asbestos exposure would be greater than the relative risk of developing CKD from his hypertension, hydronephrosis, and advancing age. The November 2020 examiner stated that the article cited in October 2020 was an article written by a non-medical professional discussing asbestos and kidney cancer; this article did not discuss asbestos as related to CKD or urinary obstruction. The other article cited in October 2020 discussed an increased risk of epithelial type kidney cancers with those exposed to asbestos; it did not make any causal assertion between CKD or urinary obstruction. The examiner stated that neither of these citations addressed the fundamental need to reveal a study showing either that asbestos exposure was a direct causal agent in kidney disease or urinary obstruction or that it was an independent risk factor in their development to support service connection. In this case, the Board finds the November 2020 opinions to be of great probative value. Indeed, the examiner considered the Veteran’s symptoms, the claims file, and clinical medical evidence before providing negative etiological opinions. To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012).  The Board finds that the examiner made it clear that it was his opinion that the Veteran’s kidney disease and  obstructive uropathy, claimed as chronic UTI were not related to service, to include asbestos exposure.  Here, the examiner made it clear that a nexus was not established.  Accordingly, the Board concludes that the VA opinions carries significant weight.  No other competent opinion providing a positive nexus between service and the Veteran’s kidney disease and obstructive uropathy, claimed as chronic UTI  has been presented.  The Board finds the VA examiners’ opinions are competent and probative as they were rendered after review of the Veteran’s history and consideration of medical principles by licensed medical professionals.  Therefore, a nexus between service and the Veteran’s  kidney disease and obstructive uropathy, claimed as chronic UTI, and service cannot be established, and the criteria of Hickson element (3) are not met.  The Board has also reviewed the Internet articles submitted by the Veteran along with his contentions. Normally, medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). The Board has considered and weighed such evidence, but finds that the articles are less probative than the specific medical opinions outlined above. The general articles do not address the facts that are specific to the Veteran’s case, and do not tend to establish a causal relationship between service and the Veteran’s disabilities. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his kidney disease and obstructive uropathy, claimed as chronic UTI are related to service.  Moreover, the Board acknowledges lay statements prepared on his behalf. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994).  In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014).  MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.