Citation Nr: 21006326 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 07-39 046 DATE: February 3, 2021 ORDER Entitlement to service connection for kidney problems, to include nephrolithiasis, microhematuria, and recurrent urinary tract infections is denied. Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disorder (GERD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that kidney problems, to include nephrolithiasis began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s pre-existing recurrent urinary tract infections was documented on entrance, and was not aggravated by her active service. 3. The Veteran’s microhematuria is not a disability for which service connection may be granted. 4. The preponderance of the evidence is against finding that a gastrointestinal disability, to include GERD began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for kidney problems, to include nephrolithiasis, microhematuria, and recurrent urinary tract infections have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria for service connection for a gastrointestinal disability, to include GERD have not been 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 had active duty service from March 1987 to November 1992. This matter comes to the Board of Veterans’ Appeals (Board) from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were remanded by the Board in September 2012, August 2018, and October 2019. Service Connection 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). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304 (b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b). 1. Entitlement to service connection for kidney problems, to include nephrolithiasis, microhematuria, and recurrent urinary tract infections is denied. The Veteran seek service connection for kidney stones, hematuria, urinary tract infections, and other nephrotic disabilities. The Veteran asserts that the disabilities had onset in service and continued thereafter. See December 2008 decision review officer hearing; June 2006 VA 21-526. Specifically, the Veteran indicates that her urinary tract infections and abnormal urinalysis with showing of hematuria in service were symptoms of her later diagnosed conditions. At entrance examination in April 1984, the Veteran was noted have a normal genitourinary system. However, the summary of defects and diagnosis noted urine positive for protein. The April 1986 report of medical history noted frequent and painful urination. The Veteran was also noted to have bladder infection in the past. During service, the Veteran’s treatment records indicate multiple urinary tract infections. See e.g. service treatment records from April 1988, June 1988, and September 1989. Laboratory testing also showed blood in urinalysis several times during service. See e.g. service treatment records from September 1989, February 1990, February 1991, and March 1991. At separation, the Veteran was noted have a normal genitourinary system and the summary of defects and diagnoses noted abnormal urine results NCD (not considered disabling). Post-service, the Veteran was noted to have moderate blood in urinalysis in August 1998. The Veteran was treated for left renal lithiasis in January 2005 with CT of the abdomen showing left renal cortical calcification and mild scarring. The impression was atypical pyelonephritis presentation, nephrolithiasis left kidney, leukopenia presentation presumed related to early septic syndrome. See January 2005 private treatment records. The Veteran was treated and follow up in February 2005 showed no new symptoms, including pyelonephritis symptoms. The January 2006 pelvis CT scan showed left renal calculus with adjacent renal parenchymal scarring consistent with old focal pyelonephritis. Similarly, May 2007 abdomen and pelvis CT scan showed no obstructing urolithiasis, and focal area scarring with adjacent calcification in the left kidney most reflective for old focal pyelonephritis. In July 2008 VA treatment records, the Veteran was diagnosed with nephrolithiasis and microscopic hematuria with renal pelvis abnormality, possibly medullary sponge kidney, and a questionable history of papillary necrosis. Although the Veteran was seen with occasional urinary tract infections, to include in June 2012 treatment records, the December 2019 CT showed stable nonobstructing left nephrolithiasis with overlying cortical scarring. During the pendency of the appeal, the Veteran’s treatment records show a current disability. Of note, the Veteran was diagnosed with recurrent urinary tract infections and a history of nephrolithiasis. See VA treatment records from December 2007 and June 2012. Testing has also shown scarring, and blood in the urine or hematuria. In this case, there are multiple opinions on the etiology and nature of the Veteran’s claimed disabilities. In a November 2006 VA examination for digestive conditions, the VA examiner indicated that the Veteran may have developed nephrolithiasis while in service based on multiple episodes of hematuria in service. The examiner also noted that hematuria has multiple other causes such as urinary tract infections. In support of her claim, the Veteran submitted the May 2007 letter from her treating clinician, Dr. Alcorn. In the letter, Dr. Alcorn indicated that the Veteran almost certainly had onset of renal lithiasis during service. The clinician noted that the Veteran had the beginning of kidney stones in service. In support, Dr. Alcorn noted that the Veteran had episodic hematuria and albumin in her urine early in life. In the July 2013 VA examinations report, the examiner noted diagnoses of nephrolithiasis, recurrent urinary tract infections, benign microscopic hematuria, and post-infectious parenchymal scarring in the left kidney periphery. The examiner provided a negative etiology opinion as to recurrent urinary tract infections and reasoned that there was no showing in service of a chronic disability as there were only a few acute and transitory episodes. The examiner opined that the Veteran’s pyelonephritis and nephritis are not related to service. Of note, the medical evidence does not show the Veteran has onset of pyelonephritis/ nephritis on active duty or within one year of separation. The examiner further indicated that the Veteran’s left pyelonephritis in 2005 was an acute and transitory infection. Moreover, there is no current pyelonephritis or nephritis. The examiner further noted that the Veteran’s microhematuria is unlikely to have caused symptoms in the kidney and likely is asymptomatic. Although the Veteran had hematuria in service, the genitourinary evaluation did not reveal kidney stones were the cause of hematuria. It is also unlikely that the Veteran’s left kidney scarring is anything other than a small finding which appears on studies. Finally, the examiner noted that scarring occurred after service and is likely related to the 2005 kidney infection. Ultimately, the examiner concluded that the medical evidence did not indicate that the Veteran’s active service aggravated her kidney condition. In an August 2015 VA examination report, the examiner provided a negative opinion on the Veteran’s claimed conditions. Notably, the examiner indicated that the Veteran’s pre-existing recurrent urinary tract infections were not aggravated in service. In support, the examiner noted that the Veteran’s in-service urinary tract infections were treated without incident and there were no obvious negative sequelae in terms of her genitourinary system. As to the Veteran’s diagnoses related to pyelonephritis and kidney stones, the examiner opined that the conditions were not connected to service. In support, the examiner indicated the Veteran’s symptoms did not manifest for many years after service and her current clinical presentation does not support any kidney pathology or a chronic kidney disease. Pursuant to the Board’s most recent remand, the Veteran was afforded another examination in January 2020. The examiner noted diagnoses of nephrolithiasis, and recurrent urinary tract infections. The examiner noted that microhematuria is a symptom of chronic urinary tract infections. However, the examiner noted that the urinary tract infections pre-existed service. The Veteran’s nephrolithiasis was not diagnosed for many after service. Accordingly, a nexus to any current diagnosis was not established. Upon review, the Board finds that service connection is not warranted. Initially, the Board finds the presumption of soundness does not apply as to urinary tract infections. Of note, the Veteran’s April 1984 entrance examination reports indicate urinology testing revealed urine positive for protein in the summary of defects and diagnosis. In addition, in the April 1984 report medical history, the Veteran endorsed having had frequent painful urination. The Veteran also reported bladder infections and painful urination. During service, the Veteran’s treatment records indicate she had multiple urinary tract infections. As such, the presumption of sound condition at entrance does not apply to this condition. 38 C.F.R. § 3.304 (b). As a pre-existing disability was noted on entrance, the remaining question is whether the Veteran’s urinary tract infections was aggravated by her service. On this question, the Board finds the July 2013, August 2015, and January 2020 VA examinations competent and probative evidence. The VA examiners have the appropriate training, expertise and knowledge to evaluate the claimed disability. Each VA examiner provided a thorough and cogent rationale for their findings and opinions, which included consideration of the Veteran’s reported symptoms both during and after service, and the post-service clinical history. Furthermore, the examiner also reviewed the entire claims file. As to the Veteran’s other kidney conditions, to include pyelonephritis, kidney stones, nephrolithiasis, and renal lithiasis, the Board finds the July 2013, August 2015, and January 2020 VA opinions are competent and probative evidence against the claim. As noted, each examiner is competent to opine on the matter. Each examiner also supported their negative opinions with a well-reasoned rationale. This included consideration of the Veteran’s extensive service and post-service medical history. Ultimately, none of the VA examiners could establish a causal relationship between the symptoms and diagnoses in service and the post-service diagnoses. Instead, the examiners noted that the Veteran’s abnormal urinalysis were indicative of many things and could not be tied to her current disability without more. In addition, the examiners determined that the Veteran’s symptoms in service resolved without sequela. The examiners also determined that the Veteran’s kidney condition was not diagnosed until many years after separation from service. There are no competent and equally probative opinions to the contrary. In particular, the Board notes the November 2006 VA examination report and the May 2007 letter from Dr. Alcorn. Although the November 2006 VA examiner noted that the Veteran may have been developing the nephrolithiasis while in service due to the occurrences of hematuria, the examiner does little more than suggest a possibility of a relationship. In generally, such speculative language does not create an adequate nexus for the purposes of establishing service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993)(opinions that are speculative, general, or inconclusive in nature cannot support a claim). Moreover, the May 2007 letter from Dr. Alcorn indicated that the Veteran’s renal lithiasis almost certainly began during service but did not sufficiently address how this is so. Although Dr. Alcorn indicated the Veteran experienced hematuria and albumin, the clinician did not indicate what about these abnormal lab results link renal lithiasis to service. Comparatively, the VA opinions provided an exhaustive review of the symptoms, abnormal lab results and diagnosis in service. Thus, the private opinion is less probative. In sum, these two opinions provide limited probative evidence in support of the Veteran’s claim. The Board is cognizant that the Veteran and other lay individuals have related her conditions to service. Further, the Veteran’s representative urges that her kidney stones represent an aggravation of her pre-existing bladder or urinary tract infections. See October 2020 appellate brief. The Veteran is competent to discuss symptoms she experienced in service and post-service, as this is observable through the five senses. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, the etiology and progression of kidney disease are complex medical questions involving a condition that primarily manifested with internal changes and requires specialized diagnostic testing such as CT scans. These medical questions cannot be considered within the competence of a lay witness, and the evidence does not show that any of the lay statements are authored by individuals with a background in medicine or a related field, such that it can be recognized as being based upon medical expertise. Thus, the Board accords more probative weight to the July 2013, August 2015, and January 2020 VA medical opinions. Finally, the Board notes that the evidence of record establishes that the Veteran’s microhematuria is an abnormal laboratory finding, and not a “disability” for which service connection may be granted. A symptom (to include abnormal laboratory study or pain), without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a “disability” for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Here, the July 2013 and August 2015 VA examination reports have noted that the Veteran’s chronic hematuria is benign, or that the Veteran’s symptoms cannot be attributed to her hematuria. Ultimately, as the weight of the competent and probative evidence is against the Veteran’s claim. The Board has considered the applicability of the benefit of the doubt doctrine; however, that doctrine is not applicable. Service connection is not warranted. 2. Entitlement to service connection for gastrointestinal disability, to include GERD is denied. The Veteran seeks service connection for a gastrointestinal disability that began in service with unexplained weight loss, bouts of diarrhea, nausea and gastrointestinal issues. See December 2008 decision review officer hearing. During service, the Veteran had complaints, treatment, and diagnoses related to gastrointestinal conditions. Notably, the Veteran reported nausea, and diarrhea in August 1989 service treatment records and was diagnosed with acute gastroenteritis. The Veteran was again diagnosed with gastroenteritis in April 1990, viral syndrome gastroenteritis in December 1990, acute gastroenteritis in May 1991, and gastritis with a rule out diagnosis of peptic ulcer disease and pregnancy in November 1991. In the September 1992 report of medical history, the Veteran checked “yes” to having had stomach, liver, or intestinal trouble. The September 1992 separation examination shows that the Veteran had all normal clinical evaluations. Post-service, the Veteran was diagnosed with peptic gastritis in January 2005 private treatment record. The Veteran also reported prior medication with an assessment of abdominal discomfort in December 2007. In July 2008 VA treatment note related to mental health, the Veteran was noted to have been recently diagnosed with GERD and increased her medication to treat the condition. See also July 2008 VA treatment record. The Veteran was afforded a VA examination for miscellaneous digestive conditions in November 2006. The Veteran reported onset in 1991 (during service), while in Spain and a post-service January 2005 diagnosis of gastritis. The Veteran noted that she was currently being treated with Reglan and Prevacid. The examiner gave a diagnosis of gastritis per medical records but did not opine on the etiology of that diagnosis. Pursuant to the Board’s September 2012 Remand, the Veteran was afforded another examination for stomach and duodenal conditions, esophageal conditions, and intestinal conditions. The July 2013 examiner noted a diagnosis of GERD. The examiner also noted a diagnosis of chronic diarrhea but indicated that there was no evidence of current existence and any episodes were acute, transitory or self-limiting. As to GERD, the Veteran reported that she was treated for her gastrointestinal symptoms of vomiting and diarrhea in service and prior medication for the condition. The examiner reviewed the Veteran’s service treatment records and noted multiple diagnoses of gastroenteritis and complaints of stomach/intestinal trouble. The examiner also noted treatment records showed the Veteran was occasionally noncompliant with medication due to cost. The examiner opined that the Veteran’s GERD was less likely than not related to the Veteran’s active military service. The examiner reasoned that the Veteran had a few episodes of gastroenteritis in service which were likely viral, but all of these episodes were shown to be acute, transitory and self-limiting. Moreover, the examiner noted that this represents a different problem and diagnosis than the Veteran’s current GERD. In fact, the Veteran’s GERD was not shown to be chronic in service and had onset many years after service. In August 2015 VA examination for esophageal, stomach and duodenal, and intestinal conditions, the examiner undertook exhaustive review of the Veteran’s service and post-service treatment records. This included review of testing and imaging with abdomen CT scans negative for esophagus/ stomach/ duodenum or bowel pathology. Further, the examiner noted a May 2008 upper endoscopy with biopsy and a March 2012 EGD which showed no small bowel overgrowth, normal mucosa, and otherwise normal. The Board notes the examined reviewed the July 2013 VA examination and noted the Veteran’s report of current symptoms. In the August 2015 medical opinion accompanying the examination, the examiner indicated that the Veteran’s clinically presents with GERD type symptoms. However, the examiner negatively opined as to the etiology of GERD or any lower gastrointestinal condition with service. Notably, the examiner indicated that the Veteran’s in-service gastroenteritis appeared to have resolved, and the diagnosis of GERD was not made until many years after service. In addition, the Veteran had multiple EGDs and CT scans that did not fully support an esophageal pathology. The examiner further indicated that some of the Veteran’s symptoms could be irritable bowel syndrome (IBS), but the diagnosis could not be rendered at present (without a colonoscopy) and any diagnosis would be unrelated to service given that the Veteran’s gastrointestinal symptoms in service were tied to a condition which resolved, and any IBS diagnosis would not be made until many years after service. The October 2019 Board Remand, erroneously, indicated that the August 2015 VA examiner found that the Veteran did not have a GERD diagnosis and did not reconcile the negative findings with the prior examination reports. Pursuant to the October 2019 Remand, VA obtained a January 2020 addendum opinion. The examiner noted a diagnosis of GERD in 2008, many years after service. The examiner noted insufficient evidence of record for chronic complaints of GERD prior to that period and that the Veteran’s EGD was inconsistent with cellular inflammation or cellular changes of the esophagus characteristic of chronic, long term contact with stomach acid from a reflux condition that had onset in service and continued thereafter. The question for the Board is whether the Veteran’s current disability, to include GERD, began during service or is at least as likely as not related to an in-service injury, event, or disease. Upon review of the evidence, the concludes that preponderance of the evidence weighs against the claim. In this matter, the Board finds the July 2013, August 2015 and January 2020 VA opinions probative evidence, individually and collectively, on the question. Each examination report reflected consideration of the Veteran’s reported symptoms both during and after service, and the post-service clinical history. The opinions indicated that the Veteran’s symptoms and various diagnoses in service resolved. The examiner further indicated that the clinical presentation, to include results on EGD, endoscopy, and CT scans, did not support a chronic disease which had an etiological relationship to service. In addition, the January 2020 VA examiner noted that the EGD did not show the physical changes which would be consistent with the condition having onset in service and continuing for the decades since service. The Board finds that the rationale underlying each opinion was thorough and cogent. Finally, the VA opinions are competent evidence on the matter. Each VA examiner is a medical professional, with the required knowledge of internal gastrointestinal process, the interaction between multiple organ systems in the body, and interpretation of complicated diagnostic medical testing. Thus, the examiners are competent to opine on the matter. These factors render the VA opinions highly probative evidence. The Board’s current finding as to the probative value of the August 2015 VA examination reports is not inconsistent with the prior October 2019 Board remand. Of note, while the October 2019 Board remand erroneously characterized the findings of the August 2015 VA examination report and remanded the claim for further development, the Board did not state that this opinion was inadequate. Further, any inadequacy would be based on an erroneous reading of the opinion. Thus, the Board is not barred from making such the credibility determination above. Moreover, the Board finds that the VA opinions are the only competent evidence of record. The Veteran has submitted lay evidence in this case, to include her own statements and the December 2008 statement of her sister. While lay evidence is competent to report gastrointestinal symptoms the Veteran has experienced during and since service, it is not competent to opine on the etiology of those symptoms, render a diagnosis based on those symptoms, or to opine that diagnoses in service are related to the Veteran’s current diagnosis. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s opinions. In sum, the evidence weighs against a nexus between the Veteran’s current gastrointestinal disability, to include GERD, and service. While the Board has considered the applicability of the benefit of the doubt doctrine, the doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection for a gastrointestinal disability is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.