Citation Nr: 21007954 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-37 487 DATE: February 11, 2021 ORDER Entitlement to service connection for chronic urinary tract infections is denied. REMANDED Entitlement to an initial compensable rating for residuals of stress fracture, left tibia is remanded. FINDING OF FACT The preponderance of the evidence is against finding that chronic urinary tract infections began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for chronic urinary tract infections are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from August 1982 to April 1991. The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge in February 2018. A transcript of the hearing has been associated with the record. It appears that there was some indication that the Veteran had been scheduled for another Board hearing. However, in January 2021, the Veteran expressly cancelled any additional hearing request. The Board has previously remanded these matters in May 2018 and February 2020. With respect to the issue decided herein, the Board also finds substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for chronic urinary tract infections The Veteran contends that his current chronic urinary tract infections (UTIs) manifested in service. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has had urinary tract infections during the course of the appeal and thus, has a current disability for VA purposes; and evidence shows that the Veteran had urinary tract infections in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of chronic urinary tract infections began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records show that the Veteran was treated for UTIs and pyelonephritis on several occasions from 1984 to 1989. A December 2009 CT scan of the abdomen found no evidence for urolithiasis, hydronephrosis or hydroureter, or perinephric fat stranding. Post-service treatment records show treatment for a UTI in July 2010, 19 years after the Veteran’s separation from service. Importantly, although at times claiming recurrent UTIs since service, in an August 2010 statement, the Veteran indicated that post-service, he was diagnosed with a UTI in July 2010, again many years after his separation of service. The Veteran had not pointed to any specific prior instances where he was diagnosed with a UTI. Accordingly, there is no evidence of pertinent symptomatology. While the Veteran is competent to report having experienced symptoms since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic disability. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board previously found that the January 2011 and February 2010 VA examinations with opinions were inadequate as they failed to consider all the relevant evidence. Importantly, after reviewing the claims file, the March 2020 VA examiner opined that the Veteran’s disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was during service, the urinary tract infections were acute only. The Veteran was treated in 1984 for UTI and pyelonephritis. These conditions resolved. In November 1985, the Veteran had a urinalysis which was normal. The Veteran had multiple urinalysis over the years with hematuria noted, which is not indicative of infection. The Veteran had a normal Abdominal CT scan in 2009. In 2010, the Veteran had a +urinalysis was treated with Levaquin. In December 2010, the Veteran had a cystoscopy by urologist, which was normal with the exception of enlarged lateral lobes of the prostate. In 2012, the Veteran was noted to have BPH with obstruction and placed on Hytrin. Each UTI in service was acute. There is no evidence that the UTI or pyelonephritis treated in service has continued over the years. A nexus has not been established. The Board recognizes that in a September 2020 statement, the Veteran asserted that the March 2020 VA opinion was inadequate because the examiner was identified as a physician’s assistant. In support of this argument, the Veteran cited to Nohr v. McDonald, 27 Vet. App. 124 (2014). However, the current case differs significantly from Nohr. First, the evidentiary standards are different between Nohr and this case. In Nohr, the question before the Board was whether a pre-existing disability had not been aggravated by active service. The evidentiary standard in that situation requires VA to demonstrate by clear and unmistakable evidence that the Veteran’s disability was not aggravated by active service. Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of “clear and unmistakable error” in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). In this case, since the Veteran’s disability did not pre-exist active service, the evidentiary standard is lower. The Board just needs to demonstrate that it is less likely than not that the Veteran’s disability was related to active service. Less likely than not means that the preponderance of the evidence is against the claim. Second, in Nohr, the VHA psychiatrist who gave the opinion, wrote that “[r]espectfully, while I recognize my personal limitation, the Board should seek for the next expert opinion if this examiner’s report still is not satisfied by the Board review.” In this case, the examiner never wrote that she was not qualified, or was inadequate, to perform the Veteran’s VA examination or give her opinion concerning the urinary tract infections. Third, in Nohr, as a result of the examiner’s statement, the Veteran submitted eleven questions and requested documents from the examiner to determine his medical competency, which the Board denied. In this case, the Veteran never submitted any questions or documents. Although the Veteran asserts that the examiner did not consider positive evidence, the examiner clearly reviewed the claims file and primarily based their opinion on finding that the incidents in service were acute. As discussed below, the evidence mentioned by the Veteran does not refute this finding. Finally, the prior Board remand never requested that the agency of original jurisdiction (AOJ) obtain an opinion from a specialist. The Board finds that the Veteran’s claim of inadequacy is too broad and sweeping and was not asserted with any specificity. The examiner was identified as Physician’s Assistant in General Practice. Importantly, the disability on appeal does not require a specialist to render such opinion. In turn, the Board finds that the examiner has the requisite medical knowledge and is competent to render such opinion. In sum, the Board finds that the March 2020 opinion is adequate because it is based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). As such, the Board finds that the opinion is of high probative value. The Board notes that the Veteran appears to rely on a March 2012 statement by Dr. H.A.R., which noted that the Veteran was experiencing recurrent UTIs and also noted the Veteran’s history of right pyelonephritis during his military service. The examiner noted that the Veteran had a long and tortuous urinary tract history of urinary tract infections. He indicated that he was unable to find any etiology of the current problems, which were right flank pain and difficulty emptying bladder. However, the examiner did not offer any sort of etiological opinion with rationale for the Veteran’s current UTIs or link them to the incidents in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the March 2020 VA examiner’s opinion. The Veteran believes his disability is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2020 VA opinion. In conclusion, based on the analysis above, a preponderance of the evidence is against the Veteran’s claim for service connection for chronic urinary tract infections. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to an initial compensable rating for residuals of stress fracture, left tibia, is remanded The Veteran’s residuals of stress fracture, left tibia, is rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5262 for impairment of the tibial and fibula. However, effective February 7, 2021, the rating criteria under this code were revised. The AOJ has not considered the revised regulations; therefore, this issue must be remanded in order to avoid prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The matters are REMANDED for the following action: Readjudicate the issue of entitlement to an initial compensable rating for residuals of stress fracture, left   tibia, under the new, revised Diagnosed Code 5262. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.