Citation Nr: 21021258 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-42 089 DATE: April 12, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a urinary tract condition is reopened. Entitlement to service connection for a urinary tract condition manifested by urine retention is granted. FINDINGS OF FACT 1. A November 2009 rating decision reconsidered and denied entitlement to service connection for a urinary tract condition on the basis that the evidence of record failed to show such disability was incurred in or aggravated by military service. 2. Since the November 2009 rating decision became final, evidence relating the urinary tract condition to the Veteran’s service has been received. This evidence relates to an unestablished fact necessary to substantiate the claim of service connection for a urinary tract condition, and it raises a reasonable possibility of substantiating such claim. 3. The evidence is in relative equipoise as to whether the Veteran’s urinary tract condition manifested by urinary retention began during or is otherwise related to his military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a urinary tract condition; thus, the Veteran’s petition to reopen his claim is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for a urinary tract condition manifested by urinary retention have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1974 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned in February 2020. New and Material Evidence Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “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 United States Court of Appeals for Veterans Claims (CAVC) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a “low” threshold and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). Despite any prior determination reached by the RO regarding the claims on appeal, under the legacy appeal system, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). An April 1977 rating decision denied service connection for a urinary tract condition because the Veteran failed to appear for a scheduled VA examination. A November 2009 rating decision denied service connection for a urinary tract condition based on a finding that the evidence of record failed to show such disability was incurred in or aggravated by military service. The Veteran did not perfect an appeal or submit new and material evidence within one year of either determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. As previously noted, a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran submitted a petition to reopen his claim in November 2011. The pertinent evidence of record in November 2009 included the Veteran’s service treatment records; VA treatment records dating from May 2009 to July 2009; and the Veteran’s lay statements. Evidence received since the November 2009 rating decision includes VA treatment records that show the Veteran complained of urinary retention in 1991 and April 1996. Notably, an October 1991 VA treatment record notes the Veteran has a history of urinary retention dating back to 1976. As these VA treatment records provide for the possibility that the Veteran’s urinary tract condition manifested during active duty service, the Board finds that the this new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a urinary tract condition, and raises a reasonable possibility of substantiating the claim. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for a urinary tract condition. The reopened claim will be addressed in the Service Connection section below. Entitlement to service connection for a urinary tract condition. The Veteran contends he has a urinary tract condition that manifested during active duty service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical 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) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A January 2013 VA examination report and VA treatment records show various urinary tract conditions that cause urinary retention have been diagnosed, including urethral stricture, bladder neck obstruction, an areflexic bladder, and urinary tract infections. The Veteran’s service treatment records, including a June 1976 separation examination report, show the Veteran had urinary tract infections and complained of urination difficulties. Therefore, the remaining question before the Board is whether the Veteran’s urinary tract condition began during, is caused by, or is otherwise etiologically related to his military service. The Board has reviewed the record and finds that there is evidence both for and against the claims. The evidence against the claim includes an August 1978 reenlistment examination report, which did not note a urinary tract disability, the January 2013 VA examination report, and a July 2017 addendum opinion. The January 2013 examiner noted a urinary tract infection was diagnosed in 2012 and urethral stricture was diagnosed in 1977. She opined the claimed condition was less likely than not incurred in service, explaining that there was no specific urethral trauma associated with the diagnoses and insufficient evidence in the service record to support the claim. In a July 2017 addendum opinion, a VA examiner opined the urethral stricture and urinary tract infections did not manifest in service. The examiner noted the service treatment records do not demonstrate any urethral trauma and showed that the urinary system issues he had during service were resolved by the June 1976 separation examination. The evidence in favor of the claim includes the Veteran’s service treatment records that show he complained of urination difficulties in service and his consistent reports that he’s experienced urine retention since that time. Notably, an August 1975 service treatment record shows the treating urologist noted there appeared to be some obstruction to his urine flow. In addition, he filed a claim for service connection for a urinary tract condition in December 1976. As noted, an October 1991 VA treatment record notes the Veteran complained of urinary retention that had lasted since service. A May 2009 VA treatment record notes the Veteran had urination difficulties and that a a surgical repair was attempted in 1982. The Veteran also indicated at the January 2013 VA examination and February 2020 Board hearing that he had experienced urination difficulties since service. The Board finds the evidence for and against finding the Veteran’s urinary tract condition manifested during service is of equal weight. Both VA examiners opined the disability did not manifest during service, but notably failed to address the urologist’s August 1975 note that indicates there seemed to be an obstruction to his urine flow. The July 2017 VA examiner noted there was no evidence that the Veteran developed issues with urinary retention during service. Accordingly, the examiners’ opinions are of limited probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding a medical opinion based on an inaccurate factual premise has no probative value). The Board acknowledges August 1978 reenlistment examination report is silent for a urinary tract condition, but the Board finds this evidence does not outweigh the Veteran’s consistent reports of experiencing urination difficulties since service. (Continued on the next page)   Importantly, the Veteran is competent to report he has experienced urinary retention since he developed urination difficulties during service, and the Board finds his statements are credible as they are supported by his available service treatment records and post-service treatment records as described above. 38 C.F.R. § 3.303; Walker, 708 F.3d 1331. The Board acknowledges that there are no supporting medical opinions specific to the claim, but the Veteran’s post-service treatment records show he consistently reported his urination difficulties began years earlier. These treatment records corroborate the Veteran’s assertion that he experienced ongoing urinary retention since service. The Board finds the evidence for and against the claim is in relative equipoise and therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, service connection for a urinary tract condition manifested by urinary retention is warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Skowronski, William 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.