Citation Nr: 22017014 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-09 244 DATE: March 23, 2022 ORDER Entitlement to an initial compensable evaluation for chronic anemia is dismissed. Entitlement to service connection for a bladder disorder, diagnosed as diverticulosis of the bladder, as secondary to human immunodeficiency syndrome positive (HIV +) is granted. Entitlement to service connection for urinary tract infections as secondary to HIV + is granted. Entitlement to service connection for benign prostatic hypertrophy (BPH) (also claimed as enlarged prostate) as secondary to service-connected HIV+ is granted. REMANDED Entitlement to an increased rating in excess of 30 percent for HIV + is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During the August 17, 2021 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the issue of entitlement to an initial compensable evaluation for chronic anemia is requested. 2. The Veteran's bladder disorder, diagnosed as diverticulosis of the bladder, is attributable to his service-connected HIV+. 3. The Veteran's urinary tract infections disorder is attributable to his service-connected HIV +. 4. The Veteran's BPH is attributable to his service-connected HIV +. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to an initial compensable evaluation for chronic anemia by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria to establish entitlement to service connection for a bladder disorder, diagnosed as diverticulosis of the bladder, as proximately due to, or the result of, the Veteran's service-connected HIV + have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria to establish entitlement to service connection for urinary tract infections as proximately due to, or the result of, the Veteran's service-connected HIV + have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria to establish entitlement to service connection for BPH (also claimed as enlarged prostate) as proximately due to, or the result of, the Veteran's service-connected HIV + have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from October 1999 to April 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2021. A transcript from that proceeding is associated with the claims file. The Board notes that the Veteran was previously represented by the North Carolina Department of Military and Veterans Affairs. In a July 2021 statement that was copied to the Veteran, this Veterans Service Organization withdrew their representation; explaining that the Veteran now resided in a different state. The Board accepts this withdrawal and notes that the Veteran has not yet appointed a new representative. The Board also notes that in a December 2014 statement received in January 2015, the Veteran indicated that certain conditions, including his HIV disability, affected his personal and professional life, including his ability to function in the capacity of maintaining gainful employment. The Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is whether TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the Board has added this issue to the Veteran's appeal. 5. Entitlement to an initial compensable evaluation for chronic anemia. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. During the August 17, 2021 Board hearing, the Veteran explicitly withdrew his claim for entitlement to an initial compensable evaluation for chronic anemia; with full understanding that he would need to begin the process again if he desired to seek an increased rating and any benefits granted would be effective at a later date. In the present case, the Veteran has withdrawn his appeal of this issue and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Veteran's appeal of entitlement to an initial compensable evaluation for chronic anemia is dismissed. Service Connection 6. Entitlement to service connection for a bladder disorder, to include as secondary to service-connected HIV +. 7. Entitlement to service connection for chronic urinary tract infections, to include as secondary to HIV +. 8. Entitlement to service connection for an enlarged prostate, to include as secondary to HIV +. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). The record has raised the theory that the Veteran has a bladder disorder, urinary tract infections, and enlarged prostate that are secondary to his service-connected HIV +. The Board notes that the Veteran's service treatment records (STRs) are largely silent for any relevant complaints, treatment, or diagnoses. No pertinent abnormalities or complaints were noted in the October 1999 enlistment examination or Report of Medical History. On March 28, 2000, an emergency care and treatment STR noted that the Veteran complained of right-sided pain since that Sunday. The assessment was right side pain, rule out musculoskeletal. An associated March 28, 2000, emergency department (ED) nurse triage evaluation stated that the Veteran's chief complaint was side pains for 2 days that were localized to the right side. The Veteran was discharged from the ED with instructions. A March 29, 2000, STR later stated that the Veteran presented for follow up after being seen in the ED the previous day. The Veteran reported that he gave a urine sample to rule out stones. The provider indicated in the assessment that they would await the results from the urine sample and noted questionable urinary tract infection versus musculoskeletal pain. The assessment also indicated that constipation was a possible cause. The provider planned to e-mail urology to determine if it was their opinion that the Veteran had a urinary tract infection. The March 29, 2000, urinalysis findings noted a few rare bacteria. The bacteriology result from the urine culture test showed no growth after 48 hours. On April 12, 2000, an STR noted that the Veteran was there for a follow up of his abdominal pain. The pain was constipation versus musculoskeletal, and the Veteran reported that the abdominal pain was 100 percent resolved. He also reported having a lot of stool for two days. The assessment stated that the Veteran had resolved abdominal pain that was probably secondary to constipation. The assessment also stated that the Veteran had a urinalysis with rare bacteria, but the culture test was negative after two days. The provider indicated that she had discussed the findings with urology, and they were not concerned. A plan was made to repeat the urinalysis. No abnormal findings were indicated in the associated April 12, 2000, urinalysis results. In addition, no relevant defects or reported problems were documented in the subsequent March 2001 separation examination and Report of Medical History. After service, a November 2014 VA treatment record noted that the Veteran presented as a consultation for continued urologic care after relocating to the area from San Francisco, California. The Veteran was previously scheduled for a diverticulectomy and transurethral incision of the prostate (TUIP) until the procedure was cancelled due to anemia. The Veteran also reported having recurrent urinary tract infections, with the last infection occurring in May or June of 2014. A cystoscopy and CT scan showed an enlarged prostate. The urology problem list noted BPH, not on medical therapy; and bladder diverticulum, large, posterior lateral wall. The assessment noted that the Veteran had BPH at an early age, incomplete voiding, who was found to have large posterior wall bladder diverticulum, enlarged prostate along with a large, trabeculated bladder when worked up in California. The assessment added that he was inadequately emptying his bladder, and the plan included starting terazosin medication. A subsequent active outpatient medication list in a December 2014 VA treatment record indicated that the terazosin was prescribed to address urine flow, enlarged prostate. Also in December 2014, a VA treatment record noted that the Veteran reported a history of longstanding urologic issues that included lower urinary tract symptoms, BPH, and bladder diverticulum. He had an indwelling catheter and was scheduled for a urology appointment for catheter removal. In January 2015, a VA urology outpatient office cystoscopy note stated that the Veteran presented to the cystoscopy clinic for further evaluation and management for voiding dysfunction. His urologic history in San Francisco was significant for lower urinary tract symptoms. The workup revealed a large posterior diverticulum that was likely secondary to bladder outlet obstruction. He was initially found to have diverticulum in 2007, and the reports indicated it had since grown in size. The provider noted that the Veteran did have a history of recurrent urinary tract infections, but added that these infections were usually temporally related to intercourse. The Board notes that the provider did not, however, provide a specific opinion that this was the cause of the Veteran's urinary tract infections. Under the assessment, the provider noted that the Veteran had a history of lower urinary tract symptoms and questioned why he had multiple bladder diverticula. The provider noted that although the Veteran could have congenital diverticula, this possibility was less likely given his uroflow pattern and increase in size since 2007. The Board notes that the provider did not specifically opine that the Veteran's bladder diverticula were actually congenital. The provider added that the examination was not suggestive of an enlarged prostate, but the Veteran was likely to have dysfunctional voiding. The first step would be to biopsy the suspicious lesions in his diverticula before addressing the underlying voiding dysfunction. The examiner planned to start Tamsulosin and to schedule a cystoscopy, bladder/diverticular biopsy. The Board notes that despite the provider's remarks regarding the presence of an enlarged prostate, the January 2015 record included the findings from a flexible cystoscopy which noted that the prostate showed bilateral hypertrophy. In addition, a separate January 2015 pharmacy consultation note from this date stated that the Veteran had BPH, bladder outlet obstruction; and he was therefore approved for the use of tamsulosin. A subsequent January 2015 VA treatment record noted under health maintenance that Veteran underwent a cystoscopy in January 2015 in relation to his lower urinary tract symptoms/BPH/bladder diverticulum (lateral bladder). The Veteran was afforded VA examinations in connection with his claims in May 2015. The examiner documented a diagnosis of BPH in a male reproductive conditions Disability Benefits Questionnaire (DBQ). The examiner noted that the date of onset was 2014. The Veteran recalled having problems with his prostate due to voiding difficulty, and he took medication and engaged in self-catheterization at night after seeing a urologist and undergoing tests. The condition had remained the same. The symptoms included difficulty voiding, with urinary frequency and urgency. The examiner noted that the prostate bilateral hypertrophy was also shown on the January 2015 flexible cystoscopy. The examiner noted that the Veteran's treatment included taking continuous medication for the diagnosed condition in the form of Flomax. In Section 3 of the report specific to voiding dysfunction, the examiner noted that the Veteran did experience voiding dysfunction, and the etiology of this issue was bladder diverticulum and prostatitis. The voiding dysfunction caused increased urinary frequency as well as signs or symptoms of obstructed voiding. These noted signs or symptoms included hesitancy, slow or weak stream, decreased force of stream, recurrent urinary tract infections secondary to obstruction, and urinary retention requiring intermittent catheterization. Under Section 4 of the report specific to urinary tract/kidney infection, the examiner stated that the Veteran had a history of recurrent urinary tract or kidney infections; and the etiology of this issue was bladder diverticula with related long-term drug therapy consisting of Flomax. In another DBQ for urinary tract (including bladder and urethra) conditions (excluding male reproductive organs), the diagnosis was diverticulosis of the bladder with urinary tract infections; and the date of diagnosis was 2007. The examiner noted that the Veteran reported testing positive for HIV in 2001, and he developed urinary symptoms of recurrent urinary tract infections. He took several courses of anti-B, and he saw a VA urologist in San Francisco who diagnosed diverticulum of the bladder after performing a cystoscopy in 2013. Under Section 3 of the report specific to voiding dysfunction, the examiner again noted that the etiology of the Veteran's voiding dysfunction was bladder diverticulum and prostatitis. Consistent with the other DBQ, the examiner also reported that the voiding dysfunction caused urinary frequency and signs or symptoms of obstructed voiding. Under section 5 of the report specific to bladder or urethral infections, the examiner noted that the Veteran had a history of recurrent symptomatic bladder or urethral infections; the etiology of which was bladder diverticulum and prostatitis. The examiner added that there was no current treatment for this issue. The May 2015 examiner provided a negative opinion in relation to the Veteran's diagnosed diverticulosis of the bladder and BPH, opining that these disorders were less likely than not proximately due to, or the result of, the Veteran's service-connected HIV + due to the absence of supporting evidence in the medical records. The examiner also stated that he was unable to link these disorders to a single event in military service. The May 2015 examiner separately opined that the Veteran's chronic urinary tract infections were at least as likely as not proximately due to the Veteran HIV disability due to supporting evidence of a persistent condition in the Veteran's medical records. Following this opinion, however, the agency of original jurisdiction (AOJ) sought an addendum to clarify a discrepancy they identified between the DBQs as to etiology of the Veteran's urinary tract infections. The AOJ noted that in Section 4 of the male reproductive conditions DBQ related to prostate cancer, the examiner indicated that the only etiology of the urinary tract infection was bladder diverticula and stated that the Veteran's had treatment in the form of long-term drug therapy with Flomax. In the DBQ for the urinary tract, the examiner indicated in Section 5 that the Veteran had recurrent bladder or urethral infections caused by both bladder diverticula and prostatitis and checked that there was no treatment. The AOJ noted that despite indicating that the etiology of the urinary tract infection (both the diverticulum and the prostate) were not due to the HIV disability, the examiner stated in the medical opinion that the urinary tract infections were at least as likely as not due to the service-connected HIV disability. The examiner responded to the AOJ's request for clarification in a July 2015 addendum, indicating that the reports should be amended to reflect that the urinary tract infection was due to bladder diverticula, to delete prostatitis as a cause, and to add Flomax as a treatment. The examiner also opined that the urinary tract infections were less likely than not incurred in service due to the HIV disability. However, the Board notes that the AOJ's addendum request reflects that the examiner's referenced amendments were limited to modifying Section 4 (urinary tract/kidney infection) of the male reproductive systems DBQ and Section 5 (bladder or urethral infection) or the urinary tract conditions DBQ. As a result, the examiner's findings in Section 3 of both DBQs that the etiology of the Veteran's voiding dysfunction included bladder diverticulum and prostatitis remained unchanged. In August 2021, A.W., a Doctor of Medical Science, Physician Assistant, at VA provided an opinion in support of the Veteran's claims. A.W. noted that she had reviewed the Veteran's medical history via VA's computerized patient record system, including the electronic medical record and John Longitudinal Viewer consolidated Department of Defense and VA consolidated joint electronic medical record system. A.W. noted that that she was aware that the Veteran was initially diagnosed with HIV during his active duty service in 2001, and he was service-connected for acquired immune deficiency syndrome (AIDS). A.W. noted that a review of the Veteran's electronic medical record verified that he had recurrent urinary tract infections, obstructive lower urinary tract symptoms requiring frequent treatment with antibiotics. He also required multiple urology procedures, to include cystoscopy and cystometrogram. In A.W.'s research of current medical literature, there was an established finding of a significantly increased incidence of recurrent urinary tract infections in patients with HIV/AIDS. The increased incidence of urinary tract infections among those diagnosed with HIV/AIDS and increased susceptibility to infections, including atypical infections, was due to decreased immune function. A.W. stated that it was her professional opinion that it was more likely than not that the Veteran's recurrent urinary tract infections and chronic lower urinary tract symptoms were conditions directly resulting from his service-connected AIDS. The Board first notes that although A.W. identified the Veteran's service-connected disability as AIDS rather than HIV +, it is clear that A.W.'s opinion encompassed the Veteran's HIV disability as A.W. referenced HIV alongside AIDS in her rationale. The Board also finds that the opinion addressed each of the three service connection claims on appeal. A.W. specifically noted the Veteran's urinary tract infections in the opinion, and the Board finds that A.W.'s discussion of the Veteran's obstructive lower urinary tract symptoms contemplated his diverticulosis of the bladder and BPH in light of the findings from the May 2015 VA examination reports that the etiology of the Veteran's voiding dysfunction, which included signs or symptoms of obstructed voiding, was bladder diverticulum and prostatitis. The Board additionally finds that A.W.'s opinion is highly probative as A.W. provided a complete rationale that was based on a review of the Veteran's relevant medical history as well as current medical literature. Although the Board has also considered the May 2015 VA examiner's negative medical opinions regarding this theory of secondary of secondary service connection, the Board finds that they are considerably less probative than A.W.'s August 2021 opinion. Regarding the diverticulosis of the bladder and BPH, the examiner stated that there was an absence of supporting evidence in the medical records without providing any further explanation or indicating that the examiner conducted a review of relevant medical literature similar to A.W. In addition, the examiner's July 2015 addendum addressing urinary tract infections appeared to conflate direct and secondary service connection by stating that the disorder was less likely than not incurred in service due to the HIV disability. The most probative evidence consequently supports finding that the Veteran's diagnosed diverticulosis of the bladder, urinary tract infections, and BPH are attributable to, or the result of, his service-connected HIV +. Accordingly, service connection for these disorders is granted as secondary to service-connected major HIV +. 38 C.F.R. § 3.310. As the Board is granting entitlement to service connection on this basis, it is unnecessary to address any other theory of entitlement that has been advanced. REASONS FOR REMAND 9. Entitlement to an increased rating in excess of 30 percent for HIV + is remanded. 10. Entitlement to a TDIU is remanded. During the August 2021 Board hearing, the Veteran testified that he was hospitalized for treatment related to his HIV disability at an Air Force base. Although the Veteran was unable to recall the specific name of the facility at the time of the hearing, he remembered that the base was located in Fairfield, California. An earlier May 2015 VA examination for the Veteran's HIV disability similarly stated that the Veteran was hospitalized in February 2015 at Travis Air Force Base in California. The Veteran's VA treatment records also include a February 17, 2015, a David Grant Medical Center (DGMC) case manager note from the Fairfield Community Based Outpatient Clinic (CBOC) that was authored by the VA Inpatient Care Manager, David Grant Medical Center, stating that the Veteran was admitted under VA benefits to the David Grant Medical Center on February 16, 2015 for otitis externa, mastoiditis. The Veteran was to have a work-up, other. The record added that generally, within 7 days of discharge, copies of the following would be available in VistaWeb Remote: History and Physical, Procedure Report, Progress Notes, and Discharge Summary. A February 23, 2015 addendum to this record added that the Veteran was being discharged with home IV antibiotic therapy. The record added that the discharge summary and other documentation were to be uploaded within 24 hours. A separate February 20, 2015 primary care telephone encounter note from the Durham VA Medical Center stated that a Registered Nurse (RN) received a message to call a provider regarding a discharge follow up appointment for the Veteran. Once contacted, the provider stated that he would fax a History and Physical and discharge summary to the Durham VA Medical Center. A February 23, 2015 addendum to this record stated that the RN received 19 pages of medical records from the David Grant Medical Center, Travis Air Force Base. Additional entries in the VA treatment records appeared to note that related scanned documents were available in VistA Imaging, including a February 16, 2015 Non VA Care Inpatient Admission; a February 23, 2015 "Discharge Note 1 Instr;" a February 23, 2015 Non VA Care Hospital Notification Note; and a February 24, 2015 Non VA Care Consult Result Note. Although a March 17, 2015 VA treatment record labeled as Review of Outside Records appeared to include information from the David Grant Medical Center discharge summary, it is unclear whether the record included all of the information from the scanned "Discharge Note 1 Instr," and it did not appear to reference the other scanned documents. As the Board does not have access to this documentation, the AOJ must attempt to obtain these outstanding records upon remand. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Regarding the Veteran's claim for a TDIU, the Board notes that the Veteran has not yet completed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Consequently, the AOJ should request that he do so upon remand. The TDIU issue is also inextricably intertwined with the increased rating claim for the Veteran's HIV + remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any health care providers who have provided treatment for his HIV + disability. A specific request should be made for authorization to obtain records from the David Grant Medical Center at the Travis Air Force Base. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include records dated since November 2017. Then, upload any and all records from the VistA Imaging system or any similar viewing tool into the claims file, including the following: (1) a February 16, 2015 Non VA Care Inpatient Admission; (2) a February 23, 2015 "Discharge Note 1 Instr;" (3) a February 23, 2015 Non VA Care Hospital Notification Note; and (4) a February 24, 2015 Non VA Care Consult Result Note. 2. Provide the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and ask him to complete and return this form. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.