Citation Nr: 22018609 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-17 758 DATE: March 29, 2022 REMANDED Entitlement to service connection for a disability manifested by flank pain, frequent urination, dysuria, and/or hematuria, to include kidney stones, to include as secondary to service-connected Type II diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 2005 to February 2007. He also served on periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the U.S. Army Reserve, to include periods of ACDUTRA from November 1986 to March 1987 and for 13 days from August 2, 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Decatur, Georgia. In March 2020, the Veteran and his wife testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The issue on appeal was previously before the Board in June 2020, May 2021, November 2021, and January 2022, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. On each occasion, after taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Although the Board sincerely regrets the additional delay, another remand is necessary to address a conflict in the evidence and to afford the Veteran every possible consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The evidence of record indicates that the Veteran is seeking service connection for a disability manifested by flank pain, frequent urination, dysuria, and/or hematuria. Although he identified the disability at issue as kidney stones in his June 2013 application for benefits, the evidence now of record, together with his description of symptoms, suggests a claim of broader scope. The Board has recharacterized the issue on appeal accordingly. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that the scope of a claim includes any disorder that may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and other information in the record); Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (applying those principles to non-psychiatric conditions). Entitlement to service connection for a disability manifested by flank pain, frequent urination, dysuria, and/or hematuria, to include kidney stones, to include as secondary to service-connected Type II diabetes mellitus, is remanded. The Veteran has contended that he has kidney stones that were incurred in or caused by service. Specifically, he has contended that he developed kidney stones during a 13-day period of ACDUTRA from August 2, 2009, while serving at Fort Jackson, South Carolina. He has also contended that he has kidney stones that are secondary to his service-connected diabetes. In support of his contention that he has kidney stones that are secondary to diabetes, the Veteran submitted two medical articles in December 2020 and two additional medical articles in December 2021, all of which indicate that diabetes might lead to or is at least a risk factor for developing kidney stones. In its June 2020 remand, the Board noted that an August 2009 VA treatment record demonstrated that the Veteran was given a sick slip from Fort Jackson, and that he was seen in the emergency room for kidney stones at that time. The Board directed the AOJ to obtain a VA medical opinion regarding the etiology of the Veteran's kidney stones. In May 2021 and November 2021, the Board again remanded the claim for fully adequate VA medical opinions, as the VA opinions up to that point were either inconsistent with the evidence of record or had not considered all of the relevant evidence. In November 2021, the AOJ obtained a new VA medical opinion in which the examiner specifically found that the Veteran had a diagnosis of kidney stones, identifying the date of diagnosis as November 2021. The examiner noted the Veteran's report that kidney stones started in 2008 and had worsened to the current date with an enlarged prostate and more frequent urinations. The examiner offered negative nexus opinions as to both direct and secondary service connection. In the most recent, January 2022 remand, the Board found that the November 2021 VA medical opinion was not fully adequate either as to direct or secondary service connection, and again remanded the claim for a fully adequate VA opinion. In rendering an opinion as to the likelihood of whether the Veteran's kidney stones were related to a disease or injury incurred in or aggravated during a period of ACDUTRA or related to an injury incurred during a period of INACDUTRA, the Board directed the examiner to consider and address August 2009 service treatment records (STRs) showing that the Veteran was treated for kidney stones during a 13-day period of ACDUTRA that began on August 2, 2009, a March 2019 opinion from K.H., M.D., and a July 2021 opinion from K.M., M.D. In rendering an opinion on secondary service connection, the Board directed the examiner to consider and address the four medical articles submitted by the Veteran in December 2020 and December 2021 regarding the relationship between diabetes and kidney stones. In February 2022, the AOJ obtained a new VA medical opinion. The examiner found that the Veteran did not have a chronic diagnosis of kidney stones. She reasoned that in 2008, the Veteran was seen for dysuria and flank pain, and that in 2009, while at Fort Jackson, the Veteran was seen for similar complaints at the Piedmont emergency room. She stated that while a diagnosis of kidney stones was rendered, no imaging or stone work-up confirmed that diagnosis. She continued that in 2013 an MRI showed a possible stone but that it was not confirmed, and that no treatment note showed a diagnosis of a chronic history of kidney stones. She added that Dr. H.'s and VA treatment notes did not show a chronic history of kidney stones and stated that any competent provider would send the patient to nephrology for stone work-up if they were suspicious of kidney stones as often as the Veteran claimed to have them. The February 2022 examiner further stated that the Veteran did have evidence of urinary tract infections (UTIs), and that these could have a similar presentation to kidney stones, including dysuria, hematuria, and flank pain. She noted the Veteran's report on a kidney Disability Benefits Questionnaire (DBQ) that he took "Thoxazone/Trimtoprim," but she stated that that medication was an antibiotic, not a treatment for kidney stones. The February 2022 examiner also addressed the Veteran's report of having kidney stones since 2008 that had since worsened, but stated that that was not supported by medical literature, even if a kidney stone condition were present, finding that the Veteran's symptoms were due solely to an enlarged prostate which was unrelated to a kidney stone. The examiner cited to Dr. M.'s July 2021 opinion, but found that it was not supported by the evidence regarding kidney stones. She noted that the Veteran presented for flank pain again in 2015, and that the differential diagnoses were UTIs, stones, and constipation, that he was given Cipro (an antibiotic), and that no further issues or the need for additional testing was documented. She stated that the Veteran appeared to be confusing kidney stones with a UTI which was based entirely on the unconfirmed diagnoses of kidney stones in 2009, and concluded that given all the evidence, no diagnosis of kidney stones existed, that lay statements were not supported by the evidence, and that a nexus had not been established. The examiner entered the same opinion as to both the causation and aggravation prongs of secondary service connection. Given the contradictory findings set out by the November 2021 and February 2022 VA examiners, the Board finds that a remand for an addendum opinion is warranted. In light of the finding by the February 2022 VA examiner that the Veteran does not have, and has never had, a confirmed diagnosis of kidney stonesand the concomitant broadening of the scope of the Veteran's claim, as noted abovethe Board finds that a medical opinion is needed with respect to whether the Veteran has had any disabilities manifested by flank pain, frequent urination, dysuria, and/or hematuria, to include kidney stones, at any time during or proximate to the filing of his claim that are related to service or are secondary to service-connected Type II diabetes mellitus. Updated records of VA treatment should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, arrange to provide the record on appeal to a VA examiner other than the examiners who offered opinions regarding the Veteran's claim for service connection for kidney stones in November 2021 and February 2022. The new examiner should review the expanded record. After reviewing the record, the examiner should identify any disabilities manifested by flank pain, frequent urination, dysuria, and/or hematuria, to include kidney stones, that have been present at any time since June 2013 (when the Veteran filed his claim for service connection). In so doing, the examiner should consider and address the November 2021 VA examination report in which the examiner found that the Veteran had a diagnosis of kidney stones, and the February 2022 VA examination report in which the examiner found that he did not. The Board emphasizes that it is the symptoms of flank pain, frequent urination, dysuria, and/or hematuria for which the Veteran is seeking service connection. For each identified disability, if any, the examiner should offer an opinion as to the likelihood that the disability in question 1) is related to a disease or injury incurred in or aggravated during a period of active duty for training (ACDUTRA) or 2) is related to an injury incurred in or aggravated during a period of inactive duty training (INACDUTRA) (the Board notes parenthetically that only injuries, and not diseases, are recognized under 38 U.S.C. § 101(24) as the basis for establishing service connection related to periods of INACDUTRA). In so doing, the examiner should consider and address August 2009 STRs showing that the Veteran had treatment consistent with kidney stones during a 13-day period of ACDUTRA that began on August 2, 2009; the March 2018 statement from Dr. H.; and the July 2021 statement from Dr. M. If the examiner finds that it is unlikely that any identified disability is directly related to service, he or she should offer a further opinion as to whether any identified disability was a) caused or b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by the Veteran's service-connected diabetes. If, and only if, kidney stones are identified as a disability that has been present at any time since June 2013, then in rendering an opinion on secondary service connection the examiner should consider and address the four medical articles submitted by the Veteran in December 2020 and December 2021 regarding the relationship between diabetes and kidney stones. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.