Citation Nr: 0705101 Decision Date: 02/22/07 Archive Date: 02/27/07 DOCKET NO. 04-32 973 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for disability manifested by urinary voiding difficulties. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Alibrando, Counsel INTRODUCTION The veteran served on active duty from December 1973 to February 1976. The present matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision in which the RO denied the veteran's claim of service connection for urinary retention. In August 2004, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2004, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2004. In June 2006, the veteran and his spouse testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, it was clarified that the issue on appeal is entitlement to service connection for disability manifested by urinary voiding difficulty. Also during the hearing, the appellant submitted additional evidence to the Board, waiving initial RO consideration of the evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.800 (2006). FINDINGS OF FACT 1. All notification and development action needed to render a fair decision on the claim on appeal has been accomplished. 2. No diagnosed disability manifested by urinary voiding difficulty was shown in service, and the competent evidence does not establish a medical nexus between any currently diagnosed disability and the veteran's active service. CONCLUSION OF LAW The criteria for service connection for disability manifested by urinary voiding difficulty are not met. 38 U.S.C.A. §§ 1101, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the claim on appeal in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim has been accomplished. In November 2002, the RO sent the appellant a pre-rating notice letter informing him that to support a claim for service-connected compensation benefits, the evidence must show three things: an injury in military service or a disease that began in or was made worse during military service, or an event during military service that caused an injury or disease; a current physical or mental disability; and, a relationship between the current disability and an injury, disease, or event in service. He was advised as to what medical evidence he could submit in support of his claim. After that letter, the appellant and his representative were afforded full opportunity to respond. Thus, the Board finds that the appellant has received sufficient notice of the information and evidence needed to support the claim for service connection, and has been afforded ample opportunity to submit such information and evidence. The aforementioned letter also listed the evidence received, discussed VA's responsibility to obtain evidence or assist in obtaining evidence, and provided contact information in case of questions. The letter provided notice that VA would make reasonable efforts to help the veteran get evidence necessary to support his claims, such as medical records (including private medical records), if he gave it enough information, and, if needed, authorization, to obtain them. The letter further specified what records VA was responsible for obtaining, to include Federal records, and the type of records that VA would make reasonable efforts to get. Additionally, he was advised to furnish any evidence that he had in his possession that pertained to his claim. The Board thus finds that the November 2002 letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by him and what evidence will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained above, all four content of notice requirements have been met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. As indicated above, in the matter now before the Board, the document substantially meeting the VCAA's notice requirements was provided to the appellant before the rating action on appeal; hence, Pelegrini's timing of notice requirement has been met. More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this appeal, the veteran's status is not at issue, and the RO provided information pertinent to the matters of current disability and medical nexus via the November 2002 letter, addressed above. While the RO has not provided the veteran notice regarding the assignment of a disability rating and an effective date, on these facts, such omission is harmless. See Mayfield v. Nicholson, No. 02-1077, at 7 (Vet. App. Dec. 21, 2006) (rejecting the argument that the Board lacks authority to consider harmless error). Because the Board's decision herein denies service connection for the claimed disability, no disability rating or effective date is being, assigned; accordingly, there is no possibility of prejudice to the appellant under the notice requirements of Dingess/Hartman. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the appellant. The RO obtained the appellant's service medical records, VA treatment records dated from August 2003 to March 2005 and private treatment records dated from June 1993 to May 2006, identified by the veteran. In connection with this claim, the veteran was afforded VA examinations in January 2003, the reports of which are associated with the claims file. The veteran testified during a hearing before the undersigned in June 2006; the transcript of that hearing is of record. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any existing, pertinent evidence in addition to that identified above, that needs to be obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the claim herein decided. Under these circumstances, the Board finds that the appellant is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim on appeal. II. Analysis Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The service medical records show that in April 1975, the veteran was seen for complaints of difficulty urinating in the presence of others for six years and he requested a urological consultation despite a "GMO" opinion that the problem is psychological. The examiner indicated that the veteran had a history of inability to void under public circumstances-a problem present prior to service-and was certainly worse in the Army. It was noted that recently he was unable to produce a drug urine sample. It was indicated that there was no history of genitourinary trauma or infection. The impression was detrusor/bladder dyssynergia. A June 1975 entry indicated that the veteran was being investigated for inability to void publicly, specifically inability to produce a urine specimen for purposes of drug control. It was indicated that "IVP demonstrated normal upper tracts and normal bladder outline. It was noted that the veteran was instructed not to empty his bladder before completion of the examination, but did anyway, and no voiding study was possible. The examiner did conclude that there was no objective evidence of voiding dysfunction. On separation examination in January 1976, the clinical evaluation of the genitourinary system was normal and it was indicated that examination was normal with no defects or diagnoses noted. St. Joseph's Hospital records dated in June 1993 and July 1994 show complaints of difficulty voiding. The veteran underwent cystoscopy and internal urethrotomy in June 1993 and the postoperative diagnoses were anterior urethral stricture and urinary retention. In July 1994, he again underwent cystoscopy and internal urethrotomy and also underwent transurethral incision of the bladder neck. The operation diagnoses were urinary retention, urethral stricture and bladder neck obstruction. Private outpatient treatment records dated from October 1996 to January 2003 show complaints of inability to urinate in public and assessments of bashful bladder syndrome and benign prostate hypertrophy (BPH). On VA psychiatric examination in January 2003, the examiner noted that the veteran was to be assessed for an original service connection for paruresis and indicated that the claims file was available at the time of evaluation. The veteran inservice and postservice history regarding urinary problems was noted. The Axis I (clinical disorders) diagnosis was anxiety disorder, not otherwise specified. The Axis III (general medical conditions) diagnosis was urinary problems, deferred to medical evaluation. The examiner stated that she could not comment as to whether or not the veteran had a specific medical etiology for his urinary problems. It was indicated that if there was no medical etiology to the problem, then it would be suggested that his difficulty urinating had more to do with his anxiety. It was indicated that while anxiety was a component to the urinary problems, no answer could be stated as to whether or not the anxiety was the cause of the problem. The examiner noted that the veteran's current urinary problem appeared to be the identical problem that he was treated for in service, and that he described symptoms identical to those that were documented in the claims file. On VA genitourinary in January2003, the examiner indicated that the claims file was reviewed and noted that the veteran had internal optical urethrotomy in 1994 for urethral stricture with no subsequent recurrence. On examination, objective findings were negative for incontinence, renal colic, bladder stones, hospitalization for urinary tract disease, malignancy, catheterization, medications, or loss of use of a creative organ. The final diagnoses were normal genitourinary examination and BPH. VA outpatient treatment records dated from August 2003 to March 2005 include a January 2003 urology clinic note with an impression of normal examination and BPH. Outpatient psychiatry records show complaints of inability to urinate in public and diagnoses of paruresis, social phobia, depressive disorder, NOS and general anxiety disorder. A May 2006 statement of Dr. Farrell indicated that the veteran suffers from bashful bladder syndrome with considerable difficulty voiding in public. It was indicated that he had undergone urodynamic and was taking medication for an enlarged prostate. It was indicated that urologic workup showed no significant objective findings. During a hearing before the undersigned in June 2006, the veteran testified that during service, he was unable to provide a urine sample. He indicated he was sent to a urologist and despite being asked not to void his bladder, he did so and the examiner terminated the evaluation. He testified that after that incident, he did not seek any other treatment. The veteran's representative noted the veteran's post-service medical treatment and the veteran testified that he was taking medication for an enlarged prostate. He also indicated that he had taken anti-depression medication, but was not currently taking that medication because of a bad reaction. After a full review of the record, including the medical evidence and statements and testimony of the veteran, the Board concludes that service connection for disability manifested by urinary voiding difficulties is not warranted. There is no competent medical evidence showing that a disability manifested by urinary voiding difficulty had its onset during service or is in any way related to service. While the service medical records show that the veteran had a complaint of difficulty urinating in public and was unable to provide a urine sample on request, there is no diagnosis of any genitourinary disability during service. The separation examination was normal and no diagnoses were noted at that time. While there is post-service evidence reflecting diagnoses of urethral stricture, BHP and bladder neck obstruction, there is no competent medical evidence linking any of these diagnosed conditions to service. The January 2003 VA psychiatric examiner speculated that urinary problems may be associated with anxiety, but the examiner was unable to state any specific etiology of his urinary problems. Subsequent VA genitourinary examination in January 2003 was assessed as normal, with a diagnosis of BPH. There is no medical opinion linking BPH to service. The post-service medical records also include notations of "bashful bladder syndrome". The Board emphasizes, however, that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that the veteran's urinary complaints are associated with bashful bladder syndrome, not shown to be a disability for VA compensation purposes, such complaints do not provide a predicate for a grant of service connection for disability manifested by urinary voiding difficulties. In addition to the medical evidence, in adjudicating the claim, the Board has considered the veteran's and his representative's oral and written assertions, as well as the veteran's testimony during a hearing before the undersigned; however, none of this evidence provides a basis for allowance of the claim. As indicated above, the claim turns on the medical matters of diagnosis and etiology-matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative opinion on a medical matter. See, e.g., Bostain v. West , 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, none of the lay assertions in this regard have any probative value. Under these circumstances, the Board finds that the claim for service connection for disability manifested by urinary voiding difficulties must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for disability manifested by urinary voiding difficulty is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs