Citation Nr: 0809943 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-21 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for urinary incontinence, to include as a result of exposure to ionizing radiation and jet fuel. 2. Entitlement to service connection for hypothyroidism, claimed as a thyroid disorder, to include as secondary to exposure to ionizing radiation and jet fuel. 3. Entitlement to service connection for an eye disorder, to include loss of visual field and presbyopia, claimed as secondary to exposure to ionizing radiation and jet fuel. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active service from October 1960 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating determination of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). The veteran appeared at a hearing before a local hearing officer at the RO in August 2005 and at a Board videoconference hearing before the undersigned Acting Veterans Law Judge in August 2007. The issues of service connection for hypothyroidism, claimed as a thyroid disorder, and an eye disorder, to include loss of visual field and presbyopia, to include as secondary to exposure to ionizing radiation and jet fuel, are remanded to the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. FINDING OF FACT The veteran's urinary incontinence is secondary to his service-connected bilateral upper and lower neuropathic pain due to chemical burns from jet fuel. CONCLUSION OF LAW Urinary incontinence is proximately due to or the result of the veteran's service-connected bilateral upper and lower neuropathic pain due to chemical burns. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.310 (2006); 71 Fed. Reg. 52,744-7 (Sept. 17, 2006) (codified at 38 C.F.R. § 3.310(b),(c)). REASONS AND BASES FOR FINDING AND CONCLUSION As it relates to the issue of service connection for a urinary incontinence, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Service Connection Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Under 38 C.F.R. § 3.310(a) (revised effective October 10, 2006), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. The regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2007). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The veteran's service medical records do not contain any complaints or findings of urinary incontinence in service. There were also no complaints or findings of urinary incontinence in the years immediately following service. The veteran maintains that his current urinary incontinence stems from exposure to jet fuel while in service. The veteran essentially argues that his urinary incontinence is related to the neuropathy that results from the chemical burns he sustained while in service, which have resulted in service connection being granted for bilateral upper and lower extremity pain due to chemical burns. In conjunction with his claim, the veteran was afforded a VA examination in January 2006. At the time of the examination, the veteran reported that his urinary incontinence had started about ten years ago. The examiner noted that the veteran had been evaluated by his private physician and found to have an enlarged prostate. The examiner observed that the veteran did have epididymitis in service with tenderness and swelling of the testicle and groin pain. Following examination, diagnoses of urinary incontinence and benign prostatic hypertrophy were rendered. The examiner indicated that he had reviewed the veteran's claims folder and service medical records. It was his opinion that the veteran's urinary incontinence was not related to the groin pain and epididymitis in service. In support of his claim, the veteran submitted a December 2006 statement from his private physician, D. Jacks, M.D., whose specialty is urology. In his letter, Dr. Jacks indicated that he had been seeing the veteran for urinary tract dysfunction. He noted that the veteran had voiding dysfunction. He opined that it was secondary to the neuropathy that the VA was treating. At the time of his August 2007 hearing before the undersigned, the veteran submitted a July 2007 letter from Dr. Jacks. In the letter, Dr. Jacks indicated that it was his belief that the veteran's nocturia, frequency, and urgency, were due to the neuropathy that the veteran suffered as a result of jet fuel exposure while he was in the military service. At the hearing, the veteran noted the letter from Dr. Jacks in support of his claim and agreed to attempt to obtain a medical opinion from Dr. Jacks specifically indicating whether the urinary incontinence was caused by the veteran's service-connected neuropathic pain resulting from the chemical burns. Subsequent to the hearing, the veteran faxed a letter from Dr. Jacks on August 24, 2007. In the letter, dated August 8, 2007, Dr. Jacks indicated that the veteran had been a patient of his for over six years. He again noted that he had treated the veteran for daytime voiding and nocturia and for frequency and urgency. He stated that these symptoms were due to his service-connected bilateral upper and lower neuropathy. For a veteran to prevail in his claim it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). Although the evidence does not overwhelmingly support the grant of service connection for urinary incontinence, it cannot be stated that the preponderance of the evidence is against the veteran's current urinary incontinence being caused or aggravated by service-connected bilateral upper and lower extremity neuropathic pain resulting from chemical burns. Dr. Jacks has specifically indicated that the veteran's urinary incontinence is due to his service- connected neuropathies. There is no other opinion of record to the contrary. See Sanden v. Derwinski, 2 Vet. App. 97 (1992) (if a conclusion is contrary to one expressed by a trained medical professional, the medical basis for rejection of the testimony must be identified). See also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the RO cannot supplement the record with its own unsubstantiated medical opinion but, rather, must base its decision on the evidence and opinion on record). The evidence as to whether the veteran's urinary incontinence is caused or aggravated by his service-connected bilateral upper and lower extremity neuropathic pain is at least in equipoise. As such, reasonable doubt must be resolved in favor of the veteran. Therefore, service connection is warranted for urinary incontinence as secondary to his service-connected bilateral upper and lower extremity neuropathic pain. ORDER Service connection for urinary incontinence is granted. REMAND With regard to the veteran's claims of service connection for an eye disorder, to include loss of visual field and presbyopia, and hypothyroidism, the Board notes that the veteran has indicated that it is his belief that these disorders arise from exposure to jet fuel, in addition to exposure to ionizing radiation. While the Board notes that neither of these disorders has been identified as a radiogenic disease under 38 C.F.R. § 3.311, the Board does observe that the veteran was exposed to jet fuel and other chemicals as a result of the duties he performed in service. As it relates the veteran's claim for an eye disorder, to include loss of visual field and presbyopia, the Board notes that the veteran recently testified that jet fuel came in contact with his eyes as result of the duties he performed as fuel systems mechanic. The Board observes that service connection is currently in effect for chemical burns and neuropathic pain of the upper and lower extremities as a result of exposure to the jet fuel. The veteran has testified as to having had visual problems since his period of service. Although the Board notes that the veteran was afforded a VA examination in December 2005 and that in a May 2006 addendum it was noted that neither the veteran's corneal scars or his cataracts were related to the corneal abrasion he experienced in service, the examiner did not address the possibility of the veteran's current eye problems resulting from his exposure to jet fuel or other chemicals in service. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. As the veteran has reported having vision problems since service, a VA examination is warranted. The Board further notes that the veteran has not been afforded a VA examination as it relates to his hypothyroidism. The veteran has currently been diagnosed as having hypothyroidism. He also noted that he had been told by a VA physician that it was possibly related to his exposure to benzene. Based upon the above, the veteran should be afforded a VA examination. Accordingly, the case is REMANDED for the following action: 1. The veteran should be scheduled for a VA examination to determine the nature and etiology of any current eye disorder. All necessary tests and studies should be performed and all findings should be reported in detail. The examiner should review the claims folder and note such review in the examination report or in an addendum. The examiner should offer the following opinion: Is it at least as likely as not (50 percent probability or greater) that any current eye disorder is related to the veteran's period of active service, including as a result of exposure to jet fuel? The examiner should provide a rationale for the requested opinion. 2. The veteran should be scheduled for a VA examination to determine the nature and etiology of any current thyroid disorder. All necessary tests and studies should be performed and all findings should be reported in detail. The examiner should review the claims folder and note such review in the examination report or in an addendum. The examiner should offer the following opinion: Is it at least as likely as not (50 percent probability or greater) that any current thyroid disorder is related to the veteran's period of active service, including as a result of exposure to jet fuel? The examiner should provide a rationale for the requested opinion. 3. If any of the above claims are not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs