Citation Nr: 0824125 Decision Date: 07/18/08 Archive Date: 07/30/08 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: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran had active service from December 1973 to February 1976. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision in which the RO denied service connection for urinary retention. The veteran filed a notice of disagreement (NOD) in September 2003, and the RO issued a statement of the case (SOC) in August 2004. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in September 2004. Thereafter, the RO continued the denial of the claim (as reflected in an October 2005 supplemental SOC (SSOC)). In June 2006, the veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. As discussed below, based on the veteran's hearing testimony, and other evidence in the case, the Board recharacterized the claim on appeal as one for service connection for disability manifested by urinary voiding difficulty. The Board denied the claim in February 2007. The veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In March 2008, counsel for the veteran and the VA Secretary filed a Joint Motion with the Court to vacate and remand the February 2007 Board decision. By Order dated March 2008, the Court granted the Joint Motion, vacating the Board's February 2007 decision, and remanding this matter to the Board for further proceedings consistent with the Joint Motion. For the reasons expressed below, the matter on appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran when further action, on his part, is required. REMAND As reflected in the service medical records and the veteran's testimony, during service, he was investigated for inability to void publicly, based on his inability to produce a urine specimen for purposes of drug testing. One in-service opinion indicated that the inability to void was psychological in nature, while a urologist diagnosed detrusor/bladder neck dyssynergia. Although post-service private medical records included diagnoses of urinary retention, urethral stricture, and bladder neck obstruction, as well as "bashful bladder syndrome," a January 2003 VA genitourinary examination was normal, with a diagnosis of only benign prostate hypertrophy. However, a January 2003 VA psychiatric examiner diagnosed anxiety disorder as a component of the urinary problems, but declined to express an opinion as to the etiology of the urinary problems. The examiner did note that the veteran's urinary problems appeared to be the same as those treated in service. The Board denied the claim on the basis that there was no competent medical evidence showing that a disability manifested by urinary voiding difficulty had its onset during service or was in any way related to service. The Board found that, to the extent that the veteran's urinary complaints were associated with bashful bladder syndrome, this was not shown to be a disability for VA compensation purposes. The parties to the joint motion agreed that remand was required because the Board did not provide an adequate explanation for its finding with regard to bashful bladder syndrome. See Joint Motion, at 3-4. The parties to the joint motion also acknowledged that, on remand, the veteran could argue that the January 2003 psychiatric examination report is inadequate because the VA examiner failed to provide an opinion as to the etiology of the veteran's "disability." See Joint Motion, at 5. The veteran's attorney made this argument in a July 2008 letter. She also submitted a June 2008 letter from Dr. Farrell, in which he described the veteran's bashful bladder syndrome and concluded that he could not say there was a causal relationship between the bashful bladder syndrome and service, other than to say that the problem began "on this time line." Given that the parties to the joint motion suggested that bashful bladder syndrome is a disability for VA purposes and that the January 2003 VA psychiatric examination report is inadequate to determine whether there is an etiological relationship between the veteran's bashful bladder syndrome and service (and given that Dr. Farrell's opinion is similarly inadequate), a remand is warranted for a new VA psychiatric examination. Hence, the RO should arrange for the veteran to undergo VA psychiatric examination, by a physician, at an appropriate VA medical facility. The veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the claim (as the original claim for service connection will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility at which the examination is to take place. Prior to arranging for the veteran to undergo further examination, the RO should give the veteran another opportunity to present any additional information and/or evidence pertinent to the claim for service connection for disability manifested by urinary voiding difficulties. The RO's notice letter to the veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should request that the veteran furnish any evidence in his possession and ensure that its letter to the veteran meets the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) as regards the five elements of a claim for service connection- particularly, disability ratings and effective dates-as appropriate. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for disability manifested by urinary voiding difficulties. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for disability manifested by urinary voiding difficulties. The RO should also invite the veteran to submit all pertinent evidence in his possession and explain the type of evidence that is his ultimate responsibility to submit. The RO should also ensure that its letter meets the requirements of Dingess/Hartman, cited to above, as regards disability rating and effective date (as appropriate). The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received are associated with the claims file, or, the time period for the veteran's response expires, the RO should arrange for the veteran to undergo VA psychiatric examination, by a physician, at an appropriate VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the veteran, and the report of the examination should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The physician should clearly identify all disability/ies manifested by urinary voiding difficulties. If the examiner diagnoses "bashful bladder syndrome," the physician should indicate whether such condition constitutes a chronic disability for service connection purposes. Then, with respect to each diagnosed disability, the physician should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability had its onset in or is otherwise medically related to service. In rendering the requested opinion, the examiner should specifically consider and discuss the incident described in the service records in which the veteran was unable to produce a urine specimen, as well as the January 2003 comment by a VA psychiatrist that the veteran's urinary problems appear to be the same as those treated during service. The physician should set forth all examination findings, along with a complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the veteran by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and development deemed warranted, the RO should readjudicate the claim for service connection for disability manifested by urinary voiding difficulties in light of all pertinent evidence and legal authority.. 7. If the benefits sought on appeal remain denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2007), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).