Citation Nr: 1007866 Decision Date: 03/03/10 Archive Date: 03/11/10 DOCKET NO. 06-19 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bladder cancer residuals, including secondary to post-operative residuals of a low back disability. 2. Entitlement to service connection for bilateral upper extremity weakness, numbness, and pain, including secondary to post-operative residuals of a low back disability. 3. Entitlement to service connection for right lower extremity weakness, numbness, and pain, including secondary to post-operative residuals of a low back disability. 4. Entitlement to an increased rating for post operative residuals of a lumbar laminectomy, currently evaluated as 20 percent disabling. 5. What initial evaluation is warranted for left lower extremity radiculopathy since January 2005? 6. Entitlement to a total disability rating on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1976. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2005 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida, that denied entitlement to service connection for bilateral upper and right lower extremity weakness, numbness, and pain; and entitlement to service connection for residuals of bladder cancer, to include secondary to post-operative residuals of a low back disability. The rating decision also denied entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, and continued the existing 20 percent rating for post operative residuals of a lumbar laminectomy and discectomy. The RO in Atlanta, Georgia, exercises current jurisdiction of the claims file. The Veteran appeared at a Travel Board hearing in November 2008 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. In an October 2005 letter, the Veteran noted that the only parts of the September 2005 rating decision he disagreed with were the denials of the service connection claims and the TDIU. Those were the only issues included on the statement of the case. They also were the only issues of the case acknowledged at the hearing. See Board Transcript, p. 1. In a separate statement (VA Form 21-4148) received by the RO later in October 2005, however, the Veteran clearly disputes the continued 20 percent rating for his low back disorder, as well as the initial rating assigned left lower extremity radiculopathy. The contents of the statement clearly satisfy the requirements for a Notice of Disagreement. See 38 C.F.R. § 20.201 (2009). Thus, the Veteran is entitled to a statement of the case on these issues. See 38 C.F.R. §§ 19.26(d), 19.29 (2009). The issues of what evaluation is warranted for post-operative lumbar laminectomy and, what initial evaluation is warranted for left lower extremity radiculopathy since January 2005, are addressed in the REMAND portion of the document below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the probative evidence indicates that bladder cancer residuals, are not related to an in- service disease or injury, or to a service-connected disability. 2. The preponderance of the probative evidence indicates that bilateral upper extremity weakness, numbness, and pain, are not related to an in-service disease or injury, or to a service-connected disability. 3. The preponderance of the probative evidence indicates that right lower extremity weakness, numbness, and pain, is not related to an in-service disease or injury, or to a service-connected disability. 4. The preponderance of the competent evidence does not reflect the Veteran's post operative residuals of a lumbar laminectomy alone were so exceptional that he was unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Bladder cancer was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by active service, and bladder cancer was not caused or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b) (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a) (2009). 2. Bilateral upper extremity weakness, numbness, and pain, was not incurred in or aggravated by active service, nor may an upper extremity neurological disorder be presumed to have been incurred in or aggravated by active service, nor was such a disorder caused or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a). 3. Right lower extremity weakness, numbness, and pain, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by active service, and it was not caused or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a). 4. The requirements for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in February 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. A March 2006 letter provided adequate notice of how disability ratings and effective dates are assigned. The two letters met all VCAA notice requirements. Further, following issuance of the March 2006 letter, the claims were reviewed de novo in the May 2006 statement of the case. Thus, any timing-of-notice error was cured and rendered harmless. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case is sufficient to cure a timing defect. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). While he may not have received full notice prior to the initial decision, after notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claims via the presentation of pertinent evidence and testimony. Thus, no prejudice inured to him. See Washington v. Nicholson, 21 Vet. App. 191 (2007). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Direct and Presumptive Service Connection Governing Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer or certain diseases of the central nervous system become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Analysis Service treatment records are entirely negative for any entries related to complaints, findings, or treatment for, any genitourinary symptoms or complaints. The November 1976 Report of Medical Examination For Separation notes that both the genitourinary and endocrine systems were clinically normal. Neither is there any evidence, or assertion, that bladder symptoms or cancer manifested to a compensable degree within one year of separation from active duty. The Veteran's bladder cancer was diagnosed in March 1996-almost 20 years after his separation from active service. Further, the medical evidence of record contains no evidence of any linkage between the Veteran's bladder cancer and his active service. Indeed-as discussed below in much greater detail, the Veteran does not base his claim on a direct or presumptive basis, but rather on a secondary basis. Service treatment records note the Veteran's December 1975 presentation three weeks after he reportedly fell approximately 12 feet from a tower to the ground. He reported falling on a concrete surface in the sitting position. He told the examiner he experienced numbness and paresthesia in his left toe, and that his limbs and muscles went out all at once. He denied any head injury, and he reported no urinary symptoms. Physical examination revealed normal neurological findings. In August 1976, the Veteran presented with complaints of intermittent low back pain without sciatic radiation but with aching in the posterior thigh upon prolonged walking and sitting. He also complained of left toe numbness. Physical examination revealed straight leg raising was negative bilaterally, as was Lasegue's. Reflexes, sensation, and circulation were intact. The November 1976 Report of Medical Examination For Separation notes the Veteran complained of low back pain but no neurological symptoms. The neurologic system was assessed as normal. There is no evidence of any central nervous system disorder being manifested to a compensable degree within one year of separation from active duty. The claimed symptoms did not manifest to that degree until more than one year after separation from active service. In light of the above, the Board finds the preponderance of the evidence is against service connection for bladder cancer residuals, bilateral upper and right lower extremity weakness, numbness, and pain, on a and presumptive bases. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Secondary Service Connection Governing Law and Regulations A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection is in effect for post-operative residuals of laminectomy and discectomy, and the Veteran is diagnosed with bladder cancer, currently in remission; so, Wallin elements 1 and 2 are satisfied. The salient issue remaining is element 3: whether there is a medical linkage between bladder cancer and/or right lower extremity neurological symptoms and post-operative residuals of a low back injury. Background The Veteran asserts that his postoperative residuals of a thoracolumbar disorder caused urine retention and voiding dysfunction which in turn caused the development of bladder cancer. He has submitted general medical literature that discusses the high incidence of missed spinal injuries during treatment of the initial trauma, as well as the increased risk of bladder cancer following a spinal injury or surgery. The discussion of the service treatment records set forth above is incorporated by reference. There are few-if any, records extant related to the Veteran's low back disorder for the period between his separation from active service in 1976 and the 1990s, as the providers who treated him have retired from the active practice of medicine, and their successors do not currently maintain any records related to the Veteran. The Veteran reports that he experienced constant pain between separation and his low back surgery. A May 1992 report of Dr. Capulis, D.C., notes the Veteran's complaints as a continuous dull ache and a sharp pain when standing. An x- ray was interpreted as showing subluxation at various points between C1 through L5. A November 1996 lumbar spine MRI report noted degenerative changes at T11-12 and L5-S1, an annular bulge at L1-2, and a small disc herniation at the L5-S1 level. A May 1997 report of Dr. Acosta, M.D., notes the Veteran underwent a lumbar laminectomy and discectomy in March 1997 for a large herniated lumbar disc. Relevant medical records reveal the Veteran's urological pathology began prior to his 1997 lumbar laminectomy. Records of Robert Bradford, M.D., provide the most extensive history of the Veteran's post-cancer diagnosis treatment following his relocation to Florida. Dr. Bradford's August 1997 initial consultation notes the Veteran's reported history. A 1995 intravenous pyelogram was normal with some microscopic hematuria, and the Veteran was treated for prostatitis at the time. A March 1996 cystography revealed a stage T-A, Grade II/IV transitional cell carcinoma of the bladder in the right hemitrigone. A CT of the abdomen and pelvis was negative. A June 1996 repeat cystography revealed small a recurrent tumor just superior to the area of the original lesion, which was noted again to be pathologic T-A disease. Following the 1996 cystographies, the Veteran underwent bacille Calmette-Guerin (BCG) treatment via six instillations. An August 1996 intravenous pyelogram was normal, as were a September 1996 cystography, random bladder biopsies, and urine cytology studies. Random bladder biopsies in December 1996 and March 1997 were negative, but a June 1997 cystography and biopsy revealed another small recurrent Grade III/IV, T-A, transitional cell carcinoma. The veteran underwent a five-week course of BCG with marked irritative symptoms. Dr. Bradford's, and Wesley Scoles', M.D., records note that the appellant's genitourinary symptomatology through 2005. This symptomatology included urine retention, frequency, voiding dysfunction, and prostatitis. Dr. Bradford's November 2002 entry noted the etiology was unclear; it could have been related to prostatitis, or possibly even tubucular prostatitis. He also found it interesting that the Veteran had severe urinary frequency after the BCG instillation several years earlier. At this juncture, Dr. Bradford noted no linkage between the Veteran's low back and his genitourinary symptoms, even though his August 1997 initial consult noted the Veteran's laminectomy. The May 2004 VA spine examination report noted the 1996 lumbar MRI examination findings. The examiner noted decreased sensation of the left great toe, as well as some impaired sensation around the left knee area. The examiner diagnosed severe degenerative disc disease and opined the Veteran's current orthopedic symptoms were causally related to his 1975 in-service fall. January 2005 VA lumbar x-rays showed degenerative disc space narrowing at L4-5. Thoracic spine x-rays showed minimal mid- thoracic scoliosis and lower-thoracic spondylosis. Healed fractures of the left fifth, sixth, and seventh, ribs posterio- laterally was also noted. A June 2005 VA lumbar MRI examination showed partially imaged spinal canal narrowing at T11-12, a small amount of scar tissue surrounding the left descending S1 nerve root, and a concentrically bulging disc at L5-S1 that contacted the inferior aspects of both exiting nerve roots. The June 2005 VA neurosurgery examination report notes the Veteran's complaints and history. The only positive finding was splotchy areas of numbness not consistent with any particular dermatome. The examiner noted the findings on examination revealed no overt spinal cord injury. The Veteran was not hyperreflexic, and he did not have any pathological reflexes. The thoracic cord compression at T11-12 shown on the June 2005 MRI was noted, but the examiner also noted it was incompletely imaged. Nonetheless, in light of his review of the claims file and his findings on examination, the examiner opined it was unlikely the Veteran's back injury was the etiology for his bowel or bladder symptoms-without causing any other pathologic reflexes or evidence of decreased lower extremity function. A VA examiner reviewed the claims file and Computerized Patient Record System medical records in August 2005. The reviewer noted the Veteran's complaints of chronic constipation and urinary frequency but opined that, in the absence of evidence of spinal cord injury, there was no basis on which to opine that those symptoms were related to the service-connected lumbar spine disorder. In a July 2005 letter, Dr. Bradford noted the Veteran's history of superficial bladder cancer and his treatment of the Veteran since 1997, including for voiding dysfunction and some obstructive symptoms. He also noted that the Veteran had a history of a back injury involving L5-S1, L1, and L4-5, with canal narrowing and some bulging discs that eventually required surgery. Dr. Bradford noted that there was a medical probability that some of the Veteran's voiding dysfunction was related to his back injury. Dr. Bradford observed that the Veteran appeared to empty his bladder relatively well, some patients with voiding dysfunctions-particularly patients with chronically large retained residual urines, were at an increased risk for bladder malignancy. The Veteran also submitted private reports from a chiropractor and a radiology consultant. Dr. Foland's, D.C., August 2005 report noted that examination revealed palpable tenderness at T11 through L1. He opined it was extremely rare to have degeneration present at T11-12 without significant trauma in the patient's history. He opine further that, due to the extent of the Veteran's spinal cord and nerve root irritation/compression, it was more likely than not T11-12 trauma was a direct contributor to the Veteran's development of chronic urinary retention and further development of ongoing bladder and bowel dysfunction. Dr. Foland also opined the Veteran's reported symptoms were consistent with Cauda Equina Syndrome, which should be ruled out and related back to the 1975 injury. The Veteran retained Craig N. Bash, M.D., a neuro-radiologist, to review his case. In an October 2005 report, which the RO has annotated, Dr. Bash reported the Veteran fell "20+ feet" and landed on his tailbone. Dr. Bash opined that this fall created a large axial acute load to the Veteran's spine. This load, per Dr. Bash, was the etiology for the Veteran's thoracic spinal stenosis and lumbar degenerative disease which led to his eventual lumbar surgery. Dr. Bash opined that the Veteran's bladder and bowel symptoms were likely secondary to his spinal root disease and/or his thoracic spine injury, as he concluded that the record did not show another likely etiology for them, other than sequella of the spine injury. Dr. Bash cited to literature which showed that the incidence of bladder cancer following spinal cord injury was 16 to 28 times higher than the general population. He specifically disagreed with the June 2005 VA examiner's opinion that there was no evidence of overt spinal cord injury. Dr. Bash noted the VA examiner did not integrate the imaging studies, which reportedly were pivotal to the veteran's case. Dr. Bash placed significant weight on the MRI findings at T11-12. The Board notes that the reports and imaging studies Dr. Bash notes as being not discussed were conducted only after the June 2005 VA examination. In light of the state of the record, particularly as concerned the medical opinions, the Board referred the claims file to the Veterans Health Administration for a specialist opinion. 38 C.F.R. § 20.901(a). The Board requested the examiner to render an opinion as to whether there was at least a 50-50 probability that the Veteran's 1975 in-service fall was the etiology for his bladder and bowel symptomatology; and, whether there was at least a 50-50 probability that the Veteran's bladder cancer is causally linked to the 1975 in-service fall and resulting spine pathology. The April 2009 report notes the specialist, a chief of urology, opined it was very unlikely the Veteran's 1975 in- service fall caused his bladder/bowel symptoms. One of the bases for his opinion is that he agreed with the findings of the neurological examinations of record. In light of the immediate post-fall normal neurologic examination, the specialist opined that it was very unlikely for one to experience bladder/bowel dysfunction solely due to the fall. He opined that a normal neurologic examination would indicate that it was very unlikely that the appellant sustained a significant nerve injury that would have affected the bladder/bowel function. The urological specialist noted the Veteran had normal neurologic examinations during his active service. Further, the examiner noted the Veteran's laminectomy was done not due to bladder/bowel dysfunction but to alleviate his back pain, which it did for a time. The VA urological specialist opined that the more likely cause of the Veteran's obstructive voiding and overactive bladder was benign prostate hypertrophy, which is documented in the Veteran's treatment records. The specialist noted the Veteran obtained relief from obstructive voiding from his use of Flomax, and relief from his overactive bladder from Ditropan XL. The specialist observed that prostate enlargement can cause a weak urinary stream from closure of the urinary passage due to the prostate growing from the inside. That same process can cause the bladder wall to function abnormally and cause urinary urgency and frequency. Benign prostate hypertrophy, noted the specialist, is caused by aging and not nerve injury. It was opined that the Veteran's symptoms of an overactive bladder were likely a consequence of benign prostate hypertrophy and not nerve injury. In light of these factors, the specialist disagreed with Dr. Bradford's comments in his July 2005 letter that there was a medical probability the Veteran's voiding dysfunction was related to his back injury. As for Dr. Bash's opinion noted in his October 2005 letter that the Veteran's bladder/bowel dysfunctions were likely caused by "his spine injury," the specialist first observed that Dr. Bash is a radiologist, and not a urologist, neurologist, or neurosurgeon. The specialist noted that Dr. Bash had no special training in those specialties on which to base his opinion. The VA specialist noted that Dr. Bash's comment that Dr. Bradford had documented neurogenic voiding by the Veteran was an incorrect correlation. The Veteran's disc disease, noted the specialist, was not associated with a nerve injury by a neurosurgical evaluation. As a result, neurogenic voiding did not exist in the Veteran's case. The specialist also disagreed with Dr. Bash's opinion that the Veteran's kidney stones were secondary to bladder dysfunction/spinal axis injury. Instead the urologist found that the Veteran's bladder dysfunction was due to benign prostate hypertrophy and an overactive bladder. Those disorders, observed the specialist, are not associated with an increased risk for kidney stones. Spinal cord-injured patients who are paralyzed and immobile can develop kidney stones, as their immobility causes loss of calcium from their bones which results in stone formation, which was not the case with the Veteran. Dr. Foland's August 2005 comment that the Veteran's 1975 T11- 12 trauma contributed to the development of chronic urinary retention and bladder/bowel dysfunction was also disputed by the specialist. The specialist noted there was no evidence of chronic urinary retention. At one point in 2005, the Veteran's post-voiding residual was 3 cc, which showed that the Veteran was emptying his bladder well. Indeed, Dr. Bradford noted in July 2005 the Veteran was emptying his bladder relatively well. The VA specialist also opined it was unlikely the Veteran's bladder cancer is causally linked to his 1975 in-service fall and resulting spine pathology. In fact, the specialist noted it was very unlikely. The specialist based his opinion on the fact that bladder cancer is uncommon in people the Veteran's age, though it does occur. The most common cause of bladder cancer, noted the specialist, is tobacco exposure. He noted the Veteran smoked one pack of cigarettes per day for 15 years, and an August 1997 medical record entry noted he started smoking a pipe. An April 1999 entry notes the Veteran smoked four to five bowls of tobacco a day. In November 2003 the appellant was still smoking three bowls a day. The specialist noted smoking is a very likely cause for the Veteran having developed bladder cancer. Dr. Bradford noted in July 2005 that chronically large retained urine residuals could increase the risk for bladder cancer. The VA specialist noted there was no documented instance of the Veteran having a large residuals urine volumes, again noting the 2005 notation of 3 cc. The specialist opined the Veteran's smoking history was a more likely cause of his bladder cancer than his retained urine residuals. The specialist also noted Dr. Bash's October 2005 opinion that the Veteran's bladder cancer was most likely due to voiding dysfunction and neurogenic bladder because no other more likely etiology was indicated by the record. The specialist, however, again opined that the Veteran's tobacco use was a far more likely cause for his bladder cancer, and the fact of his smoking is documented in the record. The specialist noted that spinal cord injury can be connected with neurogenic bladder, but there is no documented evidence the Veteran sustained a spinal cord injury or that he had neurogenic bladder. He observed that the article on spinal cord injury, neurogenic bladder, and bladder cancer, referenced by Dr. Bash was taken out of context. The noteworthy patients in the article had a spinal cord injury, neurogenic bladder, bladder cancer, and chronic in-dwelling bladder catheters. Such patients have urethral Foley catheters or suprapubic catheters. The chronic presence of a catheter (for approximately 20 years) causes chronic bladder lining irritation and inflammation. That type of bladder lining injury causes the cells of the bladder lining to undergo malignant changes leading to a high risk for bladder cancer development. The Veteran, observed the specialist, does not have a spinal cord injury, neurogenic bladder, or a chronic in-dwelling catheter; so, the referenced article does not apply to him. Summarizing, the specialist noted the development of bladder cancer is more related to the chronic inflammation caused by the chronic catheter. As a result, patients with spinal cord injury and neurogenic bladder commonly do intermittent catheterization where the catheter is used only briefly to drain the bladder and then removed. Again focusing on Dr. Foland's August 2005 report and opinion, the specialist noted that nowhere in urologic literature is bladder cancer caused by spinal trauma. In light of the entry that the Veteran was emptying his bladder relatively well, the specialist opined urine retention was not the likely cause for his bladder cancer, but his smoking history. The Board also requested input from a neurologist. The staff neurologist to whom VHA referred the claims file is a physician who holds duel MD/PhD degrees, and who serves as an associate professor of neurology at a state university medical school. The Board requested input on whether there is medical evidence the Veteran sustained or has a spinal cord injury; and, whether a nerve root injury or pathology is synonymous with a spinal cord injury. The neurologist noted that his review of the claims file revealed no evidence of a spinal cord injury-either service- related or otherwise. The Veteran has had a persistently normal neurologic examination without evidence of either upper or lower motor neuron dysfunction. His leg reflexes are all present and are neither hyper- nor hypoactive. His plantar responses are flexor, i.e., absent or negative Babinski sign, which basically eliminates the possibility that he sustained motor spinal cord damage. The neurologist also noted that, by report, there is suggestive, although not definitive, radiographic evidence of spinal canal narrowing at T11-T12 by osteophytes. There is no mention, however, of myelomalacia, which would be consistent with spinal cord damage. The neurologist noted that MRI scans are useful in confirming localization of lesions causing dysfunction. Abnormalities on such scans in the absence of clinical data suggesting neurologic dysfunction are considered incidental findings of little importance. The neurologist also noted that a nerve root injury is not synonymous with spinal cord injury. He stated that nerve roots are projections of fibers either entering or leaving the spinal cord. Some roots bring sensory information to the spinal cord, while others carry motor signals to muscles and organs. Roots are frequently injured in areas distant from the spinal cord, especially in the lumbar spine. Further, signs and symptoms of nerve root injury are distinct from those arising from spinal cord injury. Following his receipt of a copy of the VHA specialists' opinion, the Veteran referred the report to Dr. Bash for a response. His response was received in August 2009. Dr. Bash deemed himself qualified to opine on the Veteran's case, as he has special knowledge in the areas of spine and bowel/bladder diseases, and that he is one of about 3000 neuro-radiologists in America at the PGY-7 level. He also noted his experience interpreting plain x-rays, CT scans, ultrasounds, and other imaging studies, and he correlated his reading of the various imagings with the clinical record or physical examination. Dr. Bash asserts the Veteran's case hinges on the imaging studies, does not require a hands-on examination, but is ideally suited for a radiologist such as himself, and he deems himself an exquisitely well trained diagnostician. Analysis Initially, the Board notes that, in assessing the opinion of Dr. Bash, his extensive comments and assertions as to whether the Veteran has a cervical spine disorder will not be addressed, as that is an issue over which the Board does not have jurisdiction. As noted in the introduction, it was referred to the RO for appropriate action. The same result applies for Dr. Bash's comments and assertions related to the evaluation of the Veteran's post operative residuals of a lumbar laminectomy and discectomy. Treatise evidence must discuss generic relationships with a degree of certainty such that under the facts of this particular case there is at least a plausible causality based on objective facts rather than on unsubstantiated lay medical opinion. See, e.g., Wallin v. West, 11 Vet. App. 509, 514 (1998). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another, Evans v. West, 12 Vet. App. 22, 31 (1998), which it may do, provided the reasons therefor are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Further, while the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it substantial weight-that is, preference over another opinion. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). After reviewing all the evidence of record, the Board finds the opinions offered by the VHA specialists' are supported by a preponderance of the evidence of record. Hence, the Board accords them far more substantive weight than the opinions of the other medical professionals of record, including Dr. Bash. Dr. Foland. Dr. Foland, as noted earlier, is a chiropractor. There is no evidence that his specialized training extends to urology or radiology. Thus, the Board accords minimal weight to his proffered opinion on the etiology of the Veteran's reported chronic urine retention. Further, he based his opinion on the history as provided by the Veteran. That in and of itself is not fatal, but the reported history must be accurate. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). The Board discusses this aspect below. Dr. Bradford. Dr. Bradford's opinions do not receive preference simply because he is the Veteran's treating urologist. He treated the Veteran for a number of years and never documented any potential link between the Veteran's back injury and his genitourinary disorders. Further, Dr. Bradford's opinion only went as far as stating there was a general medical probability of a link between the Veteran's in-service back injury and his development of bladder cancer. The totality of his report notes that he does not provide a specific definitive personal medical opinion that the Veteran's prior back injury is the etiology for his bladder cancer. After noting the general medical probability, he observed, "some patients with voiding dysfunctions". . . . (Emphasis added). Nonetheless, Dr. Bradford's insights are very valuable in other aspects the Board addresses later. Dr. Bash. The Board notes Dr. Bash's observation that it was only prior to his review of the VHA specialist's opinion that he had access to the Veteran's copy of the claims file. His eventual access to the entire file notwithstanding, he did not note any correction to the Veteran's history as the Veteran reported it to him. In his prior report, part of Dr. Bash's opinion was based on his understanding that the Veteran's in-service injury entailed a fall of 20 feet. The evidence shows that is not correct, as the 1973 entry in the service treatment records clearly notes the Veteran's fall was from approximately 12 feet. While the Board will not set forth a discourse on the laws of physics for mass and acceleration involved, reasonable minds should agree that the additional eight feet would make a significant difference in the severity of the impact on landing. But that is not the primary reason why the Board is not persuaded by Dr. Bash's opinion. Dr. Bash asserts that the VHA urologist and neurologist may not have had the entire claims file before them. That statement is inaccurate. As set forth above, and in the request for the VHA opinion, both VHA specialists reviewed the claims file. Dr. Bash does not directly dispute the basis on which both of the VHA specialists opined there was no nexus between the Veteran's back injury and his development of bladder cancer. In addition to the specific genitourinary symptoms noted, one of the crucial findings of the VHA specialists is that there is no evidence whatsoever the Veteran sustained a spinal cord injury in his 1973 fall. Dr. Bash devotes much time to the Veteran's reported symptoms and how he should be rated, but he does not directly confront that critical fact. The VHA neurologist noted the Veteran's reflexes were consistently present both immediately after his injury and at discharge, which were critical indicia of the absence of a spinal cord injury. The medical evidence shows that the Veteran consistently presented himself as neurologically normal inservice. His plantor responses were flexor-that is, negative Babinski sign, which basically eliminated the possibility he sustained motor spinal cord damage. Dr. Bash heavily emphasizes the Veteran's decreased reflexes, but even decreased or diminished reflexes are present reflexes. Thus the VHA neurologist's opinion is not in any way contradicted. Further, the VHA neurologist noted the suggestive-although not definitive, MRI examination evidence of spinal canal narrowing at T11-T12 by osteophytes. He noted, however, that there was no mention of myelomalacia, which would be consistent with spinal cord damage. In the absence of clinical data suggesting neurologic dysfunction, such findings are considered incidental findings of little importance. From this point on, the foundation for Dr. Bash's opinion erodes. The VHA urologist noted the literature heavily relied on by Dr. Bash not only involved patients with spinal cord injury but also those with the chronic presence of a Foley catheter-neither of which applies to the Veteran. Moreover, another critical element that minimizes the weight the Board accords Dr. Bash's opinion is the time when the Veteran manifested bladder symptoms. In his August 2009 report Dr. Bash notes the Veteran's self reported history of pre-cancer bladder symptoms. Yet, this assertion is not supported by Dr. Bradford's records. Citing the Veteran's self reported history, Dr. Bash notes the Veteran had bladder problems for 20 years-1976 to the 1997 timeframe, and that period significantly increased his risk for bladder cancer. Dr. Bash then chides the VHA specialists for not discussing that period alleging that they may not have had the claims file. The Board rejects the Veteran's recall on this matter. The combined records of Dr. Bradford and Dr. Scoles do not give any credence to these assertions. In fact, they record no report of any bladder symptomatology earlier than the mid-1990s. Dr. Bradford's note of August 1997 indicates the Veteran denied arthritis and constipation. The Veteran reported passage of small blood clots since his BCG treatments. He also reported a then current history of some hesitancy, frequency, and burning on urination, which had markedly improved after a regimen of Floxin. Dr. Bradford's examination of the Veteran's prostate revealed nodules on the right lateral aspect, lesser on the left. He noted the Veteran's prostate examination was normal in June 1996, and he noted if the nodule was a BCG nodule. There is absolutely no indication in Dr. Bradford's notes that the Veteran reported bladder symptomatology had existed over the prior 20 years. As a professionally trained urologist, the Board deems it highly doubtful that Dr. Bradford would not have inquired into or noted a significant earlier history of bladder dysfunction, to include urine retention. Throughout the extensive treatment of the Veteran's genitourinary problems, to include complaints of urine urgency and retention, the only link Dr. Bradford pondered was with the Veteran's BCG treatments for his bladder cancer. Further, the Veteran's benign prostate hypertrophy, chronic prostatitis-including the prospect of tubucular prostatitis, and its involvement is noted by both Dr. Scoles and Dr. Bradford. These recorded medical entries are consistent a with the VHA urologist's opinion that the Veteran's bladder symptoms were secondary to his benign prostate hypertrophy. Further, even if there were instances of retained urine residuals larger than 3 cc, the fact is the records do not show such symptomatology prior to the Veteran's diagnosis of bladder cancer. Dr. Bash's entire premise hinges on the formula of spinal cord injury plus urine retention equals bladder cancer. In light of the evidence showing that the Veteran did not present any bladder or urinary pathology for years prior to the diagnosis of cancer the Board finds Dr. Bash's formula not to apply in this case. As already found, the VHA specialists opined the Veteran did not sustain an in-service spinal cord injury. The Board finds their opinions persuasive for the reasons noted. Second, the preponderance of the evidence shows that the Veteran did not manifest urine urgency and retention until after the diagnosis of and treatment for bladder cancer. Dr. Bradford noted a normal prostate in June 1996, though there was an instance of prostatitis in 1996. The Veteran's prostate became symptomatic again in 1997 and became chronic afterwards. The Board has already discussed the issue of urine retention insofar as it relates to the Veteran's symptomatology. The final basis on which the Board finds Dr. Bash's opinion to be far less persuasive than the VHA urologist is that he proffered no comment whatsoever on the urologist's opinion that the most likely etiology for bladder cancer was the Veteran's smoking history-past and present, as set forth earlier, and not his 1973 in-service back injury. Neither did Dr. Bash comment on or contest the literature the specialist noted. Further, every VA examiner who examined the Veteran opined that, in the absence of evidence of spinal cord injury, there is no linkage between his low back injury and his development of bladder cancer. While it is not merely a matter of numbers, the VA examiners were neurologists. Dr. Bash has amassed a wealth of knowledge, but the underlying evidence of record is simply contrary to his opinion in this particular case. Thus, the Board finds that the preponderance of the evidence is against the claim. 38 C.F.R. §§ 3.303, 3.310. The benefit sought on appeal is denied. Bilateral Upper Extremity Weakness, Etc. The legal standard for service connection on a secondary basis set forth above is incorporated here by reference. Analysis The RO referred the claims file for a comprehensive review and nexus opinion as to whether the Veteran's claimed upper extremity disorders are causally linked to his service- connected low back disorder. The August 2005 spine examination report notes the examiner's comprehensive review of the claims file, including the Veteran's neurological examination of May 2004, and a spine examination of June 2005. The examiner noted the earlier examiners' opinion that the Veteran thoracolumbar degenerative disc disease was likely causally related to his 1973 in-service injury. The examiner also noted the Veteran's assertion of bilateral hand numbness, pain, and weakness, and that it was secondary to his service-connected low back disorder. The examiner noted that the prior noted examination reports noted no evidence of bilateral upper extremity dysfunction/abnormality. Further, the examiner noted, there was no anatomical basis that allowed her to draw a connection between upper extremity symptoms and a prior history of lumbar spine surgery. The Veteran's claimed upper extremity symptoms were found not to be due to his prior history of lumbar laminectomy and discectomy. To report or conclude otherwise would be speculative. The Board finds no evidence in the claims file that undermines or contradicts the examiner's opinion. Even Dr. Bash opines the Veteran's claimed symptoms are secondary to a cervical, rather than a lumbar, spine disorder. As noted in the Introduction, however, no issue of a cervical spine disorder is before the Board. Thus, the Board is constrained to fine the preponderance of the evidence is against the claim. 38 C.F.R. § 3.310. The benefit sought on appeal is denied. Right Lower Extremity Weakness, Numbness, and Pain. The August 2005 examination report notes the same examiner addressed this claim. She noted the Veteran's assertions of bilateral leg numbness, pain, and weakness. The examiner reviewed the earlier VA examination report and noted findings of intact deep tendon reflexes, and no objective evidence of lower extremity numbness or weakness on examination. The above opinion to the contrary, the September 2005 rating decision allowed service connection for left sided radiculopathy based on a January 2005 entry in the outpatient record of mild neurological deficits. The Board also notes an outpatient entry of September 2005 where the Veteran reported back pain that radiated into the left hip and lateral leg, to the heel, and that he had onset of milder symptoms on the right side. Examination, however, revealed normal muscle bulk and tone and muscle strength of 5/5 bilaterally throughout. Patellar reflexes were 2/4 bilaterally, and Achilles reflexes were 1/4 bilaterally. A finding of mild patchy hypalgesia was confined to the left. The Veteran's VA physician recommended a lumbar CT. The CT examination notes the Veteran's symptomatology was confined to the left. The June 2005 examination report notes that the splotchy areas of numbness were not consistent with any particular dermatome. Babinski's was also negative. The August 2005 examination report notes the examiner concluded the Veteran's subjective complaints of right-sided pain were likely secondary to radiating lumbar pain, as opposed to radiculopathy. At this juncture, the examiners' conclusions are consistent with the clinical findings-that is, the Veteran's associated radiculopathy is confined to his left side, which is consistent with the fact his laminectomy was on the left side. Thus, the Board finds at this stage that the benefit ought on appeal is denied. 38 C.F.R. §§ 3.303, 3.310. TDIU Claim Governing Law and Regulation A total disability rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service- connected disability, provided that the person has one service-connected disability ratable at 60 percent or more; or as a result of two or more service-connected disabilities, provided that the person has at least one disability ratable at 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of non-service connected disabilities or previous unemployability status will be disregarded where the above-stated percentages are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 4.16 (2009). During the period for which the Veteran seeks a TDIU, the only disability for which he was service connected were the manifestations of his low back disorder. The ratings assigned those manifestations did not meet the minimum requirements of 38 C.F.R. § 4.16. As a result, it is evident he did not meet the minimum total combined disability rating requirement for schedular consideration. It is VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the Veteran is unemployable due to the service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Therefore, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service connected condition and advancing age, which would justify a TDIU rating due solely to the service connected disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Extraschedular Criteria A TDIU is a form of increased rating claim. See Norris v. West, 12 Vet. App. 413, 421 (1999). In exceptional cases, where the rating schedule is deemed inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the applicable criteria, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Board is precluded from granting an increased rating on an extraschedular basis in the first instance. 38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board may, however, determine whether a particular claim merits submission for an extraschedular evaluation. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Further, where the RO has considered the issue of an extraschedular rating and determined it inapplicable, the Board is not specifically precluded from affirming a RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) for an extra-schedular rating. Bagwel, 9 Vet. App. at 339. Before the Board may refer a case for extraschedular consideration, however, there first must be a finding that the Veteran's disability picture is exceptional. To do so, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. See VAOPGCPREC No. 6-1996 (Aug. 16, 1996), 61 Fed. Reg. 66,749 (1996), para. 7 (when service-connected disability affects employment "in ways not contemplated by the rating schedule" § 3.321(b)(1) is applicable). See also Thun v. Peake, 22 Vet. App. 111 (2008). Analysis The Veteran's October 2005 Form 21-4148 noted he had only been able to maintain part-time employment since 2001. He referred to Dr. Bash's 2005 report as support. Dr. Bash's report incorporated the Veteran's reported symptoms. The symptoms the Veteran reported to Dr. Bash did not clearly delineate between those associated with his low back and those associated with his genitourinary problems, as the appellant stated that he would take off from work due to back pain and urinary bleeding, and he calculated he had taken off 103 days in 12 months due to his medical problems. At the hearing, the Veteran noted that part of the reason he was unable to get a job for five years was, once a medical examination determined he had bladder cancer, as well as bowel and urinary incontinence, his opportunity for employment essentially went away. See Board Transcript, p. 6. As held above, the Veteran is not service connected for the residuals of bladder cancer. Hence, that pathology may not be considered in evaluating any entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. Thus, the Veteran's claim for the affected period must be based solely on his low back disorder and associated left lower extremity weakness. While the Veteran may, and does, dispute the severity of his low back disorder and its current evaluation, the rating criteria fully describe the symptomatology and provide for rating it, to include for intervertebral disc syndrome-where applicable, including impact on employment. See 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5235 - 5243. Consequently, the Board is constrained to find the Veteran's low back disability picture is not exceptional when compared to other veterans who are subject to the schedular rating criteria for the same disability-neither in light of the evaluations available or its impact on his employment. In the absence of exceptional factors, the Board finds no basis for submission for consideration of a temporary TDIU on under extraschedular criteria. 38 C.F.R. §§ 3.321(b)(1), 4.16. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for bladder cancer residuals is denied. Entitlement to service connection for bilateral upper extremity weakness, numbness, and pain, is denied. Entitlement to service connection for right lower extremity weakness, numbness, and pain, is denied. Entitlement to a total disability evaluation based on individual unemployability due to service connected disorders due to service-connected disabilities is denied. REMAND As noted in the Introduction, the Board deems the Veteran's letter and Form 21-4148 received by the RO in late-October 2005 to be a Notice of Disagreement with the September 2005 rating decision determination that his low back disorder warranted a 20 percent rating, and his left lower extremity radiculopathy warranted an initial rating of 10 percent. In such cases, the appellate process has commenced and the Veteran is entitled to a statement of the case on the issue. See Manlicon v. West, 12 Vet. App. 238 (1999). Thus, those issues must be remanded to the RO for additional action. Accordingly, the case is REMANDED for the following action: The AMC/RO shall issue a statement of the case with regard to the issues of the evaluation of the lumbar post-operative laminectomy and the initial evaluation of the left lower extremity radiculopathy. If, and only if, the Veteran completes his appeal by filing a timely substantive appeal on the aforementioned issues should this claim be returned to the Board. 38 U.S.C.A. § 7104. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs