Citation Nr: 1112946 Decision Date: 04/01/11 Archive Date: 04/13/11 DOCKET NO. 08-22 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for bowel dysfunction as secondary to the service-connected low back disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, had active service from February 2001 to February 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2010, the Veteran testified at a Board personal hearing conducted before the undersigned Acting Veterans Law Judge at the Roanoke RO. A transcript of this hearing is of record. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The Veteran has a current diagnosis of bowel dysfunction. 3. The Veteran is service connected for lumbar spine disability. 4. The bowel dysfunction is proximately due to the service-connected lumbar spine disability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, bowel dysfunction is secondary to service-connected lumbar spine disability. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The claim of service connection for bowel dysfunction as secondary to the service-connected lumbar spine disability has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Bowel Dysfunction A review of the service treatment records show no evidence of complaints of or treatment for bowel dysfunction during service. The Veteran does not contend otherwise. Indeed, he asserts that his bowel dysfunction is the direct result of his service-connected lumbar spine disability. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. The Veteran has a current diagnosis of fecal incontinence and bowel dysfunction. In a December 2005 VA group practice note, the Veteran reported rectal pain with some rectal bleeding and alternating hard and soft stools, and was diagnosed with chronic bowel incontinence. In a February 2006 VA examination, the examiner reported the Veteran did have incontinence when he had loose stools. In a May 2006 private examination, the Veteran was diagnosed with urinary and fecal incontinence. The Veteran is service connected for a lumbar spine disability. Service connection for a lumbar spine disability was granted in a September 2004 rating decision of the Roanoke RO. The Board also finds that the evidence is in relative equipoise on the question of whether the Veteran's bowel dysfunction is proximately due to the service-connected lumbar spine disability. In the April 2007 VA internal medicine opinion, which weighs against the Veteran's claim, the VA examiner opined that the Veteran's bowel dysfunction was less likely than not related to his lumbar spine disability. The VA examiner reasoned that, because MRI results did not show nerve impingement or stenosis, the Veteran's bowel dysfunction was less likely than not related to his lumbar spine disability. In a June 2008 private opinion, which weighs in favor of the Veteran's claim, the private examiner opined that the Veteran's bowel dysfunction was a direct result of his (service-connected) lumbar spine disability. The private examiner reported that the Veteran's lumbar spine disability, specifically arachnoiditis, affected the nerves in the cauda equina. The private examiner reasoned that the nerves in the cauda equina control the activity of the bladder and bowel, which explained the Veteran's bowel dysfunction. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The negative April 2007 VA internal medicine opinion was reportedly based upon a claims file review and also provided sound reasons for the opinion. The June 2008 private audiological opinion supporting the Veteran's claim is competent and probative medical evidence because it is factually accurate, as it appears Dr. J. A. was informed of all relevant evidence in this case, fully articulated, and is supported by a sound reasoning for the conclusion. Based on this evidence, the Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's bowel dysfunction is related to his service-connected lumbar spine disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). For these reasons, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for bowel dysfunction as secondary to the service-connected low back disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bowel dysfunction is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs