Citation Nr: 1300720 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-20 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a bladder/urinary disability on a direct basis and as secondary to service-connected disability or disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from December 1953 to December 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was originally before the Board in July 2011, at which time it was remanded for additional development of the record. In September 2012, the Board concluded new and material evidence had been received, and reopened the Veteran's claim for service connection for a bladder/urinary disability. Additional development was again requested. The case is again before the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection is in effect for residuals of thoracentesis and fluid on the lungs, evaluated as 30 percent disabling; ventral hernia, evaluated as 20 percent disabling; residuals of a scar, status post appendectomy, evaluated as 10 percent disabling; and scar tissue associated with ventral hernia, evaluated as noncompensable. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a bladder/urinary disability that is related to service, or that is etiologically related to his service-connected disabilities. CONCLUSION OF LAW A bladder/urinary disability was not incurred in or aggravated by active service, nor is it proximately due to, the result of, or aggravated by service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). By letter dated October 2007, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence were needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how the VA assigns a disability rating and an effective date, and the type of evidence which impacts such. Although VCAA notice was not completed prior to the initial adjudication of the claim, the Veteran has not been prejudiced thereby. In this regard, the Board notes that the claim was readjudicated following completion of the VCAA notice. Mayfield, 444 F.3d 1328; Conway, 353 F.3d at 1374. The Board notes the Veteran also claims service connection is warranted on a secondary basis. In this regard, the Board acknowledges he has not received specific VCAA notice regarding the requirements for secondary service connection. However, in light of his arguments both in writing and at the April 2011 Board hearing, it is clear the Veteran has actual knowledge of the criteria for service connection on a secondary basis and, accordingly, he will not be prejudiced by the Board's adjudication of this matter. Duty to Assist The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private and VA medical records, the reports of VA examinations, and the testimony of the Veteran at a hearing before the undersigned. It is noted that in Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the (Acting) Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the April 2011 hearing, the undersigned fully explained the issue involved. See transcript on page 2. While the undersigned did not suggest the submission of evidence that may have been overlooked, the Board finds there was no prejudice, as the Veteran's claim at that time was whether new and material evidence had been submitted to reopen the claim for service connection for a bladder disability, which claim was successfully reopened after the April 2011 hearing. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A VA examination was conducted, and an opinion regarding the etiology of the Veteran's bladder/urinary disability has been obtained. The VA opinion was rendered by a medical professional who reviewed the claims folder, clinically evaluated the Veteran, and provided a factual foundation for the conclusions that were reached. Therefore, the Board finds that the opinion is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As discussed above, the appellant was notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and providing testimony. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 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). VA amended 38 C.F.R. § 3.310, the regulation concerning secondary service connection. The intent was to conform the regulation to the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995), which clarified the circumstances under which a veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." The former paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. In order to prevail on the issue of service connection on a direct-incurrence basis there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). The Veteran has been granted service connection for residuals of thoracentesis and fluid on the lungs, evaluated as 30 percent disabling; ventral hernia, evaluated as 20 percent disabling; residuals of a scar, status post appendectomy, evaluated as 10 percent disabling; and scar tissue associated with ventral hernia, evaluated as noncompensable. The service treatment records disclose the Veteran was hospitalized beginning in July 1954 with cramp-like pains in the abdomen. An appendectomy was performed, but he had a complicated recovery. Later in July 1954, it was reported he had some pain on urination with slight burning. He subsequently underwent a laparotomy, and a subphrenic abscess was drained. An intravenous pyelogram showed the ureter and bladder appeared normal. A kidney, ureter and bladder study demonstrated no evidence of renal or ureteral calculi. The diagnoses were acute appendicitis, subphrenic abscess, acute pleurisy and malnutrition. It was indicated the Veteran was asymptomatic on discharge. On the separation examination in December 1955, the genitourinary system was evaluated as normal. The Veteran was examined for the Army in December 1959. A clinical evaluation of the genitourinary system was normal. A private physician listed the Veteran's abnormal findings in April 1963. Enlarged bilateral inguinal rings were noted. The Veteran was examined by the VA in May 1963. An examination of the genitourinary system was normal. On VA surgical examination in April 1968, it was noted both inguinal rings were dilated with impulses on coughing. A CT of the pelvis at a private facility in August 2004 showed the bladder appeared thick walled for a degree of distension. Private medical records show the Veteran was seen in November 2004. It was noted he had been evaluated over the last couple of months for abdominal pain in the suprapubic area. He had some suprapubic pain in the bladder area that was intermittent in nature. The impression was abdominal pain of unclear etiology. The examiner stated that the thick-walled bladder probably was secondary to some bladder outlet obstruction and mild prostatic hypertrophy, but no pathological abnormality was noted. In a statement dated September 2008, a private physician related the Veteran had been a patient of his for many years. He noted the Veteran had always had problems with his abdomen and digestion. He related the Veteran had a ruptured appendix and drainage of a subphrenic abscess in service. The physician did not mention any urinary or bladder symptoms. VA outpatient treatment records disclose the Veteran was seen in July 2008. He had no new complaints and it was indicated he had experienced chronic pain in his abdomen and suprapubic area ever since a complicated appendicitis and peritonitis in service. It was further indicated he had been evaluated by gastroenterologists and urologists and was told nothing could be done. The Veteran was afforded a VA genitourinary examination in March 2010. The examiner noted she reviewed the claims folder. She indicated that during service, the Veteran had an indwelling urinary bladder catheter. It was reported he had chronic suprapubic pain. The diagnosis was bladder dystonia. The examiner stated she could not resolve the question of whether the Veteran's bladder problems were related to the appendectomy in service. She commented that while the Veteran had an indwelling catheter for three months in service, and that this can cause irritation of the blackout, this occurred 55 years ago. There was no support of current medical records or other documents of pain over the past 55 years. There was some urology report, but not directly after service. She could not swear the two events are related. However, it would be mere speculation without the addition of medical records from private physicians for the same complaints sometime in the mid to late 1950's, 1960's, 1970's or 1980's. The Veteran was again examined by the VA in October 2012. The examiner noted he reviewed the claims folder. The diagnosis was prostatic hypertrophy with lower urinary tract symptoms. The Veteran indicated a private urologist had diagnosed urinary retention. The examiner concluded it was less likely than not that the Veteran's condition was proximately due to or the result of the Veteran's service-connected disability. He said that based on a review of the records, including examinations in 1955, 1959, 1963 and 1968, as well as a review of current medical literature, a nexus could not be established connecting these issues to service, to include the 1954 appendectomy. In addition, he opined there was no evidence indicating potential causation or aggravation of the Veteran's current urinary tract symptoms/diagnoses by any of his service-connected issues, including his ventral hernia. The examiner observed the Veteran denied specific objective findings that did not correspond to his view of the condition. The Veteran persisted in his belief that the bladder wall thickening was a residual of the abdominal surgeries in service, which the examiner stated was medically unlikely. The examiner noted that when questioned specifically about his urinary tract symptoms, the Veteran's responses were either in the negative or vague. The Board acknowledges the service treatment records contain one reference to urinary complaints, but no specific findings were recorded, and there is no clinical evidence of any bladder or urinary disorder for many years after service. The Veteran's main argument, however, is that his bladder/urinary disability is related to the appendectomy and its complications in service. There is no objective evidence supporting this claim. The Board concedes the VA examiner noted in March 2010 that the indwelling catheter can cause bladder irritation. She noted at that time that this had occurred more than five decades ago. As noted above, following the most recent VA examination, the examiner insisted there was no relationship between the Veteran's current bladder/urinary symptoms and any incident in service, to include the appendectomy. He also commented that the Veteran's service-connected ventral hernia did not cause or aggravate any bladder/urinary disorder. The Board also acknowledges the assertions of the Veteran that his bladder/urinary disorder is related to service. However, as a lay person, he is not competent to diagnose any such disability, or render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Although the Veteran is competent to testify as to the fact he has a bladder condition, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the Veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnosis or causation competent. The competent medical opinion of record fails to attribute the Veteran's bladder/urinary disability to service. The Board concludes, therefore, that the medical findings are of greater probative value than the Veteran's allegations regarding the etiology of a bladder/urinary disability. Accordingly, the Board finds the preponderance of the evidence is against the claim for service connection for a bladder/urinary disability, to include on a secondary basis. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a bladder/urinary disability on a direct basis and as secondary to service-connected disability or disabilities is denied. ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs