Citation Nr: 1301288 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-19 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a genitourinary disability, variously claimed as urinary tract infection and a neurogenic bladder, to include urinary frequency. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1986 to January 1988. This matter initially to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) San Diego, California. In October 2011, a Travel Board hearing was held; a transcript has been associated with the claims folder. The Board observes that it has considered documents included in the Virtual VA system, which were reviewed for the most recent supplemental statement of the case. The issue of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence is against finding that a genitourinary disability is related to service or events therein. CONCLUSION OF LAW The criteria for service connection for a genitourinary disability have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claim, has notified him of the information and evidence necessary to substantiate the claim, and has fully disclosed VA's duties to assist him. In January 2009, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the May 2009 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The Board is mindful of its heightened obligation where, as here, the Veteran's separation examination is absent from the record. His DD 214 reveals his separation was based on a disability that existed prior to service that was not aggravated according to the medical board. Thus, a separation examination may not have been indicated. In any event, the determination reached will be based on evaluation of the evidence on file. He has also been afforded VA medical examination in April 2012. The Board notes that the VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. In March and April 2011 the Veteran was informed that his service separation examination was unavailable and given the opportunity to submit additional records. See McCormick v. Gober, 14 Vet. App. 39 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In a case such as this, where service treatment records are unavailable through no fault of the Veteran, the Board is mindful of the heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare, 1 Vet. App. at 367; Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. Legal Criteria As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy, and does not appear to contend otherwise. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Genitourinary Disability The Veteran seeks service connection for a genitourinary disability. He contends that he had urinary frequency in service and has experienced continuity of symptomatology since then. Service enlistment report of medical history shows that in October 1986 the Veteran did not experience urinary frequency or painful urination. As the Veteran has emphasized, and the RO has documented, a separation examination is not of record. Review of the service treatment records reveals that the Veteran was seen during service for multiple complaints. At various times he was seen for sinus complaints, gastrointestinal complaints, shin and foot problems, residuals of a motor vehicle accident, and acne. He received extensive evaluation for flat feet. All records are negative for any genitourinary complaints. Appellant filed a claim for VA benefits in 1988. He filed for other disorders than a genitourinary disorder. There were no pertinent complaints made in association with that claim. Private treatment records on file reveal that when seen in February 2002 no pertinent complaints were recorded. He did complain of urinary frequency in November 2002 and it appears that medication was prescribed. In November and December 2007, when seen for complaints involving the knee, he complained of nocturia. His medication was to be adjusted. Private medical records show that at a December 2007 doctor's visit in regards to another issue, the Veteran described that he had to void anywhere from 5 to 10 times nightly, and also frequently voided throughout the day. A September 2009, letter from K. Warm, M.D., indicated that the Veteran had been evaluated by urological specialists for urethral scarring, which had caused discomfort and two surgical interventions. Dr. Warm indicated that he and the urologist were of the opinion that the Veteran's condition was as likely as not linked to service. He explained that the Veteran had slept in the same proximity as an individual diagnosed with tuberculosis, and that tubercular infection had been known to cause urethral stricture and scarring. Treatment records dated in 2009 from G. N. Riffle, II, M.D., indicate that the Veteran reported experiencing extreme urinary frequency during the night and day, with nocturia times five. Testing to rule out bladder obstruction and/or neurogenic vessical dysfunction included uroflowmetry and transabdominal ultrasound of the urinary bladder and prostate. Impression was of diminished voiding flow rate with incomplete bladder evacuation. The Veteran denied a history of urinary tract infections. He reported having undergone a previous urethral meatotomy and elective vasectomy. Impression was of bladder outlet obstruction. He elected to undergo a transurethral resection of the vesicle neck to improve voiding function. Following uneventful surgical treatment, the Veteran's final diagnosis was of bladder neck obstruction. Laboratory results showed benign fibromuscular bladder tissue with unremarkable urothelium. Treatment records from Dr. Warm show that in December 2008, reveal a urology history of nocturia, 3 to 5 times a night for the last 5 years. He reported no painful urination or urgency, and no loss of control. In March 2009 the Veteran reported experiencing frequent urination, to include 30 times a day and 5 to 6 times a night. The Veteran continued to experience frequency of urination and dribbling even following surgical treatment. The Veteran was on various medications to treat his nocturia. In February 2009 the Veteran indicated that he dealt with his ailments for years without having medical insurance. In May 2010 the Veteran reported that he had been placed in a squad bay with other Marines who had been identified as having tuberculosis, and that he experienced his urinary condition as a direct consequence. He also reported that he experienced urinary incontinence while in service, but was too embarrassed to seek treatment for it. VA treatment records from June 2010 show that the Veteran reported experiencing severe urinary frequency dating to 1988 when he noticed increasing nocturia, followed by urinary frequency, all in his early 20s. In October 2010 the Veteran reported that he experienced frequency, nocturia, and suprapubic pain if he waited to urinate, all since his early 20s. The Veteran reported carrying urinals in his car due to urge incontinence. November 2010 treatment note includes a pathology report of a urine specimen taken to evaluate the Veteran's urinary frequency, which was negative for malignant cells. In December 2010 the Veteran again reported experiencing urinary frequency, and cytologies were negative. Assessment was of interstitial cystitis. March 2011 treatment notes referenced detrusor overactivity, possible interstitial cystitis and urinary frequency. In an October 2011 Travel Board hearing, the Veteran discussed how within the time he was in service he began using the bathroom frequently, approximately 30 times daily and 5 to 10 times nightly. He reported that he was embarrassed to ask about his urinary frequency and determine what caused it. The Veteran reported that it took approximately ten years following service before he sought medical treatment, and that since that time he had been on numerous medications. The Veteran described his urinary problems as consuming his life, even to the point of driving with buckets and "piss jugs" in his car. Pursuant to a February 2012 Board remand, the Veteran was afforded a VA examination in April 2012. The report indicated that the Veteran had been diagnosed as having urinary frequency/urgency reportedly since 1988. His medical history was summarized, per the Veteran, as involving increased urgency to urinate since 1987. The Veteran reported that in approximately 2001 he was urinating up to 20 times per day, experiencing increased urgency, and nocturia 5 to 10 times a night. The Veteran indicated that he had undergone a meatotomy, transurethral resection of his bladder neck, and vasectomy. Urodynamic studies from 2011 were normal, and urine cytologies and cysto were negative. The Veteran reported that he had not received continuous care, but had seen various urologists. The examiner indicated that VA urologist had been unable to determine the etiology of the Veteran's increased urination with urgency; and the Veteran was prescribed medications with limited effectiveness. The examiner indicated that the Veteran experienced voiding dysfunction, which caused urine leakage requiring absorbent material. In addition, there was increased urinary frequency with daytime voiding interval between one and two hours, and nighttime awakening to void. There were no signs or symptoms of obstructed voiding. The Veteran had a neurogenic or severely dysfunctional bladder, characterized by urinary frequency and urgency. The examiner indicated that diagnostic testing was significant, and highlighted the Veteran's normal urodynamic studies in 2011, negative urine cytologies, cysto, and computed tomography of the abdomen. The examiner opined that the Veteran's genitourinary condition was less likely than not caused by service. He reasoned that the claims file did not include documentation of genitourinary symptoms in service between 1986 and 1988. He indicated that the earliest documented genitourinary issues were in 2007 when the Veteran reported to Dr. Velasquez that he was voiding multiple times nightly. The examiner reviewed the Veteran's medical history as discussed above, to include Dr. Warm's letter indicating a possible positive link between genitourinary symptoms and exposure to tuberculosis, but countered this by reasoning that there was not documentary evidence available in the claims folder to support the Veteran's exposure to tuberculosis. The examiner indicated that according to a VA urologist the VA did not have an etiology for the Veteran's urinary frequency, but that it did not seem to be due to any malignancy or other pathology. The Board acknowledges the Veteran's contentions, cognizant that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Although the Veteran is competent to attest to his symptomatology, his competency is distinguished from weight and credibility, which is a factual determination regarding his assertions, and goes to the probative value of the evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board finds the Veteran's contentions regarding continuity of symptomatology since service are not credible. There is no contemporaneous evidence to support such contentions. Further, medical documentation from 2002 provides the first instance of genitourinary complaints. Although the Veteran later reported experiencing early symptoms, his reports are inconsistent not only regarding the date of onset, but also the nature of his urinary frequency and nocturia. In addition, although the Veteran has attempted to explain why he did not seek treatment, explaining in part that as a Marine he did not care to report the symptoms, his service treatment records show that he availed himself of medical care during service, such that his explanation is not credible. The service treatment records show treatment for multiple disorders, and never is urinary frequency mentioned. Moreover, shortly after service he filed a claim for VA benefits for other disorders and made no reference to any urinary problems. Further hurting the Veteran's credibility of pathology since service is that when seen in 2008 he gave a history of nocturia for about 5 years. This would be essentially with the first findings of complaints in 2002. Nothing in the objective record suggests a problem with urinary pathology prior to that date. After careful review of the entirety of the record, the Board finds that service connection for a genitourinary disability is not warranted. The April 2012 examiner's opinion found that the Veteran's urinary frequency and urgency was less likely than not to have occurred in or have been caused by the Veteran's service. Further, the opinion explains that the earliest documentation of genitourinary issues was years postservice, and that the opinions regarding a possible connection between tuberculosis exposure and interstitial cystitis were not supported. Significantly, it has never been shown that the Veteran has ever tested positive for any tuberculosis exposure. To the extent that the Veteran's statements suggest continuity of symptomatology or a nexus to service, the Board finds that the examiner's opinion is entitled to greater weight given the examiner's medical expertise in such a complex field as genitourinary conditions in providing the reasoned opinion, which considered the Veteran's reported symptomatology. Further, it is noted that at the time of filing his original claim in 1988, there was no mention of urinary frequency or genitourinary issues. As such, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a genitourinary disability is denied. REMAND The Veteran has contended that he incurred a right knee disability in service, for which he did not seek treatment for many years due to not having insurance. Service treatment records, which do not include a separation examination, do not contain any reports regarding a right knee injury during service. He was seen for shin splints on occasion. Private treatment records show that in 2004 the Veteran was diagnosed as having collateral ligament strain. Then, in 2007 the Veteran bumped his right knee while walking to the bathroom at night, and was diagnosed as having a right knee contusion. December 2008 right knee X-ray showed no acute findings. There is a September 2009 opinion from Dr. Warm that the Veteran's right knee pain limited his activity, and that it was as likely as not related to injuries incurred during service, in particular when the Veteran tripped and fell while conducting a military exercise with a fully loaded pack. At his October 2011 hearing the Veteran indicated that while performing exercises at Camp Pendleton, he was running down a hill and upon catching his foot in a hole fell with his backpack on. The Veteran reported that following that incident he used Aspirin and ice packs, but did not seek medical treatment, which was frowned upon among Marines. The Veteran reported that following service he did not seek treatment because he lacked medical insurance. He reported that he had, however, received two cortisone shots in the knee from Dr. Warm. The Veteran indicated that he experienced right knee instability, and was cautious in his activities, such that he did not run. Pursuant to February 2012 Board remand directives, the Veteran was afforded a VA examination for his right knee in April 2012. The Veteran's history of patellofemoral pain syndrome and patellofemoral hypermobility was reviewed. The Veteran reported that he had fallen during training in January 1988, while running down a hill with a heavy backpack. The Veteran indicated that when he caught his foot in a hole and was thrown forward, his right knee immediately became painful, and started swelling. The Veteran indicated that he walked slowly back to base and treated his knee with ice and Ibuprofen, but refused to seek medical attention. The Veteran reported that he did not run during the remainder of his replacement, and that he used a slip-on elastic knee support. The examiner reviewed the Veteran's later symptomatology to include pain and difficulty with stairs or when carrying heavy items. Diagnostic testing revealed X-ray evidence of patellar subluxation. The examiner opined that the Veteran's knee disability was "at least as likely as not unrelated to his military service," which appears to reflect there is evidence of equal weight for and against service connection. The report, however, also contained rationale that appears to indicate that a knee disability is unrelated to active service. Specifically, the examiner focused on the absence of documentation of a knee injury in service, and the gap from service to the earliest treatment in 2004 for a right knee problem. As such, the Board finds that the opinion obtained by the VA examiner is not sufficient for entering a decision, and remand for another VA opinion or clarification is necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Stegall v. West, 11 Vet. App. 268 (1998). For the purposes of the remand, the examiner is requested to provide an opinion wherein he assumes that the Veteran's reported in-service fall occurred, regardless of lack of service treatment record documentation. The reasoning should match the opinion provided. If the examiner concludes that the report of the fall is not credible, he/she should so indicate and explain why. In addition, the Board observes that in the October 2012 supplemental statement of the case it was indicated that VA treatment records through September 2012 were reviewed electronically, whereas the Board's review of Virtual VA shows VA treatment records only through June 2012. As such, on remand, VA treatment records since June 2012 should be associated with the claims folder. Id. Accordingly, the case is REMANDED for the following action: 1. VA treatment records since June 2012 should be obtained and associated with the claims folder or Virtual VA eFolder. 2. Following receipt of outstanding available treatment records, the file should be returned to the VA medical examiner for the purpose of determining the etiology of his right knee disability, and obtaining a clarification. The examiner should be asked to clarify the opinion as to whether the pathology found is at least as likely as not (50 percent probability or more) related to service. If that examiner is unavailable, records should be sent to a similarly situated examiner to obtain the requested opinion. If it is determined that an additional examination is needed, such examination should be conducted. All necessary diagnostic tests, as determined by the examiner, should be completed and all pertinent symptomatology and findings should be reported in detail. As noted, if needed, after fully examining the Veteran and reviewing his medical history, the examiner should state whether it is at least as likely as not (a 50 percent probability or more) that any current right knee disability is the result of, or is otherwise related to the Veteran's service. The examiner should provide a rationale for all conclusions reached. 3. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After the development requested, review the examination report to ensure that it is in compliance with the directives of this REMAND. If the report is deficient in any manner, implement corrective procedures. 5. After undertaking any additional development deemed appropriate, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs