Citation Nr: 1306109	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  11-02 671A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for urinary frequency, claimed as secondary to diabetes mellitus. 

(The issue of entitlement to a rating in excess of 20 percent for diabetes mellitus, Type II will be addressed in a separate decision)


REPRESENTATION

Appellant (the Veteran) is represented by: The American Legion


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active service from November 1968 to June 1971.  

This appeal comes before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of the RO in New Orleans, Louisiana.

In May 2011, the Board remanded this issue and the issue of entitlement to service connection for hyperlipidemia for issuance of a statement of the case, as the appeals had not yet been perfected.  The Veteran subsequently submitted a substantive appeal (VA Form 9) on which he specified that, of those two issues, he only wished to pursue entitlement to service connection for nocturia.  Accordingly, the appeal as to the issue of entitlement to service connection for hyperlipidemia is not in appellate status.  38 C.F.R. § 20.204(c).

On the VA Form 9, the Veteran checked a box indicating that he would like to attend a videoconference hearing on this issue; however, he withdrew that request in correspondence dated in March 2012.  There are no subsequent hearing requests regarding this issue.  

In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.  


FINDING OF FACT

The Veteran has nocturia and urinary frequency that are associated with his service-connected diabetes mellitus.  



CONCLUSION OF LAW

Urinary frequency is proximately due to or the result of the Veteran's service-connected diabetes mellitus.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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).  Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Service connection may also be established the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See also Allen v. Brown, 7 Vet. App.439, 448 (1995).  

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

Lay statements 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.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 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).  

The Veterans Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  

In essence, the Veteran asserts that his symptoms of urinary frequency and nocturia are proximately due to or a result of his service-connected diabetes mellitus.

In October 2008, the Veteran was examined ostensibly for heart symptoms; however, the examiner also conducted a genitourinary examination.  He complained of nocturia occurring two to three times each night.  He reported no incontinence, no urinary tract infections, and no history of nephritis.  He reported requiring no dilatations or drainage procedures.  He was found to have benign prostatic hypertrophy.  

A prostate examination revealed a slightly enlarged prostate.  The examiner also noted a finding of asymptomatic proteinuria.  The diagnosis was asymptomatic proteinuria, which the examiner opined was likely a result of type 2 diabetes mellitus.

A June 2009 addendum was provided by the October 2008 VA examiner to clarify his initial findings and opinion.  The examiner noted that the laboratory findings were indicative of diabetic nephropathy, silent stage.  The examiner clarified that asymptomatic proteinuria means diabetic nephropathy and/or chronic kidney disease.  The Veteran's complaints of nocturia were found to be a symptom of benign prostatic hypertrophy as opposed to diabetes mellitus.  

An August 2009 addendum acknowledges the October 2008 finding of elevated microalbumin.  It was noted that the diagnosis of asymptomatic proteinuria has the same meaning as diabetic nephropathy, and that the Veteran's complaints of urinary frequency and nocturia were symptom of diabetes.  

The Board notes that, in addition to diabetes mellitus, service connection is also in effect for diabetic nephropathy.  The Veteran is currently assigned a 0 percent rating for diabetic nephropathy under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7541 (2012).  That code directs to rate the disability as renal dysfunction.  The schedule for rating renal dysfunction under 38 C.F.R. § 4.115a (2012) is separate and distinct from the schedule for rating urinary frequency, and does not include symptoms such as urinary frequency.  

The Board also notes that, despite the conflicting opinions set out above, in the December 2009 rating decision, the RO specifically acknowledged the association between the complaints of urinary frequency and the Veteran's diabetes mellitus.  The RO found that "urinary frequency is a symptom of your type II diabetes mellitus and is encompassed in your 20 percent evaluation for type II diabetes mellitus."

In sum, there appears to be no real dispute as to whether urinary frequency is proximately due to or a result of the Veteran's diabetes mellitus.  The basis for the denial at the RO level is essentially the RO's finding that urinary frequency is already being compensated.  To the extent of any remaining doubt raised by the June 2009 opinion, such doubt is resolved in the Veteran's favor.  

Regarding the RO's determination that the symptoms of urinary frequency and nocturia were contemplated in the rating for diabetes mellitus, the Board refers to the criteria for rating diabetes mellitus under DC 7913 solely for the purpose of finding that those criteria do not mention urinary frequency.  Indeed, those criteria specify that compensable complications of diabetes are to be separately evaluated unless they are part of the criteria used to support a 100 percent evaluation.  Only noncompensable complications are to be considered part of the diabetic process.  

In this case, the Veteran's diabetes mellitus is not rated at 100 percent.  The issue of the appropriate rating for urinary frequency is not before the Board; however, the RO did not base its denial of service connection for urinary frequency on a finding that urinary frequency is noncompensable.  The Board simply notes that he has provided competent evidence of a compensable disability of urinary frequency.  An April 2009 primary care clinic notes reveals complaint of rising to urinate 2 to 4 times per night.  A December 2003 endocrinology note reveals a report of nocturia 2-3 times per night.  

Under the schedule for rating urinary frequency (38 C.F.R. § 4.115a) a daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating.  A daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent rating.  A daytime voiding interval between two and three hours, or; awakening to void two times per night warrants a 10 percent rating.  

Here, as discussed above, the Board finds that the evidence for and against the association between the Veteran's urinary frequency and his diabetes mellitus (as opposed to benign prostatic hypertrophy) is in approximate balance.  With resolution of all reasonable doubt in the Veteran's favor, the Board finds that urinary frequency is associated with the service-connected diabetes mellitus.  

The Board further finds that the current rating for diabetes mellitus does not encompass the Veteran's urinary frequency, and the rating schedule for diabetes mellitus directs that this disability should be separately rated.  To this extent, the appeal is granted.  As noted above, the Board makes no finding as to the appropriate rating for urinary frequency.  The RO will assign a rating as appropriate upon implementing the Board's decision.

Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  As the Board is granting service connection for a voiding dysfunction, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).


ORDER

Service connection for urinary frequency is granted.  



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs