Citation Nr: 1315516 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-06 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bladder disorder, including disability manifested by blood in the urine. 2. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty for training from June to September 1983, and from March to July 1999, and active duty from March 2004 to May 2006. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Board granted service connection for a traumatic brain injury and remanded the remaining issues for further development. In April 2011, the Veteran testified at a Board hearing at the RO. A transcript of the hearing is associated with the claims file. The Acting Veterans Law Judge (AVLJ) that presided over that hearing is no longer employed by the Board. The Veteran was sent a letter in September 2012 in which he was given the option of testifying at another hearing. Pursuant to the Veteran's timely reply, he was scheduled for and testified at a Board hearing before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is also associated with the claims file. During the hearing, he submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The additional documents contained in the paperless file, include the hearing transcript, were reviewed in conjunction with this appeal. FINDINGS OF FACT 1. The Veteran does not have a bladder disorder related to his military service. 2. A left shoulder disorder is not related to the Veteran's military service, and has not been caused or made worse by his service connected right shoulder disability. CONCLUSIONS OF LAW 1. The Veteran does not have a bladder disorder that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2012). 2. The Veteran does not have a left shoulder disability that is the result of disease or injury incurred in or aggravated by active military service; a left shoulder disorder is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.3.04, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in September 2007 and April 2008 that provided information as to what evidence was required to substantiate the bladder disorder and left shoulder disorder claims, respectively, and of the division of responsibilities between VA and a claimant in developing an appeal. These letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a March 2013 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's September 2011 remand, VA obtained additional VA treatment records and associated them with the claims folder. VA also sent the Veteran additional VCAA-compliant notice explaining the requirements for establishing service connection for a left shoulder disorder on a secondary basis in a September 2011 letter. VA then provided the Veteran with medical examinations in October 2011. These examinations contained a review of the objective evidence of record as well as the Veteran's subjective complaints. Moreover, the VA examiners performed clinical evaluations and offered opinions as to the nature of the claimed disabilities, accompanied by rationale. The issue of secondary service connection was addressed in an addendum opinion in May 2012, which was likewise accompanied by rationale. Therefore, these examinations are adequate for VA purposes. Thus VA has complied with the September 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Bladder Disorder In order to prevail on the issue of service connection, there must be competent and credible 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 generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). This current disability requirement can be established by showing that the Veteran had the claimed disability either at the time a claim for VA disability compensation was filed or at some time during the pendency of that claim. See McLain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the record shows a diagnosis of overactive bladder during the claim period. In June 2006, prior to the Veteran's claim, records from a military hospital show a finding of blood in his urine. These records do not contain a related diagnosis. Instead, the record notes that the Veteran was called and told that this could be due to an elevated specific gravity or dehydration. The Veteran underwent a VA examination in February 2008 for hematuria (blood in urine). At that time the Veteran's frequent urination during the day was noted but no diagnosis of hematuria was given because no pathology was present. Additionally, the record shows a diagnosis of prostatitis in 2006, which was treated and resolved prior to the Veteran's August 2007 claim. Indeed, at the time of his May 2007 VA treatment record, shortly before he filed his claim, the Veteran specifically denied urinary symptoms including urgency and frequency. No hematuria was found at that time. As such, the current disability requirement is met with regard to the disability of overactive bladder. With regard to the in-service injury, the Board notes that the Veteran voiced concerns with his bladder in his May 2006 Report of Medical Assessment. In his March 2013 testimony, the Veteran stated that his symptom of frequent urination began in service, but he had originally attributed it to the large amounts of water he was drinking at the time. Likewise, the Veteran has noted exposure to environmental hazards in service. His service record reflect some exposure to environmental hazards. See Potentially Hazardous Chemical Exposure Memorandum dated July 2004 and Preventative Medicine Inspection of Military Training Base An Numaniyah Memorandum dated August 2004. Additionally, the record established that the Veteran sustained a traumatic brain injury in combat during service. Thus, the in-service occurrence and injury requirement are satisfied with regard to these incidents. The remaining question for consideration is whether the Veteran's overactive bladder disorder began during or was caused by the Veteran's military service. The December 2008 VA urology record to which the Veteran referred in his April 2011 hearing testimony states "it is impossible to determine the exact etiology [of the irritative voiding complaints] but it could be idiopathic, secondary to [traumatic brain injury] or unidentified occupational exposure." While this indication of a possible association was sufficient to trigger VA's duty to provide an examination, it is not competent medical evidence upon which service connection can be granted. See 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). An October 2011 VA examiner opined that it was less likely than not that the Veteran's overactive bladder was caused by or the result of in-service illness, injury, or event. In providing a rationale for this opinion, the examiner noted that the Veteran had previously been diagnosed with and treated for prostatitis due to his bladder symptoms noted during service. At the time of the examination, the Veteran no longer had prostatitis. The more recent disorder of overactive bladder was first documented in November 2007, after the Veteran's separation from service. No other structural or physiological explanation for the Veteran's symptoms was found. While the examiner listed several types of injuries, including spinal cord injuries, that could cause overactive bladder, this list did not include traumatic brain injury. Pathology for overactive bladder could not be established. The record does not contain a positive medical nexus opinion. The Veteran himself believes his overactive bladder was due to either his military service or his service-connected right shoulder disability. In this regard, the Board acknowledges the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The medical opinion that was based on review of the record and included explanation regarding the Veteran's idiopathic bladder problem is persuasive. It has not been refuted with competent medical evidence as equally persuasive. Therefore, service connection is not warranted. Based on the above, the claim of service connection for a bladder disorder must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not help the claimant. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Left Shoulder Disorder The Veteran's left shoulder disorder was diagnosed as left shoulder enthesopathy in December 2007. See also October 2011 VA examination. Thus, the current disability requirement is satisfied. In his March 2008 claim, the Veteran stated that he felt he had injured his left shoulder during service due to carrying a pack. In June 2008, the Veteran related this disability to pull-ups during his service in the Marine Corps. See also December 2008 Statement. In his March 2013 testimony, the Veteran stated that his left shoulder pain began in service during his deployment to Iraq in 2004. Thus, the in-service incident requirement is satisfied. The remaining question for consideration is whether the Veteran's left shoulder disorder began during or was caused by the Veteran's military service. The October 2011 VA examiner found that the Veteran's left shoulder disorder was less likely as not caused by or the result of an in-service illness, injury, or event, noting the lack of documented complaints of left shoulder symptoms until December 2007. The record does not contain a positive medical nexus opinion to refute this opinion. Thus direct service connection is not established. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The Veteran has claimed service connection for his left shoulder disorder as secondary to his right shoulder disability. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As noted above, the Veteran has a current diagnosis of left shoulder enthesopathy. Additionally, he is currently service connected for right shoulder tendonitis. Thus, the first two requirements for secondary service connection have been satisfied. The remaining question is whether the record contains medical nexus evidence establishing a connection between the service-connected right shoulder disability and the current left shoulder disorder. In this regard, the VA examiner in her May 2012 addendum opinion found that the Veteran's left shoulder disorder was not caused by his service connected right shoulder disability. In the accompanying rationale, this examiner noted that the Veteran's subjective reports of using his left arm more because he favored his service-connected right shoulder, but noted that there was no objective evidence that this was the case. Moreover, she found that "it is not the experience of this physician that favoring of one upper extremity over the other leads to significant pathology in the opposite joint. This opinion is uncontradicted in the record. The Veteran himself believes his left shoulder disorder was due to either his military service or his service-connected right shoulder disability. In this regard, the Board acknowledges the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Therefore, secondary service connection is not warranted. In short, for reasons expressed immediately above, the claim of service connection for left shoulder disorder must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not helpful to the claimant. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER Service connection for a bladder disorder, including disability manifested by blood in the urine, is denied. Service connection for a left shoulder disorder is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs