Citation Nr: 1317495 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 06-02 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a separate disability rating for urinary incontinence as a component of service-connected lumbosacral pain. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970 and from November 1985 to December 1987. His military decorations include the Combat Infantryman Badge, the Vietnam Service Medal, the Air Medal, the Army Commendation Medal, and the Parachutist Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In November 2005 and July 2007, the Veteran and his spouse testified at a personal hearing before an RO Hearing Officer. In March 2010, the Veteran and his spouse testified at a personal hearing before the undersigned Veterans Law Judge. Transcripts of those hearings have been associated with the claims file. In January 2012 and in October 2012, the Board remanded this matter for additional actions. FINDINGS OF FACT The probative evidence as to whether the Veteran has a separate urinary condition associated with his service-connected lumbosacral pain disability weighs against the claim. CONCLUSION OF LAW The criteria for a separate disability rating for urinary incontinence as associated with the service-connected lumbosacral pain have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 4.71a, Diagnostic Codes 5235 to 5243, Note (1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in July 2004, July 2008, and October 2010. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 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, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent February 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations in September 2009, in February 2012 and in January 2013, along with a medical opinion. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when assigning a disability rating. 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). This case comes before the Board, in part, on a claim for an increased evaluation for a lumbar spine disability. As such, the Board must determine whether there is any other basis upon which an increased evaluation may be assignable in addition to the orthopedic manifestations, in this case, as to neurological manifestations specific to findings of bladder impairment. In this regard, except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994). In rating spinal disabilities, any associated objective neurologic abnormalities, to specifically include bladder and bowel impairment, are to be rated separately. 68 Fed. Reg. 51,454, 51,456 (codified at 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5235 to 5243, Note (1)). Potentially relevant diagnostic codes to rate the neurologic manifestations are located at 38 C.F.R. § 4.115a (Ratings of the Genitourinary System) and 38 C.F.R. § 4.114 (Digestive System). With respect to bladder impairment, 38 C.F.R. § 4.115a provides evaluations based on genitourinary symptoms, including voiding dysfunction, urinary frequency, obstructed voiding, urinary tract infection, and renal dysfunction. In this case, the evidence of record shows that during VA treatment in November 2008, the Veteran was noted to have urinary obstruction and hesitancy that was attributed at the time to non-service-connected prostatism. A September 2009 VA examination report also linked occasional urinary obstruction to benign prostatic hypertrophy, but also noted that the Veteran experienced urinary incontinence associated with his degenerative arthritis of his lumbar spine. In January 2012 and again in October 2012, the Board determined that in prior rating decisions and supplemental statements of the case, the RO had not specifically considered the rating schedule in 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1), which makes provision for rating associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Such consideration was required of the RO before the Board could consider this matter. A February 2012 VA spine examination report reflects that the VA examiner indicated that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). A January 2013 VA examination report reflects that the claims file was reviewed and a physical examination was performed. The VA examiner noted that the Veteran had been diagnosed with a urinary tract condition of the bladder or urethra in November 2008. The diagnosis was benign prostatic hyperplasia (BPH). The Veteran reported that his urinary symptom began a few years earlier, he believes in 2009. The Veteran stated this was when he first noticed "loss of control" over his urine and "difficulty starting his stream" of urine. When asked what he was diagnosed with, the Veteran stated "flaccid bladder". The Veteran also stated that he was diagnosed some time ago with an enlarged prostate and he takes medications for this condition. Currently, the Veteran reported he had a urinary tract infection (UTI) and was on Cipro. Due to having to catherize himself many times a day he gets UTIs about three to four times a year. The Veteran stated that he began the straight catheters in 2009. The VA examiner determined that the Veteran had a voiding function etiologically related to his enlarged prostate gland, BPH. The VA examiner also determined that the Veteran had a history of recurrent symptomatic bladder or urethral infections etiologically related to having to straight cath himself multiple times a day. The VA examiner opined that the Veteran's urinary condition was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected condition. The rationale provided was that the Veteran's report of his urinary conditions are related to his BPH. His reported onset symptoms are typical of BPH. He does not have any radiographic evidence or MRI confirming any disc bulging or herniation that would affect the appropriate dermatones that would account for bladder dysfunction, specifically the S3 region. Thus it is not likely secondary to his service-connected back condition. The VA examiner further opined that the Veteran has age related symptoms of BPH. There is no documentation to support a neurogenic bladder secondary to his service-connected back conditions, specifically a low back disability. His current UTI and prior UTIs are a direct result/complication of his self catheterizations. The more times he is catheterized, the more likely the chance of introducing bacteria to the bladder/urinary tract. It is the Board's duty to assess the credibility and probative value of evidence. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992)). Moreover, providing that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429 (1995). With any piece of evidence, the credibility and weight to be assigned to the opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In light of the above, the Board finds that the preponderance of the evidence is against a finding that a separate disability rating is warranted for neurologic disability, specifically bladder impairment. In this regard the probative medical evidence does not demonstrate that the Veteran suffers from a separate neurological disability. Although the September 2009 VA examiner noted that the Veteran experienced urinary incontinence associated with his degenerative arthritis of his lumbar spine, no basis for such conclusion was provided. Furthermore, the examiner also linked occasional urinary obstruction to the Veteran's benign prostatic hypertrophy. Thus, the VA examiner provided a range of possibilities as to the etiology of the Veteran's urinary conditions. However, the Board finds that such finding by the September 2009 VA examiner merely constitutes a conclusionary statement, one with two possible outcomes, that is not supported by a discussion of the relevant facts nor provides any sort of medical explanation or rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). Therefore, as the September 2009 VA examiner has not provided findings of a definitive nature, the Board affords no probative value to his conclusions. Where a physician is unable to provide a definite casual connection, the opinion on the issue constitutes what may be characterized as non-evidence. Permen v. Brown, 5 Vet. App. 237 (1993); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (generic statement about the possibility of a link is too general and inconclusive). By contrast, the Board accords great probative value to the January 2013 VA medical opinion and rationale provided by the VA examiner. In this regard, the VA examiner provided a definitive opinion and a clear rationale for his opinion specific to the facts of the Veteran's case. 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 the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (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 United States Court of Appeals for Veterans Claims 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). Thus, considering the medical opinions of record, for the reasons discussed above, the Board finds that the most probative medical opinion evidence as to whether the Veteran has a separate ratable neurologic condition, specifically a bladder condition, weighs against such conclusion. The Board has also considered the lay statements and hearing testimony of the Veteran. However, where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Accordingly, as the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion of a medical nature, his lay statements do not constitute competent medical evidence for the purpose of determining whether the Veteran has a separately ratable urinary condition related to his service-connected low back disability. See also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report that on which he or she has personal knowledge). The specific issue of etiology of urinary incontinence falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Under these circumstances, the Board finds that the claim for a separate disability rating for urinary incontinence as a component of the Veteran's service-connected lumbosacral pain disability must be denied. In reaching this conclusion, 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. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a separate disability rating for urinary incontinence as a component of service-connected lumbosacral pain is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs