Citation Nr: 1318046 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 07-03 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a bladder disability, to include as secondary to a service-connected lumbosacral spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1946 to January 1948 and from January 1951 to September 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Board previously remanded the issue on appeal in December 2009 and in February 2011. In September 2012, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain an addendum to a VA medical examination. The action specified in the September 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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). FINDING OF FACT The Veteran's bladder disability did not have onset in service and was not caused or permanently aggravated by the Veteran's active military service, to include his service-connected lumbosacral spine disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a bladder disability, to include as secondary to a service-connected lumbosacral spine disability, have not been met. 38 U.S.C.A. §§ 1110, 1112 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-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 non-service-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. The Veteran is seeking entitlement to service connection for a bladder disability, which he has asserted is secondary to his service-connected lumbosacral spine disability. Historically, the Veteran has complained of radiating pain from his lumbar spine area which developed during his second period of service. He underwent surgery for removal of a herniated nucleus pulposus on the right side of the 5th lumbar interspace in February 1955. Service connection for residuals of the laminectomy was granted in March 1955. A 20 percent disability rating was assigned following the surgery and remained in effect until September 2012, when his disability rating was increased to 40 percent, effective February 2005. See September 2012 Board decision; September 2012 RO rating decision. He underwent further surgery involving fusion at the L5-S1 disc level in September 1958. He underwent a third surgical procedure for decompression from L3-5 in May 1994. He underwent surgery on his cervical spine in 1998 and 2001. Service connection for cervical myelopathy was denied in a December 2006 RO decision, and the Veteran did not appeal this denial. The Veteran's service treatment records are negative for any complaints of bladder problems or other genitourinary complaints. Post-service, although the record reflects ongoing complaints of radiating low back pain in the mid to late 1950s following the Veteran's separation from service, there is no evidence that the Veteran complained of any bladder problems at that time. A December 1997 report from Iowa Methodist Medical Center notes that the Veteran had a history of benign prostatic hypertrophy but that medication had strengthened his urinary stream and improved his bladder emptying. This appears to be the earliest evidence of record of any genitourinary problem, but the wording of the report suggests that the Veteran's benign prostatic hypertrophy has been present for some time. Nothing in the December 1997 examination report suggests that the Veteran's benign prostatic hypertrophy was related to the Veteran's military service, including his service-connected lumbosacral spine disability. See History and Physical Report, Iowa Methodist Medical Center (December 15, 1997). November 2001 treatment records from Iowa Methodist Medical Center reflect that following the removal of his catheter after an October 2001 cervical spine surgery, the Veteran was unable to urinate. They note that the Veteran "has a long history of bladder outlet obstructive symptoms which are either secondary to benign prostatic hypertrophy or neurogenic type bladder." However, the Veteran reported that prior to his admission, his force of stream was normal, and he denied straining, hesitancy, incomplete emptying, dysuria, or hematuria. He did report nocturia. See Iowa Methodist Medical Center Consultation Report (November 16, 2001). In December 2001, the Veteran was treated at the Wesley Acres Health Center for complaints of urinary retention following cervical decompression surgery in October 2001. He reported that following that surgery, he was completely unable to empty his bladder. He was diagnosed with urinary retention secondary to benign prostatic hypertrophy and advised to try a new medication. See Treatment Record from Wesley Acres Health Center (December 11, 2001). In July 2006, the Veteran was afforded a VA medical examination. At that time, he reported that his current bladder problems began in 2001 after his second cervical spine surgery. He stated that his bladder was not a problem until after the neck surgeries. He described his current condition as consisting of the use of an indwelling catheter, with a leg bag during the day and a large night bag. The Veteran denied bladder pain, medications, or a current diagnosis related to his bladder condition. The examiner concluded that the Veteran's urinary incontinence was not likely related to his service-connected lumbosacral spine condition and was more likely than not secondary to residuals of the Veteran's non-service connected cervical spine surgery. However, the examiner failed to provide a rationale for these conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (A medical opinion that contains only data and conclusions is accorded no weight). In April 2010, the RO obtained a VA medical opinion. Following a review of the Veteran's claims file, the VA examiner concluded that it is less likely than not that the Veteran's neurogenic bladder and chronic need for indwelling catheter is a direct result of his service connected lumbar spine condition; per the urology consult of 11/16/2001, he had normal bladder and urinary function with normal sensation of full bladder with no hesitancy or weakness of urine stream prior to the cervical laminectomy and decompression in October 2001. The examiner further noted that the nerves that provide bladder control pass through the area that was affected by the October 2001 cervical spine surgery. The examiner also observed that the Veteran's lumbar spine disability could affect his bladder function if he were to develop a condition called cauda equina syndrome, but that given the Veteran's essentially normal bladder function prior to his October 2001 cervical spine surgery, it was less likely than not that the Veteran's had cauda equina syndrome. In March 2011, the Veteran was afforded a new VA examination. This examiner also concluded that the Veteran's neurogenic bladder condition was less likely than not the result of his service-connected lumbar spine condition. The examiner acknowledged the Veteran's belief that his urinary condition is due to his lumbar spine condition, but noted that the Veteran's last lumbar spine surgery was in 1994 and that the Veteran's bladder function was relatively normal prior to his October 2001 cervical spine surgery. In forming his opinion, the VA examiner essentially noted the Veteran's pre-2001 urinary problems due to benign prostatic hypertrophy as outlined above, and summarized an outside urology consultation that indicated that prior to the Veteran's 2001 hospitalization, the force of the Veteran's stream was normal and had improved after starting Hytrin with no straining or hesitancy, nocturia every two hours, daytime frequency every three to four hours, no incomplete emptying, and a report of having a sensation of a full bladder prior to the surgery; however since the October 2001 surgery, the Veteran had been unable to urinate and reported no sensation of a full bladder. In a November 2012 addendum, the examiner also concluded that the Veteran's bladder condition is less likely than not aggravated by the Veteran's lumbar spine condition. The examiner again noted that the Veteran's urinary incontinence due to postoperative neurogenic bladder condition clearly began after his 2001 cervical spine surgery again noting that December 1997 records showed that Hytrin had strengthened the Veteran's stream and bladder emptying and the Veteran had denied dysuria or nocturia at the time. The examiner also noted that the Veteran reported that his bladder was not a problem until after the neck surgeries. Based on all the above evidence, the Board finds that entitlement to service connection for a bladder condition must be denied. There is no evidence of a genitourinary condition in service or for decades after service. Furthermore, the Veteran's current urinary complaints are not noted until after his October 2001 cervical spine surgery. The Veteran has been afforded multiple VA examinations and opinion and all the examiners have concluded that it is less likely than not that the Veteran's current bladder condition was caused or permanently aggravated by the Veteran's active military service, to include his service-connected lumbar spine condition. As support for their conclusions, they have noted that the Veteran's current urinary problems did not develop until after his most recent cervical spine surgery and that prior to this surgery, the Veteran's bladder function was essentially normal. The Board can find no evidence that any of the Veteran's treatment providers have attributed the Veteran's bladder problems to his service-connected lumbar spine condition. While the Veteran has insisted throughout this appeal that his current bladder condition is related to his service-connected lumbar spine disability, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has a bladder condition due to his service-connected lumbar spine disability is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board gives greater weight to the VA medical opinions and the contemporaneous medical evidence. For all the above reasons, entitlement to service connection for a bladder condition, to include as secondary to the Veteran's service-connected lumbosacral spine disability, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to assist was satisfied by letters sent to the Veteran in January 2006 and March 2006. These letters informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical 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 RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran has submitted private medical records from his physical therapist M.H., Dr. T.J., the University of Iowa, and the Iowa Methodist Medical Center. Only limited private medical records are available for review, however, because the Veteran has not completed the necessary forms authorizing release of such information to the VA. Thus, potentially relevant evidence is unavailable for review by adjudicators, and perhaps more importantly, for review by the medical experts who have been asked to evaluate the Veteran's condition and render opinions as to the etiology of his disability. The record reflects that the Veteran has been informed of the necessity for his cooperation in this matter in a February 2011 letter, and the importance of the relevant medical evidence has been emphasized in the prior Board remands. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wished to fully develop his claim, he had a corresponding duty to assist by providing the requested information. The Board therefore holds that the VA has fulfilled its duty to assist him to the extent possible. The appellant was afforded a VA medical examination and opinions in July 2006, April 2010, and March 2011, with an addendum medical opinion in November 2012. Considered together, these examinations are adequate and probative for VA purposes because the examiners relied on sufficient facts and data, provided a rationale for the opinions rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Board notes that in a letter dated January 2007, the Veteran complained about being examined by a nurse practitioner, rather than a physician. The examiner from July 2006 was a nurse practitioner. The March 2011 examiner was a physician's assistant. In Cox v. Nicholson, 20 Vet. App. 563, 568 (2007), the Court stated "[w]e have never required, nor do we intend to do so here, that medical examinations under section 5103A only be conducted by physicians." The Court, in Cox, concluded that VA had satisfied the duty to assist under the VCAA by providing a medical examination conducted by a nurse practitioner as an examination by a nurse practitioner may be competent medical evidence because of their medical education and training. Id. at 569. A nurse practitioner "fits squarely into the requirement of § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions." Id. Accordingly, absent some specific allegation that any examiner did not possess the requisite qualifications to properly conduct a VA compensation examination, the Board finds that the examinations are adequate and a remand is not necessary for another examination. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, 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). ORDER Entitlement to service connection for a bladder disability, to include as secondary to a service-connected lumbosacral spine disability, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs