Citation Nr: 1324347 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-15 198 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for urinary incontinence, claimed as secondary to lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from August 1979 to March 1981. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2008 rating decision in which the RO, inter alia, denied service connection for urinary incontinence as secondary to lumbar spine disability. In January 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. In a February 2011 letter, the Board informed the Veteran that the audio recording was too poor for preparation of a transcript, and asked him if he would like another hearing; the letter specifically advised the Veteran that if he did not respond to the letter within 30 days, it would be assumed that he did not want another hearing. To date, the Veteran has not responded to the February 2011 letter. In May 2011, the Board reopened a claim for service connection for low back disability (previously claimed as lumbar paravertebral myositis for which an appeal also had been perfected), and remanded the claims for service connection for lumbar spine disability and for urinary incontinence to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further development. In a September 2012 rating decision, the AMC granted service connection for lumbar spine disability characterized as lumbar strain, evaluating the disability as 10 percent disability from February 15, 2008, and as 40 percent disabling from September 3, 2011. The Veteran has not in any way taken issue with this determination. Hence, the matter of service connection for a low back disability is no longer before the Board for consideration. After accomplishing further action, the AMC continued to deny the claim for service connection for urinary incontinence (as reflected in a September 2012 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. For reasons expressed below, the Board has recharacterized the claim remaining on appeal as reflected on the title page. In February 2013, the Board requested an additional medical opinion on this case from the Veterans Health Administration (VHA). The opinion was submitted in April 2013. In May 2013, the Veteran and his representative were provided a copy of the opinion and given 60 days to submit additional evidence or argument. A response was received from the Veteran's authorized representative in July 2013. A review of the paperless, electronic (Virtual VA) claims processing system reveals VA laboratory reports and prescription drug records dated through October 2011; such records were considered by the RO in the September 2012 SSOC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Urinary incontinence was not shown in service or for many years thereafter, and there is no lay or medical suggestion that urinary incontinence had its onset during service or is otherwise medically related to service. 3. The most persuasive medical opinion evidence to directly address the medical relationship, if any, between current urinary incontinence and lumbar spine disability weighs against the claim. CONCLUSION OF LAW The criteria for service connection for urinary incontinence, claimed as secondary to lumbar spine disability, are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an April 2008 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for service connection on direct and secondary bases. This letter provided notice as to what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. In addition, the April 2008 pre-rating letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The October 2008 RO rating decision reflects the initial adjudication of the claim after the issuance of the April 2008 letter. Hence, the April 2008 letter met the VCAA's content of notice and timing requirements. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, VA and private treatment records, reports of VA examination, as requested by the Board in its May 2011 remand, and the VHA opinion obtained by the Board. The Board notes a May 2012 RO Memorandum which made a formal finding regarding the unavailability of outpatient treatment records from the San Juan VA Medical Center (VAMC) dated through January 1986. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, there must be competent 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service; urinary incontinence is not considered to be a chronic disease. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Urinary incontinence is not listed as a chronic disease under 38 C.F.R. § 3.309(a). Service connection may also 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. That regulation permits service connection not only for disability caused by service-connected disability, but for 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). At the outset, the Board notes that, although the RO considered the claim remaining on appeal on both direct and secondary theories of entitlement-and the Board has previously characterized the claim on appeal with both theories in mind-there is actually no evidence or allegation that urinary continence had its onset during, or is otherwise medically-related to service. The service treatment records are negative for any complaints, finding or diagnosis related to urinary incontinence. In March 1981, following a review of the Veteran's health records, it was determined that a separation physical examination was not required for the Veteran. Therefore, no urinary incontinence was shown, or is alleged to have occurred, during service. Moreover, as indicated below, there is no documented evidence of urinary incontinence for more than 30 years after service-a factor that would tend to weigh against a claim for direct service connection-if, in fact, a relationship to service was being asserted. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (a 1992). Here, however, in connection with the request to reopen the previously denied claim, the Veteran has only asserted that his urinary incontinence is secondary to his lumbar spine disability (claimed as lumbar paravertebral myositis), and, given the evidence suggesting such a relationship, the Board reopened the claim. Given the complete absence of evidence or allegation that urinary incontinence is service related, any further discussion or development on the question of direct service connection is unnecessary, and the Board will limit its discussion to secondary service connection. In July 2011, Dr. L. C., the Veteran's private physician, opined that the Veteran's lumbar spine disability had inflamed the lumbar interverteparaspinal muscle group which then progressed to a medical objective complication by affecting the lumbar spinal cord and nerve roots. The examiner further opined that the irritation of the lower lumbar and sacral nerve roots caused neurologic bladder clinical symptoms due to detrusor sphiter dyssnergia, causing a functional urinary impairment defined as urinary incontinence. In addition, the examiner noted that lesions from the central nervous system at the anterior spinal cord level are directly related to, or have a causal relationship to, the Veteran's urinary incontinence. During an October 2011 VA genitourinary examination, the Veteran reported that he had been suffering from urinary incontinence for the past several years. Following a physical examination and a review of the Veteran's claims file, the examiner opined that the Veteran's urinary incontinence was not caused by, or a result of, lumbar myositis, as the medical literature did not support such a relationship. In an April 2013 opinion, the VHA physician opined that it was unlikely that the Veteran's complaints of urinary incontinence were related to lumbar myositis, as asserted. The examiner reasoned that the current medical literature showed a lack of cause-effect relationship between such condition and urinary incontinence, that the Veteran was known to have several areas of degenerative disc disease with a history of cervical whiplash and knee osteoarthritis ,and that the October 2011 physical examination was incompatible with incontinence due to neurogenic causes. With regard to the July 2011 opinion from Dr. L. C., the examiner noted that while it was true that a lumbar strain can be present at the same time with various forms of spinal and extra spinal injuries and diseases, ranging from self-limited disease with no other pathology to complete spinal cord injury and quadriplegia, there was no relationship between the Veteran's service-connected lumbar spine strain and urinary incontinence. As indicated, the Board observes that there record includes conflicting evidence on the question of whether the Veteran's current urinary incontinence is medically related to lumbar spine disability. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this appeal, for reasons discussed below, the Board finds that the April 2013 VHA opinion to be most persuasive on the question of etiology of the Veteran's urinary incontinence. As indicated, that opinion clearly was based upon full consideration of the record, to include the Veteran's documented medical history and his assertions, and medical literature, like the October 2011 examiner's opinion. However, unlike the VA examiner, the VHA physician addressed both the Veteran's asserted myositis and the lumbar strain for which service connection was ultimately awarded, and the opinion is supported by full, clearly-stated rationale. Accordingly, the Board accords this opinion full probative weight on the medical nexus question. By contrast, the only opinion submitted in support of the claim-Dr. L. C's July 2011 opinion that the Veteran's lumbar myositis caused his urinary incontinence as it had progressed to affect the nerve roots-is not considered persuasive. No rationale was provided in support of this opinion. A medical opinion which only contains data and conclusions, and is not supported by reasons or rationale is accorded no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. at 95. See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. In addition, this provider failed to address the impact of the Veteran's other lumbar spine impairment-to include degenerative disease of the cervical and thoracic spines-on his urinary incontinence, nor did specifically address the lumbar strain for which service connection was ultimately awarded. The July 2011 opinion is therefore afforded little, if any, probative weight. See Nieves-Rodriguez, supra; see also Stefl, supra. Furthermore, as for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between the Veteran's urinary incontinence and service-connected lumbar spine disability, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matter of the etiology of the disability here at issue is a complex medical matter within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. For all the foregoing reasons, service connection for urinary incontinence, claimed as secondary to lumbar spine disability, must be denied. In reaching the conclusion to deny the claim, 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). ORDER Service connection for urinary incontinence, claimed as secondary to lumbar spine disability, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs