Citation Nr: 1333864 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 00-16 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for disability manifested by urinary frequency, including renal disability and benign prostatic hypertrophy with overactive bladder, to include as secondary to service-connected diabetes mellitus, type II, or hypertension. REPRESENTATION The Veteran is represented by: The American Legion ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran had active service from September 1964 to July 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. This matter was previously before the Board in March 2009, May 2012, June 2013, at which time it was remanded for further development. The case is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals the submission of a September 2013 Written Brief Presentation by the Veteran's representative, and additional records that are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. FINDING OF FACT Current disability manifested by frequent urination, including renal disability and benign prostatic hypertrophy with overactive bladder, were not incurred in or due to active service and were not caused or aggravated by the service-connected diabetes mellitus, type II, or hypertension. CONCLUSION OF LAW The criteria for the establishment of service connection for a disability manifested by frequent urination, including renal disability and benign prostatic hypertrophy, to include as secondary to diabetes mellitus, type II, or hypertension, have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in February 2007, April 2007, and May 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Board further observes that this case was remanded in May 2012 in order for the RO to provide the Veteran with a VA examination and to attempt to obtain additional, relevant VA and non-VA treatment records. With respect to the examination, the Board requested the examiner to render opinions as to whether any current renal disability was etiologically related to an incident or illness occurring during the Veteran's active duty, or was caused or aggravated by diabetes mellitus, type II. While his claim was in remand status, the RO requested and obtained the Veteran's VA treatment records dated in and after May 2003. No additional, relevant private treatment records were identified by the Veteran. The Veteran was then provided a VA examination in June 2012. Thereafter, the denial of the Veteran's claim was confirmed and continued in both a December 2012 and a February 2013 Supplemental Statements of the Case. The Veteran's claim was then remitted to the Board for further appellate review. In June 2013, the Board found that the June 2012 VA examination report was inadequate for purposes of adjudicating the Veteran's service-connection claim. Consequently, the Board remanded the claim in order for the RO to obtain a supplemental opinion from the June 2012 VA examiner. In July 2013, the VA examiner rendered etiological opinions that addressed the Board's May 2012 and June 2013 remand directives. Further, when viewed together, the June 2012, with July 2013 addendum, adequately addressed the salient questions presented by the Veteran's claim. As such, the Board finds that the RO substantially complied with the prior remands, and another remand for corrective action is not warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). 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) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. In September 2006, the Veteran submitted a claim of entitlement to service connection for a disability manifested by urinary frequency. In May 2012, based upon a review of the evidence then of record, the Board found that the scope of the Veteran's service connection claim included renal disability and, thus, re-captioned the Veteran's claim as one of entitlement to service connection for renal disability, to include as secondary to diabetes mellitus, type II. Upon further review, the relevant evidence of record, including the June 2012 VA examination report, also demonstrated diagnoses of benign prostatic hypertrophy with overactive bladder. Further, service connection is in effect for hypertension. As such, the Board finds that the Veteran is claiming entitlement to service connection for disability manifested by urinary frequency, including renal disability and benign prostatic hypertrophy with overactive bladder, to include as secondary to diabetes mellitus, type II, or hypertension. See Brokowski v. Shinseki, 23 Vet App 79 (2009) citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that, when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim). In October 1966, the Veteran's service treatment records demonstrated that he had reported cloudy and bloody urine. The diagnoses were gonorrhea, acute gonococcis urethritis with secondary acute prostatitis and acute cystitis. The Veteran's service treatment records did not demonstrate complaints of or treatment for frequent urination or disability manifested by urinary frequency, to include renal disability and/or benign prostatic hypertrophy with overactive bladder. The Veteran submitted the above-captioned claim asserting that a disability manifested by urinary frequency was secondary to his service-connected diabetes mellitus, type II. As discussed above, based on the evidence of record, the Board re-captioned the claim to include renal disability and benign prostatic hypertrophy with overactive bladder, to also include as secondary to his service-connected hypertension. The evidence of record included current diagnoses of renal cysts and benign prostatic hypertrophy with overactive bladder; the Board need not detail these diagnoses here. The salient issue is, thus, whether the Veteran's current renal cysts and/or benign prostatic hypertrophy with overactive bladder was/were incurred in or due to his active service or was caused or is aggravated by service-connected diabetes mellitus, type II, or hypertension. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (the Board is not obligated to investigate all possible theories of entitlement). In June 2012, the Veteran underwent a VA examination to ascertain the presence of renal disability and, if any, whether it was incurred in or due to his active duty or was caused or aggravated by service-connected disability. The diagnosis rendered by the examiner was renal cysts. With respect to the Veteran's relevant medical history, the examiner stated the following: [The] Veteran had renal cyst as incidental finding in his [ultrasound] abdomen done for his cirrhosis of liver which [has] been stable over the years without any functional problem to renal function. This [V]eteran has hypertension and type II [diabetes mellitus] insulin dependent diagnosed in [September 2002] but there is no proteinuria on [urinalysis] and microalbuminuria is [less than] 5 on spot urine exam[ination] today. [The] Veteran is taking [medication] for his hypertension as well as renal prophylaxis for being diabetic with stable renal function. After clinical testing, the examiner opined: This [V]eteran's renal cyst is an incidental finding not related to his service[-]connected medical problems of hypertension and [diabetes mellitus, type II]. He has normal and stable renal function with good normal BUN/Creatinine[.] As a result of a contemporaneous VA examination pertaining to the Veteran's reproductive system, the examiner further opined as follows: This [V]eteran's frequent urination with nocturia is most likely secondary to his benign prostatic hypertrophy and overactive bladder on Oxybutynin with stable underlying renal function...benign prostatic hypertrophy and overactive bladder are separate medical condition not related to [diabetes mellitus, type II,] or hypertension. This [V]eteran's overactive bladder and benign prostatic hypertrophy are less likely as not incurred or related to his service-connected medical problems. In July 2013, the June 2012 VA examiner rendered a supplemental opinion. The examiner reiterated the finding that the diagnosis of renal cyst was an incidental to a hepatitis C evaluation. The examiner then noted that December 2012 magnetic resonance imaging revealed bilateral simple renal cysts, which the examiner stated are common in many people and the rate of incidence increases with age. Further, the examiner stated that it was estimated that simple renal cysts are seen in about 27 percent of those over the age of 50 on computed tomography scan, and that the etiology is not totally known, but is suspected to be genetic. The examiner then opined as follows: [T]his type of cyst would have no relationship to military duty, nor would there be anything in this [V]eteran's military duty (in-service disease, event, or injury) that would aggravate this condition. [A]dditionally, diabetes mellitus and hypertension do not cause or aggravate renal cysts. [H]is actual renal function is normal. [A]s of [December 12, 2013], his creatinine was 0.8, his BUN was 8, and his estimated glomerular filtration rate 117.39. [A]ll of these are totally normal values. [T]hus, this examiner finds no evidence of renal dysfunction in this [V]eteran. [H]e simply has been found, incidentally, to have simple renal cysts. [T]his is a very common finding in many people and is of no significance to his renal function. With respect to benign prostatic hypertrophy, the examiner opined: Benign prostatic hypertrophy is a non-malignant proliferation of the epithelial and stromal cells of the prostrate in men. [I]t will impact 90 [percent] of men by the time they reach their 80's. [T]hus, it is very common, but why the prostrate enlarges over time is not totally understood by medicine. [T]here is nothing in this [V]eteran's military service (an in-service disease, event, or injury) that caused or aggravated this condition. [I]t is most likely that this [V]eteran would have developed benign prostatic hypertrophy with or without being in the military. [A]dditionally, benign prostatic hypertrophy has no relationship to diabetes or hypertension as it is a pathologic change of the prostate. [T]hus, his benign prostatic hypertrophy could not be caused by or aggravated by [hypertension] or [diabetes mellitus, type II]. [H]e has no renal disability, thus[,] his benign prostatic hypertrophy was not caused by a renal disability or vice versa. In the June 2013 remand, the Board specifically asked the examiner to explain the significance of a notation in the June 2012 VA examination report that a Creatinine ratio could not be calculated. In response, the examiner provided the following explanation: [I]n the [June 2012] exam[ination], there is a note stating the creatinine ratio could not be calculated. [T]his is not a statement from the examiner, but a statement from the lab[oratory]. [B]ased on the urine test, as per the VA [Medical Center in Memphis, Tennessee,] urinalysis laboratory, their lab[oratory] equipment was not able to calculate a value because his microalbumin was so low (it was totally normal despite his diabetes and hypertension). In this, and in other cases, only competent evidence may be considered to support Board findings. The Board is not free to substitute its own judgment for that of an expert. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The only competent opinions of record were negative to the Veteran's claim in that the examiners determined that no current disability manifested by urinary frequency, including renal disability and benign prostatic hypertrophy with overactive bladder, was incurred in or due to his active duty and was not caused or aggravated by service-connected diabetes mellitus, type II, or hypertension. The Board finds that these negative opinions are highly probative, as they are definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Among the 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, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). To the extent that the Veteran asserts that current disability manifested by urinary frequency, including renal disability and benign prostatic hypertrophy with overactive bladder, was incurred in or due to his active duty or was caused or aggravated by service-connected diabetes mellitus, type II, or hypertension, the Board finds that etiological opinions are more suited to the realm of medical, rather than lay expertise. Determining the etiology of disability manifested by urinary frequency, or the aggravation thereof, is too complex for a layperson to proffer a competent opinion. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent etiological or aggravation opinions. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Consequently, lay assertions of etiology or aggravation cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). As the preponderance of the evidence is against finding that current disability manifested by urinary frequency, including renal disability and benign prostatic hypertrophy with overactive bladder, was incurred in or due to active duty or was aggravated by a service-connected disability, the benefit-of-the-doubt rule does not apply. Accordingly, service connection is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making this determination, the Board acknowledges that the Veteran underwent a VA examination in May 2007 regarding his diabetes mellitus, type II. Ultimately, clinical testing demonstrated the presence of microalbuminuria, which the examiner opined was likely secondary to the Veteran's diabetes mellitus, type II, as well as hypertension. However, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2013); see Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Elevated albumin protein (microalbuminuria) is a laboratory findings and not a disability in and of itself for which VA compensation benefits are payable. Further, service connection has already been granted for diabetes mellitus, type II, and hypertension. The evidence of record did not demonstrate that microalbuminuria was a symptom of disability (other than diabetes mellitus, type II, and hypertension) that was manifested by urinary frequency, including renal disability or benign prostatic hypertrophy with overactive bladder. Accordingly, service connection for microalbuminuria is not warranted. ORDER Service connection for renal disability, to include as secondary to diabetes mellitus, type II, is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs