Citation Nr: 1335948 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-29 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a neck disability, to include as secondary to a back disability. 2. Entitlement to service connection for incontinence, to include as secondary to a back disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active federal service from October 1969 to March 1970, from June 1985 to January 1986, from February 1986 to September 1988, and from August 1991 to January 1992. He also had service with the Wisconsin Army National Guard from July 1969 October 1969, from March 1970 to June 1985, from September 1988 to August 1991, and from January 1992 to July 2005, which includes periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). From July 2005 to February 2007, the Veteran was assigned to the USAR Control Group, which solely consisted of INACDUTRA. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In October 2010, the Veteran testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In May 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC for an addendum to the medical opinions regarding the Veteran's claims of service connection for a neck disability and incontinence. The case has now been returned to the Board for appellate consideration. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issue of service connection for a neck disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Urinary incontinence was not incurred during ACDUTRA or INACDUTRA and is not related to any injury incurred in-service, to include the Veteran's service-connected back disability. CONCLUSION OF LAW The criteria for service connection for urinary incontinence have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2011). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 (2012). 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. The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). The term "active duty" includes full-time duty in the Armed Forces, other than active duty for training (ACDUTRA). 38 U.S.C.A. § 101(21). The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C.A. § 101(10). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d) (2010). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). With respect members of the Army National Guard (ARNG) or Air National Guard (ANG), ACDUTRA means full- time duty under section 316, 502, 503, 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(22)(c). INACDUTRA includes duty (other than full-time duty) performed by a member of the National Guard of any State, under 32 U.S.C. §§ 316 , 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 C.F.R. § 3.6(d)(4). Any individual (1) who, when authorized or required by competent authority, assumes an obligation to perform ACDUTRA or INACDUTRA for training; and (2) who is disabled or dies from an injury or covered disease incurred while proceeding directly to or returning directly from such ACDUTRA or INACDUTRA shall be deemed to have been on ACDUTRA or INACDUTRA, as the case may be. 38 C.F.R. § 3.6(e). "Injury" is defined as harm resulting from some type of external trauma and "disease" is defined as harm resulting from some type of internal infection or degenerative process. VAOPGCPREC 4-2002. Only service department records can establish if and when a person was serving on active duty, active duty for training, or inactive duty training. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Service department records are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R. § 3.203, limiting the type of evidence accepted to verify service dates. The Veteran contends his urinary incontinence is secondary to his service-connected back disability. As an initial matter, the Board notes that the Veteran is service-connected for a back disability sustained on a weekend drill during INACDUTRA in April 1996. His medical records show he has had ongoing treatment for lumbar disc herniation since that time. The Veteran testified at his October 2010 Board hearing that he did not experience incontinence prior to having back surgery, but that now if he overdoes anything physical in his lower back he experiences involuntary urination. The Veteran's treatment records show that in May 1996, a neurosurgeon noted that the Veteran had urinary frequency and occasional dribbling but could hold his urine well. A week later the Veteran again discussed early urinary control problems with the neurosurgeon. In June 1996, prior to undergoing surgery on his back the Veteran reported he had had some episodes of urinary urgency and had noticed some dribbling of urine. The neurosurgeon stated that the surgery could stop the possible progression of his urinary and sexual dysfunction problem. In June 2000 and October 2004 the Veteran reported no urinary tract symptoms outside of mild impotence. In July 2003 the Veteran reported an incident with leg and urethra numbness and urine leakage that he had not experienced before. In August 2004 the Veteran reported problems holding his urine and frequent urination. A November 2005 treatment records reflects the Veteran had increased urinary frequency that the examining provider suggested might have been due to a radiculopathy or the result of some of his home medications. A March 2006 orthopedic surgery consultation note states that the Veteran "has urinary frequency and symptoms of BPH," but also indicates that the Veteran denied bladder control problems. The Veteran was afforded a VA examination in January 2012 at which the Veteran reported his urinary problems began in 1996 after his back surgery. The examiner opined that the Veteran's service records do not document urinary incontinence in service or any event that would have predisposed the Veteran to a urinary incontinence condition, and that the Veteran has BPH that is not secondary to his back condition, providing some evidence against this claim. However, the Board found the examiner's opinion inadequate as the examiner's diagnosis of BPH appeared to be based on a 2006 diagnosis in the Veteran's medical records that the Board was unable to locate, and the examiner did not consider all of the evidence of record or provide a rationale for his opinion as to secondary service connection. The Board remanded for an addendum medical opinion. The Veteran was afforded another VA examination in January 2013. He again reported that his urinary incontinence began after his 1996 back surgery. The examiner opined that it is less likely than not that the Veteran's incontinence and/or BPH was caused or aggravated beyond its natural progression by service. The examiner explained that BPH is a normal process of aging in the male population and nothing in the Veteran's military service experience causes BPH. The examiner further opined that neck degenerative disc disease is a separate problem from urinary nerve and muscle issues and therefore it is less likely than not that the Veteran's incontinence was caused or aggravated by his neck disability, providing more evidence against this claim. The Board noted the examiner did not perform any testing to diagnose the Veteran with BPH and appeared to again rely on the 2006 medical record cited by the previous examiner. Further, no opinion was rendered on whether the Veteran's urinary incontinence could be secondary to his service-connected back condition. The Board remanded for an addendum medical opinion. In June 2013 a VA orthopedic resident provided an opinion. He opined that it is less likely than not that the Veteran's incontinence or BPH was caused or aggravated by his service or service-connected back condition. He opined that the Veteran does have BPH given his age, frequency, incontinence, and dribbling type symptoms and improvement with tamsulosin. Although the Board notes that the VA doctor did not perform any testing to diagnose BPH, he based his diagnosis on a full review of the record, not the 2006 record cited by previous VA examiners that the Board was unable to locate in the Veteran's claims file. The VA doctor noted that the Veteran had urinary complaints prior to his 1996 lumbar discectomy as well as after, although the earlier complaints were not as pronounced. He noted that the doctor performing the operation did not believe the Veteran had radiculopathy. He also stated that there is scant mention of classic signs of lumbar radiculopathy by the patient, such as radiating pain, positive tension signs, dermatomal paresthesias, and specific muscle group weakness. The Veteran also did not mention incontinence or radicular symptoms at medical examinations in the 2000's. The doctor concluded that the Veteran's symptoms are related to his BPH not his thoracolumbar condition. The doctor noted that BPH is a common medical disorder among males as they age, and degenerative disc disease of the cervical and lumbar spine is not a known causative factor, providing highly probative evidence against this claim. Initially, the Board notes that the Veteran has reported urinary incontinence and has been diagnosed with BPH. However, the Board finds that the evidence does not support direct service connection, secondary service connection, or aggravation by a service-connected disability. Addressing first the Veteran's contention that his urinary symptoms are secondary to his service-connected back disability, the Board finds that the evidence does not support such a nexus. The Board finds the June 2013 opinion of the VA doctor to be competent. The doctor explained that degenerative disc disease of the lumbar spine is not a known causative factor of urinary incontinence. He further stated that the record does not suggest the Veteran has radiculopathy. Specifically, he noted that the doctor who operated on the Veteran in 1996 did not believe he had radiculopathy and the Veteran has not complained of the classic signs of lumbar radiculopathy. With regard to the Veteran's contention that his urinary symptoms began only after his 1996 back surgery, the VA doctor stated that a review of the records shows urinary complaints both before and after the surgery. The Board too has reviewed the record in this regard, and notes specifically that the Veteran reported urinary frequency and occasional dribbling a month before the surgery as well as immediately before the surgery, and in fact, the neurosurgeon suggested that the surgery could stop the possible progression of the Veteran's urinary problem. Finally, the VA doctor concluded that the Veteran's urinary incontinence is instead due to BPH, which is a common medical disorder among males as they age. He noted that the Veteran's age, symptoms, and improvement with tamsulosin all support a diagnosis of BPH. The Board gives significant probative weight to the VA doctor's opinion. The Board recognizes the November 2005 treatment record in which the examining provider suggested the Veteran's urinary frequency could be due to radiculopathy, but finds that the suggestion is speculative at best. There is no diagnosis of radiculopathy at that time or in any of the Veteran's other treatment records. Although the Veteran has opined his urinary incontinence is a result of his service-connected back disability, the Board finds he is not competent to render such an opinion as it is not competent of lay observation and falls outside of the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is essentially providing a medical opinion. Thus, the Board finds a preponderance of the evidence is against finding that the Veteran's service-connected back condition caused or aggravated the Veteran's urinary incontinence. With regard to direct service connection, the Board notes that the Veteran served during various periods of ACDUTRA and INACDUTRA. However, the Veteran has not identified any specific injury that occurred during his service outside of his service-connected back injury that he attributes the onset of his urinary incontinence to. Further, none of the VA examiners to review his service records were able to identify any specific in-service occurrence that would have led to the condition. To the extent that the Veteran has suggested generically that his military duties caused his condition, the Board finds that the Veteran is not competent to render a medical nexus opinion and the competent medical evidence of record does not support such a conclusion. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for service connection for urinary incontinence must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2007. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. Thus, the duty to notify has been satisfied. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran. The Veteran also submitted lay statements from fellow service members. Neither the Veteran 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. The Veteran was afforded VA medical examinations in January 2012 and January 2013 and an addendum medical opinion was obtained in June 2013. In June 2013 VA doctor reviewed the Veteran's claims file, including the Veteran's medical history and his statements, relied on an accurate history, and provided the Board with an adequate opinion to decide the issue of service connection for urinary incontinence. The Board underwent a long process to obtain a good medical opinion (in this regard, the apologizes to the Veteran for the delay in the process). Therefore, the Board finds that the June 2013 medical opinion is adequate and contains sufficient information to decide the issue on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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, 16 Vet. App. 183. ORDER Service connection for urinary incontinence is denied. REMAND At the outset, the Board acknowledges the RO's development in this case. Very unfortunately, remand of the Veteran's claim for service connection for a neck disability is again required. Although the Board regrets the additional delay, further development of the record is necessary before the Board may render a decision in the instant case to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. When the Board's remand requests are not satisfied, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends he has a neck disability that is secondary to his service-connected back disability. Service treatment records indicate that in January 2003 the Veteran was assessed with an acute neck strain found to be exacerbated by stress. In March 2003, he had an acute flare-up of cervical neck pain. A magnetic resonance imaging (MRI) of his cervical spine in January 2006 (during INACDUTRA) indicated mild disc bulging. Also during INACDUTRA, in May 2006, the Veteran complained of mild right neck pain and was assessed with chronic neck pain. The Veteran was afforded a VA examination in January 2012, however the Board found the examiner's opinion inadequate as it did not address the two complaints of neck pain in 2003 or provide an adequate rationale for the opinion as to aggravation. The Board remanded for an addendum medical opinion. In January 2013 another VA doctor provided a medical opinion, however, the Board found that the examiner also did not offer a rationale as to the opinion on aggravation and again remanded for an addendum medical opinion. In June 2013, a VA orthopedic resident provided another medical opinion. The orthopedic resident opined that the Veteran's cervical spine degenerative disc disease is less likely than not caused or related to his service and it is less likely than not that the condition was aggravated beyond its natural progression by service or his service-connected back disability. The VA doctor stated, "Lumbar DDD is not a predisposing factor for direct causation of cervical spine DDD. Advancing levels of scoliosis can be, however he does not have this severity of disease, nor does he have cervical spine scoliosis." He also noted that the Veteran's spine was found normal in 2006 and in October 2010 the Veteran testified his neck problems had only begun six months prior, so the Veteran's statements "ambiguates what was happening with his neck condition." Unfortunately, the VA doctor also failed to provide a rationale to support his opinion that the Veteran's neck disability was less likely than not aggravated beyond its natural progression by his service-connected back disability. Instead, the examiner offered an explanation only as to why the Veteran's service-connected back disability did not directly cause his neck condition. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). Accordingly, an addendum medical opinion as to whether the Veteran's service-connected back disability aggravated, or increased the severity of, his neck disability is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental medical opinion from the VA doctor who provided the June 2013 medical opinion or, if unavailable, another suitably qualified VA examiner, addressing whether it at least as likely as not (a 50 percent or greater probability) that the Veteran's neck disability was aggravated beyond its normal progression by (increased in severity due to) his service-connected back disability? If the opinion is that his service-connected back disability aggravated his neck disability, the examiner should specify, so far as possible, the degree of disability (pathology/impairment) resulting from such aggravation. A complete rationale is required for all opinions rendered. The opinion should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 2. Then, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. In this regard, in light of the prior remands, the RO should ensure that the question asked by the Board has been addressed by the examiner. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include adequate responses to the specific opinion requested, the report must be returned for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2 (2011). 3. When the development requested has been completed, and the RO has ensured compliance with the requested actions, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the appellant and his representative, if any, should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs