Citation Nr: 1336185 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 05-14 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for urinary incontinence, to include as secondary to a service-connected lumbar disability. 2. Entitlement to service connection for bowel incontinence, to include as secondary to a service-connected lumbar disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from December 1983 to August 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). In June 2007, the Veteran and his spouse testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. This case was remanded by the Board in January 2008, August 2010, and June 2013 for additional development. The Board finds that there has been substantial compliance with the remand requests. FINDINGS OF FACT Urinary and fecal incontinence were not shown in active service or for many years after, and the probative medical opinions addressing a nexus between diagnosed urinary and fecal incontinence and service, or as secondary to the Veteran's service-connected lumbar spine disability, weigh against the claims. CONCLUSIONS OF LAW 1. The criteria for service connection for urinary incontinence, to include as secondary to a service-connected lumbar disability, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 2. The criteria for service connection for bowel incontinence, to include as secondary to a service-connected lumbar disability, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in April 2003, May 2004, December 2004, and March 2008. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent July 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its most recent remand directives in June 2013. Only substantial compliance with the terms of the Board's remand is required, not strict compliance. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The record indicates that the Veteran was provided a medical examination and that the June 2013 VA examination report was responsive to the questions posed by the Board. The June 2013 VA examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, and provided findings in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, the Board finds substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). 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) (2013). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. However, bowel and urinary incontinence are not listed as chronic diseases. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. 3.307, 3.309(a) (2013). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice. There is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2012). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which does not include bowel or urinary incontinence. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability. 38 C.F.R. § 3.303(a) (2013). In addition, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran's service medical records are negative for any diagnosis of urinary or bowel incontinence. After separation from service, the Veteran denied experiencing bladder or bowel incontinence in VA and private medical reports dated in July 2001, February 2002, October 2002, January 2003, and July 2003. A January 2003 neurosurgery record shows that the Veteran did not report any bladder or bowel symptoms. The impression was chronic lumbago, chronic pain syndrome, and exaggerated pain response and possible hysterical symptoms. It was noted that this unfortunate man suffered from very minimal organic problems. The VA physician thought there was a grossly functional overlay involved and recommended psychiatric consultation. An April 2003 VA aid and attendance examination report shows that the Veteran denied any problems with his bowels. It was noted that the Veteran reported some urgency and frequency. Since January 2004, the Veteran has consistently reported experiencing bladder and bowel incontinence. A January 2004 private medical report shows that the Veteran reported experiencing daily leakage of urine and stool. The examiner opined that the Veteran's VA spine rating did not appear to incorporate his bowel and bladder incontinence, and therefore he should be re-rated with particular attention to his potentially service connectable cervical and lumbar spine pathology. An August 2004 VA medical record notes that the Veteran reported that he was beginning to lose bowel/bladder control and that he "leaks when he coughs or sneezes." The VA physician concurred with the January 2003 VA physician's assessment that the Veteran's problem was primary functional rather than organic. The physician did not find that the Veteran qualified for the VA spinal cord injury clinic. An August 2004 private medical report from J. White, M.D., shows that the Veteran's claims file was available and previously reviewed. It was noted that the Veteran mentioned that he had urinary urgency with "leakage" with coughing or sneezing. He also had some fecal soiling due to urgency. No opinion was offered as to the etiology of urinary urgency and fecal soiling. A March 2005 VA spine examination report shows that the Veteran's claims file was reviewed and included a thorough discussion of urinary and bowel complaints. After physical examination, the relevant diagnosis was urinary and bowel symptoms involving incontinence at times, without obvious etiology. The examiner opined that while it was possible that spinal conditions might cause incontinence of the bowel and bladder, other conditions might also be related. The examiner noted that she was not a neurologist and recommended referral to a clinical neurologist. In an August 2005 Naval hospital report, the Veteran complained of urinary and bowel incontinence. After neurologic examination, the diagnoses included urinary incontinence without sensory awareness and inability to restrain bowel movements. The examiner opined that both of the problems were likely secondary to quadriparesis, though the examiner also noted that they may have represented symptoms of spinal cord disease. A November 2005 VA medical record notes that the Veteran was assessed with neurogenic bladder. A January 2007 VA neurological disorders examination report stated that the Veteran's claims file had been reviewed. The report noted that the Veteran began experiencing urinary incontinence symptoms in 2003 and had received emergency room treatment for recurrent urinary tract infections on multiple occasions. The Veteran denied experiencing saddle anesthesia in either the genitalia or the perianal region. He reported experiencing bowel incontinence symptoms since 2004. After physical examination, including of the genitalia and rectum, the diagnoses included bladder incontinence unrelated to his degenerative disc disease of the lumbar spine and most likely related to local problems of the prostate; and bowel condition without objective evidence to make a diagnosis of bowel incontinence. The examiner opined that the Veteran's bowel incontinence was less likely as not caused by or a result of his lumbar or cervical spine disorders, due to inconsistencies which were noted on examination of the Veteran. The examiner also opined that the Veteran did not historically or objectively have a lot of difficulty with incontinence, other than some bedwetting at night which might have been psychological. It was stated that the Veteran had good sensation in the saddle region and the historical data gathered indicated a possible peripheral issue, benign prostatic hypertrophy, or strictures of the urethra. A urological consultation was advised. A May 2008 VA aid and attendance examination shows that the Veteran was diagnosed with urinary and bowel incontinence. A March 2010 VA medical record shows that the Veteran spontaneously voided. The assessment was extremely complex mental health situation with conversion disorder affecting objective assessment of neurologic deficits. The Veteran continued to have no evidence of an actual spinal cord injury or disorder. There were questionable neurogenic bladder issues. Despite the Veteran's history of incontinence, he was dry on the day of the examination. In August 2010, the Board remanded the Veteran's urinary and bowel incontinence claims so that he could be provided with a medical opinion to determine whether his bladder and bowel abnormalities had been aggravated by his service-connected spinal disabilities, and to undertake the recommended urology consultation. Subsequently, at a November 2010 VA genitourinary examination, the Veteran reported occasional incontinence requiring absorbent material once every two to three days. He denied constipation or diarrhea. After physical and diagnostic examination, the examiner stated that there was no objective evidence of urinary or fecal incontinence. No etiological opinion was provided. A June 2013 VA examination report shows that the examiner reviewed the claims file and examined the Veteran. The diagnosis was urinary incontinence, mild functional limitation and claimed fecal incontinence, resolved. The VA examiner opined that there was insufficient evidence to warrant or confirm a current diagnosis of an acute or chronic fecal incontinence. After carefully reviewing the claims file, to include VA medical records, and various consultation notes, the VA examiner opined that the Veteran's current urinary incontinence and the bowel incontinence (now resolved) that occurred seven to eight years after service (2003 and 2004 respectively), were less likely than not due to the Veteran's active service to include service-connected lumbar spine disability and cervical spine disability nor were they aggravated by the lumbar spine disability. The examiner explained that although x-rays showed lumbar spine degenerative disc disease, there was no documented history of spinal injury (despite the Veteran's statement that he had several falls while in service), neurological disorder, or structural and anatomical abnormalities that can cause urinary and bowel incontinence. The examiner further opined that this was likely a case of conversion disorder. Moreover, the Veteran had a long history of slow transit constipation, one factor in the causation of constipation for which he tried to increase his fluid intake causing urinary incontinence. The VA examiner also noted several additional risk factors for urgency and fecal incontinence. After carefully considering the pertinent evidence, to include the Veteran's assertions, the Board finds that the preponderance of the evidence is against the claims for service connection for urinary incontinence and bowel incontinence. The first complaints of urinary and bowel incontinence began in January 2004, which is more than three years after the Veteran's discharge from service and is evidence against the claim. Maxson v. West, 12 Vet. App. 453 (1999) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Moreover, the Board notes that the only medical opinions to address the probability of a medical relationship between the Veteran's urinary and fecal incontinence and service or service-connected disability each weigh against the claims. In this regard, the Board finds most probative is that of the June 2013 VA examiner's opinion, who, after a thorough review of the claims file, opined that it was less likely than not that the Veteran's urinary incontinence and the bowel incontinence (now resolved)was less likely than not due to the Veteran's active service to include his service-connected lumbar spine disability nor was it aggravated by the lumbar spine disability. The Board finds that opinion constitutes probative evidence on the medical nexus question, based as it was on review of the Veteran's documented medical history and assertions and physical examination. The June 2013 opinion provided rationales based on a discussion of the pertinent evidence of record, to include both favorable and unfavorable medical findings within the claims file. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The June 2013 VA examiner's conclusions are consistent and supported by an earlier January 2007 VA neurological disorders examination and opinion. While other evidence of record suggests the possibility that the Veteran's spinal disability might cause incontinence of the bowel and bladder, those conclusions are merely speculative and unsupported by any rationale. A medical statement using such terms as "possible" and "could have," without supporting clinical data or other rationale, is too speculative in order to provide the degree of certainty required for medical nexus evidence. Bloom v. West, 12 Vet. App. 185 (1999). However, neither the Veteran nor his representative has presented or identified any actual contrary medical opinion that supports the claims for service connection for bowel and urinary incontinence on appeal. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In addition to the medical evidence, the Board has considered the Veteran's statements, and those of his representative, as to the alleged etiology of the Veteran's urinary and bowel incontinence. The Board notes that while the Veteran is competent to state when he noticed the onset of his urinary and fecal incontinence symptoms, he is not competent to provide a medical nexus opinion. The claim turns on the matter of medical nexus, or relationship, between a current disability and service or a service-connected disability. That is a matter within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative opinion on a medical matter requiring specialized knowledge regarding the etiology of urinary and fecal incontinence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Routen v. Brown, 10 Vet. App. 183 (1997). Therefore, the lay assertions do not provide probative evidence that it is at least as likely as not that the urinary and fecal incontinence are related to service or a service-connected disability. Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for urinary incontinence and for fecal incontinence and each of the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for urinary incontinence, to include as secondary to a service-connected lumbar disability, is denied. Entitlement to service connection for bowel incontinence, to include as secondary to a service-connected lumbar disability, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs