Citation Nr: 1337372	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  10-24 736	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for a genitourinary disability, claimed as residuals of a urinary tract infection.  

2.  Entitlement to a compensable initial rating for migraine headaches.  


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESSES AT HEARING ON APPEAL

The Veteran and TB



ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from September 1999 to July 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Newark, New Jersey.

In June 2012, the Veteran testified during a Board hearing at the RO before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.  

These issues were previously before the Board in January 2013, at which time they were remanded for additional development.  Specifically, the agency of original jurisdiction was requested to schedule the Veteran for additional VA medical examinations regarding her urinary tract infection and migraine headaches.  Such examinations were accomplished in March 2013 and April 2013.  Thus, the required development has been completed and this case is appropriately before the Board.  See Stegall v. West, 11 Vet. App. 268 (1998).  

A review of the Virtual VA paperless claims processing system (Virtual VA) and Virtual Benefits Management System (VBMS) reflects that these systems contain recent VA records and other documents not found within the physical claims folder.  These documents have been noted and reviewed by the Board.  

The issue of entitlement to a compensable rating for migraine headaches 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.  


FINDINGS OF FACT

1.  The Veteran experienced onset of stress urinary incontinence during active service.

2.  The Veteran has a current diagnosis of stress urinary incontinence that had its onset in service and has been present since service.  


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, stress urinary incontinence was incurred in active service.  38 U.S.C.A. §§ 1110, 1111, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.326(a) (2013).  In the present case, the Board is granting the claim for service connection for a genitourinary disability, claimed as residuals of a urinary tract infection.  This decision constitutes a full grant of the benefit sought on appeal; therefore, no further discussion regarding VCAA notice or assistance duties is required.

Service Connection - Genitourinary Disability

The Veteran seeks service connection for a genitourinary, claimed as residuals of a urinary tract infection.  She contends she had multiple urinary tract infections during service, and began shortly thereafter to experience urinary incontinence.  Because this disability continues to the present, service connection is warranted, according to the Veteran.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  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).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  The claimed urinary tract disorder is not a chronic disease listed under 38 C.F.R. § 3.309(a) ; therefore, 38 C.F.R. § 3.303(b) does not apply.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Pursuant to the Board's January 2013 remand order, the Veteran was afforded a March 2013 VA medical examination to determine the nature and etiology of any current genitourinary disorder.  The examiner diagnosed stress urinary incontinence and opined that her disorder was unrelated to the Veteran's in-service urinary tract infections.  The examiner also noted, however, that the Veteran began experiencing stress urinary incontinence symptoms in approximately 2001, while on active duty.  As the stress urinary incontinence was itself incurred during active military service, it need not be related to the urinary tract infections in order for service connection to be awarded.  See 38 U.S.C.A. § 1110.  

As noted above, the Veteran had active military service between 1999 to 2008; thus, onset of stress urinary incontinence in 2001 would have been during active duty.  A review of the Veteran's service treatment records confirms that she did report stress urinary incontinence symptoms during service.  Moreover, she has continued to report such symptoms since service separation in July 2008, and stress urinary incontinence was confirmed on her March 2013 VA medical examination.  Though a layperson, the Veteran is competent to report such observable symptomatology as urinary incontinence, as such symptoms are observable via the senses.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  As the record reflects a current diagnosis of stress urinary incontinence which began during active duty and has been present since that time, service connection for stress urinary incontinence is warranted.  


ORDER

Service connection for stress urinary incontinence is granted.  


REMAND

Following the most recent supplemental statement of the case, issued in May 2013, additional pertinent evidence regarding the migraine headache disorder was added to the Veteran's virtual claims file in VBMS; however, a supplemental statement of the case was not issued by the agency of original jurisdiction (AOJ).  See 38 C.F.R. § 19.31.  As readjudication by the AOJ of any pending claim and issuance of a supplemental statement of the case is required upon the receipt of additional pertinent evidence, remand is required in order for the Veteran and her representative to be afforded such consideration.  

Accordingly, the case is REMANDED for the following action:

After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending compensable initial rating claim for migraine headaches in light of any additional evidence added to the record.  If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case and be afforded the applicable 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. 2013).




____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs