Citation Nr: 1338079 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 08-17 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a disability manifested as stress incontinence, claimed as a bladder condition. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from April 2002 to September 2002 and from January 2003 to October 2003. She was additionally a member of the Reserves, with an initial period of active duty for training from September 1985 to January 1986; she retired from the Reserves in December 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the San Diego, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which in pertinent part denied service connection for bladder and left shoulder conditions. The Veteran has relocated several times during the pendency of the claims; the appeal was certified to the Board by the Los Angeles, California, RO. The Veteran currently resides within the jurisdiction of the Fort Harrison, Montana, RO, though it appears no action has yet been taken to transfer her files to that RO. In March 2010, the Board remanded the issues to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. Those issues are now returned to the Board for further appellate consideration. The Board additionally remanded claims of service connection for an acquired psychiatric disorder and a right wrist disability; the AMC granted both claims during the processing of the Remand directives. Hence, there are no further questions or controversies remaining for consideration by the Board with regard to those matters. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA system to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. Currently diagnosed urinary urge and stress incontinence were first manifested on active duty. 2. A diagnosed left shoulder disability, to include impingement and residuals of surgery, are due to a post-service work injury, and are unrelated to an injury or disease of service origin, including in-service complaints of a left shoulder strain. CONCLUSIONS OF LAW 1. The criteria for service connection of a disability manifested as stress incontinence, claimed as a bladder condition, are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection of a left shoulder disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. With regard to urinary incontinence, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. With regard to the left shoulder, April 2006, April 2010, and June 2011 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The April 2006 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. All relevant personnel records have been obtained, consistent with the March 2010 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran did report that additional records relevant to her urinary incontinence claim were available at the VA medical center, but in light of the grant of benefits below, she is not prejudiced by the failure to obtain the latest records. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). Several VA examinations have been afforded the Veteran. Although a July 2010 examination report was found lacking due to a failure to offer a rationale for opinions expressed, that deficiency was corrected following records reviews in April and May 2012. Despite an AMC finding of deficiency in an August 2010 VA examination, no inadequacy in fact exists therein. The examiners made all required clinical findings, and the medical professionals offering adequate opinions included well-reasoned bases for their positions, founded in an accurate consideration of the history and competent evidence of record. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations of record are adequate for adjudication, and fully comply with the March 2010 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Incontinence A review of service treatment records (STRs) covering the entirety of the Veteran's active and Reserve service reveals that she initially reported difficulty with urine retention in September 2002, at an examination in connection with her release from active duty. She stated she experienced increased urination at night, as well as with stress and restlessness. During the following Reserve period and into the 2003 active duty period, she continued to report stress and urge incontinence symptoms. Military doctors referred her for private treatment, and surgery was performed in 2002. This helped for a time, but she continued to use medication and exercises to prevent urine leakage. Post-service records amply document the Veteran's continued incontinence problems. While stress incontinence appears controlled, urge incontinence still gives her difficulties. The August 2010 VA examiner reviewed the claims file and opined that the condition more likely than not started during active service. He cited the STRs showing the initial treatment at Navy facilities, as well as the continuity of the problems. However, in May 2011, the AMC returned the matter to the examiner for an updated opinion, indicating that an April 2, 2002, examination for entry onto active duty noted the incontinence. The examiner was asked to again review the file and opine as to any relationship to service. In July 2011, the examiner revisited his opinion. He noted an apparent mistake in a private doctor's recitation of the Veteran's treatment history, which had referred to 2000 or 2001 treatment. He then reported that the earliest reference he found to incontinence was the September 2002 STR not described above. He mistakenly believed this to be prior to active service, and as a result opined that it was less likely than not that the incontinence was aggravated beyond the natural progression, and was not due to or related to service, as it existed prior to active service. The Board must reject the July 2011 addendum, as it misstates the facts. September 2002 was at the end of an active duty period, not prior to one, and therefore shows onset in service. This supports the initial August 2010 determination of the VA doctor. Further, the fact which prompted the seeking of an addendum, an April 2, 2002, entry examination, cannot be corroborated. Extensive reviews of the STRs and personnel records fail to show any such examination. One separation examination document is dated August 22, 2002, and the author appears to have written and stamped over the "AUG" abbreviation, so that it might be mistaken for "APR." Further, the Board notes that the examiner, even when directed to consider the alleged April 2002 evidence, apparently could still not find any documentation of urinary problems prior to September 2002. In sum, the evidence of record documents the onset of urinary incontinence problems during active service, and the continuation of those problems to the present time. The evidence of record supports the claim, and service connection for a disability manifested as stress incontinence, claimed as a bladder condition is warranted. Left Shoulder STRs document complaints of left shoulder pain on active duty, beginning in May 2003. There was no specific trauma, and range of motion was full. The Veteran was noted to be depressed, and trigger point musculoskeletal pain was diagnosed. In October 2003, she again complained of left shoulder pain with movement, especially in abduction. No laxity or instability was present, but strength was decreased. A sprain of the rotator cuff was diagnosed. She was referred for physical therapy and given NSAIDS. In November 2003, following the Veteran's release from her most recent and last period of active duty service, the Veteran complained of left shoulder pain for three months. She had not gone to physical therapy or taken medications. A left shoulder strain was diagnosed. Post-service private records, which in large part have been associated with the Veteran's STRs as a result of her Reserve membership, document that in June 2004, at her civilian (non-military) employment, the Veteran fell backwards, jarring her left shoulder and "jamming" it in the socket. She was initially treated with physical therapy and a cortisone injection, but did not experience any relief of her pain symptoms. In September 2004, she sought additional treatment in connection with a Worker's Compensation proceeding. Dr. MJG noted increased pain with raising her arm, or activity like lifting, pushing, or pulling. As part of the evaluation, the Veteran specifically denied "any previous similar complaints." Testing, to include physical examination and radiographic studies, resulted in diagnoses of left shoulder pain, impingement syndrome, and calcific tendinitis. Dr. MJG stated that the Veteran "sustained an industrial injury to her left shoulder when she sustained a slip and fall and landed on her left shoulder. The patient had pain and difficulty to her left arm after the fall." Treatment records showed improvement with conservative treatment, though pain continued. In December 2004, authorization for surgical intervention was sought; surgery was performed in January 2005. At that surgery, a tear was identified, and a type II SLAP lesion repair was performed. In April 2005, the Veteran reported continued pain and some loss of range of motion, though it appears there was some overall improvement. Adhesive capsulitis was identified. An MRI with contrast indicated a partial tear of the rotator cuff. Surgery was recommended and performed in July 2005. Subsequently the Veteran reported continued intermittent symptoms. Her course of treatment for the industrial injury concluded in January 2006, when Dr. MJG concluded that maximum medical improvement had been reached, with the Veteran 4 percent impaired. Importantly, this impairment was attributed solely to the work accident in June 2004. The Veteran did report a new onset left shoulder pain in July 2006, after a jug of orange juice fell on her when shopping. A fractured left clavicle was discovered on x-ray. The doctor specified this injury was unrelated to the industrial accident responsible for her current disability. A VA examination was conducted in July2010; the claims file was reviewed. The examiner noted the post-service treatment by Dr. MJG, as well as current complaints of pain with reaching and other activity. Tenderness over the acromioclavicular joint and the rotator cuff was adduced. Impingement was diagnosed. The examiner stated that no opinion could be rendered regarding a relationship to service without resorting to speculation. No rationale for the conclusion was provided, and the examination is therefore inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Jones v. Shinseki, 23 Vet. App. 382 (2010). The claims file was therefore returned to the VA medical center for an adequate medical opinion. Two were obtained, in April and May 2012. Both the nurse practitioner and the physician who reviewed the claims file opined that post-service SLAP repair and related symptoms were related to the post-service June 2004 fall, and not to service. The nurse practitioner noted the in-service complaints and treatment, to include the November 2003 strain soon after separation from active duty. She commented on the lack of any complaints, treatment, or any incident of trauma between then and the treatment for her June 2004 fall at work. She concluded that because the SLAP repair was of a type necessitated by injury due to trauma, and no trauma was shown in service, it was more likely than not due to the June 2004 injury. She also commented that the cause of calcium deposits which result in calcific tendinitis is not understood, and the condition usually spontaneously resolves. The doctor who reviewed the file in May 2012 indicated he had also discussed the case with the orthopedic surgeon who had performed the July 2010 examination. The reviewer opined that the Veteran's current shoulder limitations and complaints were due to the 2004 Worker's Compensation injury. He reasoned that STRs showed a physically normal left shoulder, with only strain noted in or soon after service. No tears appeared until after the work injury, nor did the Veteran indicate ongoing problems prior to that injury, and so the fall, and not the in-service strain, was the cause of the current disability. He additionally stated that strains are soft tissue injuries affecting soft tissues, not the joint proper, and are acute and transitory in nature. Three medical opinions of record uniformly attribute the current left shoulder symptomatology to the post-service injury sustained in June 2004, almost a year after separation. The VA opinions exclude any involvement of the in-service strain in current disability, noting that while the Veteran certainly had complaints in 2003, the nature of the complaints indicated an acute and transitory condition, and the actual contemporaneous absence of continued complaints after service bolstered this finding. Moreover, the Veteran specifically denied a prior history of left shoulder problems to her treating doctor. The sole positive nexus evidence of record is the Veteran's own opinion. Although lay persons like the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the nexus question here falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). She is not describing an observed cause and effect relationship, Layno v. Brown, 6 Vet. App. 465 (1994), she is applying reasoning and drawing conclusions which require specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, even if the Veteran's statements regarding a nexus were competent, they are not fully credible. Her statements to Dr. MJG contradict current allegations of continuity of symptoms. She denied symptoms after service in 2004 and 2005. Finally, even if competent and credible, the lay nexus opinion would be clearly outweighed by the three medical opinions finding no nexus to any incident other than the 2004 fall at her civilian job. The Board notes that no disease listed as chronic and subject to presumptive service connection under 38 C.F.R. § 3.309, such as arthritis of the shoulder, has been diagnosed, and hence service connection could not be granted based on continuity of symptomatology even if the Veteran's allegations were credited. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a left shoulder disability is not warranted. (Continued on next page.) ORDER Service connection for a disability manifested as stress incontinence, claimed as a bladder condition, is granted. Service connection for a left shoulder disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs