Citation Nr: 1341179 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 11-25 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a urinary disorder, to include as secondary to service-connected low back and bilateral radiculopathy of the lower extremities disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from June 1958 to June 1960, with additional active duty for training (ACDUTRA) in United States Army National Guard, including ACDUTRA in August 1961. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In December 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in May 2013, at which time, the specialist indicated the question was outside the purview of his medical specialty. In June 2013, the Board again requested an opinion of a different specialist. This requested opinion was obtained in September 2013. That same month, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. To date, the Veteran has not responded. Accordingly, the Board will proceed with the consideration of his case. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent, probative evidence of record fails to relate any currently-diagnosed urinary disorder to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a urinary disorder, including as secondary to the service-connected low back and bilateral radiculopathy of the lower extremities disabilities, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, an April 2009 letter provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in September 2012. The record also shows that VA has made reasonable efforts to obtain relevant records identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's available service treatment and personnel records, VA treatment records and examination reports, and available private treatment records. Finally, the Board obtained two VHA opinions from specialists, initially in December 2012 and again in September 2013, in an attempt to determine whether the Veteran's claimed urinary disorder is attributable to his military service or to a service-connected disability. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran presently seeks to establish service connection for a urinary disorder. Specifically, he reports he began suffering from urinary incontinence in 2007, as a result of his service-connected low back disability. It is his belief the nerves in his back are damaged. As such, he cannot always feel when he needs to use the restroom. He reports leakage about once a week if he lets his bladder get too full. The Veteran also reported he uses the restroom once or twice a night. The Board notes his service treatment records do not contain any evidence of complaints, treatment, or diagnoses pertaining to urinary incontinence. Rather, his claim is solely predicated on the fact that his urinary disorder is secondary to the already service-connected low back disorder and bilateral radiculopathy of the lower extremities. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, and the Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2013). A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether the weight of the evidence supports the claim, or the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim, and the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim 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). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other issue, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). The Board notes the Veteran's VA treatment records dated throughout the course of this appeal are negative for any reported symptomatology or treatment for urinary incontinence. However, he has provided private treatment records from Dr. Thompson, an urologist, dated from July 2008 to September 2009. In July 2008, Dr. Thompson diagnosed the Veteran with urinary incontinence triggered by bending over. These private treatment records also indicate the Veteran may have an overactive bladder or sphincter dysfunction. The Veteran is taking medications for his urinary incontinence, including Uroxatra. A January 2009 record also shows that urodynamics were done, which resulted in findings of incontinence and delay in sensation, large capacity bladder, bladder wall thickening and some element of Benign Prostatic Hyperplasia (BHP). In a January 2011 decision, the Board granted service connection for a low back disability. Thereafter, the Veteran was provided a VA compensation examination in February 2011 to assess his current disability, including whether his claimed urinary incontinence is due his low back disability. The Veteran reported urinary incontinence during the examination. Upon physical examination, the examiner stated the Veteran does not use absorbent material, and the bladder examination was normal. The examiner confirmed the prior diagnosis of incontinence with bladder wall thickening and some element of BHP. The examiner concluded that the urinary incontinence is less likely as not caused by the low back disability, and is more likely due to the bladder wall thickening and BHP. The examiner stated this was because the injury to the Veteran's back occurred almost 50 years ago. In a December 2012 letter, Dr. Thompson indicated that the Veteran described urinary incontinence, sometimes without any forewarning and sometimes triggered when he bends over. Dr. Thompson stated urodynamics were performed and the Veteran has a large capacity bladder with delayed sensation and instability at higher volumes. As a result, the Veteran was treated with alpha blockers. The Veteran also denied complaints of numbness or weakness in his legs. Dr. Thompson concluded that the Veteran's delayed sensation and instability at high volumes is not neurogenically based because it is not the classic incontinence associated with BPH, but in some way, is related to his prior back injury. In December 2012, the Board initially requested an opinion from an orthopedic spine surgeon to determine whether any of the Veteran's currently diagnosed urinary symptoms were manifestations of his low back and bilateral lower extremity radiculopathy disabilities, or are separate and distinct disabilities. In an May 2013 response to the Board's December 2012 request, the specialist reviewed the Veteran's MRI report of April 2007 and determined that there was no indication of compression of the nerves within the spinal canal. Further, without compression of the nerves, it is not possible for the dysfunction of the urinary bladder to be caused by degeneration of the spine surrounding it. However, as to the remaining questions, this specialist indicated that the scope of the questions were outside the purview of his medical specialty. As such, another opinion was requested from an urologist in June 2013. In September 2013, the requested opinion was submitted to the Board by a Staff Urologist and Chief of Surgery. At that time, the specialist confirmed the prior findings of urinary incontinence, delayed sensation and bladder instability, requiring double voiding to empty, nocturia, daytime frequency, and erectile dysfunction, were noted. As to whether any of the diagnosed genitourinary systems disorders on their onset in service or within one year of separation, the specialist noted the date of onset was in 20007, and provided a negative response. The examiner also noted that it was unlikely any currently diagnosed genitourinary system disorders are due to the Veteran's military service given his urinary incontinence began in 2007, and he sought treatment in 2008. Further, the specialist found the Veteran was in the primary age of voiding difficulties due to bladder obstruction from an enlarged prostate (BPH). Finally, concerning whether any diagnosed genitourinary system disorder is due to, caused by, or permanently aggravated by the Veteran's service connected low back and bilateral lower extremity radiculopathy disabilities, the specialist also provided a negative opinion. Additionally, the specialist stated that the Veteran's currently diagnosed genitourinary impairment is not a manifestation of the Veteran's service connected back disability or a part of the same disease process. As support for his unfavorable conclusion, the specialist pointed to Dr. Thompson's findings in 2008 and 2009 that clearly indicated the cause of the Veteran's incontinence symptoms was due to bladder outlet obstruction caused by an enlarged prostate. However, in the December 2012 letter, Dr. Thompson changed his diagnosis and stated that the Veteran's incontinence would not be the classic incontinence associated with BPH. The specialist indicated that these statements are inconsistent with each other as to the cause of the Veteran's symptoms. Based on the findings of the September 2013 specialist, there is no medical evidence of a nexus (i.e., link) between the Veteran's diagnosed genitourinary disorders and service such that service connection may be established. Indeed, the urologist found the Veteran was in the primary age of voiding difficulties due to bladder obstruction from an enlarged prostate (BPH) and that his diagnosed disorders are not either directly or secondarily related to his military service or service connected disabilities. The September 2013 specialist also points to the internal inconsistencies between the 2008 and 2009 statements from Dr. Thompson and the subsequent favorable opinion dated in December 2012 in support of the Veteran's claim. Therefore, the Board finds that the opinion proffered by the September 2013 specialist is competent, adequate, and highly persuasive on the question of causal nexus in this case. Further, it is found more persuasive than the opinion offered by Dr. Thompson in support of the Veteran's claim, as stated. The Court has held that it is not error for the Board to favor the opinion of one competent medical expert over that of another, provided that the Board gives an adequate statement of reasons and bases. Owens v. Brown, 7 Vet. App. 429 (1995). A medical opinion is adequate where it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." D'Aries v. Peake, 22 Vet. App. at 104. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board is cognizant of the fact that service connection for a back disability has been established. However, the September 2013 urologist specifically attributed the Veteran's disorder to his age as opposed to the back disability. In addition, the Veteran does not report recurrent urinary symptoms since service, but stated repeated the symptoms began in 2007. Finally, the Veteran submitted a medical treatise article from Scoliosis and Spine Associates stating that patients with spondylolisthesis may present with urinary incontinence or frequency. However, this literature does not refer specifically to the Veteran himself, nor is specific to the particular circumstances and events described by him with respect to his in-service and post-service medical history. Generic medical literature, which does not apply medical principles regarding causation or etiology to the facts of an individual case, does not provide competent evidence to satisfy the nexus element for an award of service connection. See Sacks v. West, 11 Vet. App. 314 (1998). The Board acknowledges that the Veteran is competent to give evidence about what he has experienced, i.e., in this case, that he has experienced symptoms such as incontinence and urinary urgency since 2007. However, as a lay person without proper medical training and expertise, he is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of a genitourinary disorder. For example, he is not competent to state that any currently diagnosed genitourinary disorders are the result of his military service or may be attributable to a service connected disability because a diagnosis of this condition involves complex medical issues relating to psychiatric evaluation. Jandreau. Because the preponderance of the evidence shows that the Veteran's diagnosed urinary disorders are not related to, had their onset in service, or may be attributable to a service-connected disability, service connection must be denied. ORDER Service connection for a urinary disorder as secondary to service-connected low back disorder and bilateral radiculopathy of the lower extremities is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs