Citation Nr: 1343253 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 08-29 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for urinary frequency, claimed secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and N. S. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active naval service from August 1974 to January 1977 and from June 1977 to March 2000. He is a Persian Gulf War veteran. This matter arises to the Board of Veterans' Appeals (Board) from a March 2007 rating decision (issued in April 2007) by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2010, the Board adjudicated other claims on appeal and remanded the pending claim and a claim for service connection for hypertension. VA's Appeals Management Center (hereinafter: AMC) recently granted service connection for hypertension and that issue is no longer on appeal. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Service-connected diabetes mellitus arose during active service in 1992. 2. Competent and credible testimony to the effect that a voiding dysfunction arose during active service in 1992 or later has been offered. 3. Medical evidence that attributes a voiding dysfunction to service-connected diabetes has been submitted. CONCLUSION OF LAW A voiding dysfunction was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the AMC has reasonably complied with all remand instructions. As set forth at 38 U.S.C.A. §§ 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), and 3.159 (2013), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefit sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2013). Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also 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). Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may 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. Id at 448. Although the RO characterized the appeal in this case as one for service connection for BPH, the Veteran's October 2006 claim for VA benefits makes no mention of BPH. Rather, he requested service connection for a voiding dysfunction. The Board will therefore consider service connection for a voiding dysfunction. In October 1999, the Veteran submitted a pre-retirement claim (he was still on active duty) for VA disability benefits. He sought service connection for diabetes. A voiding disorder was not among the claimed disabilities. He underwent a pre-retirement physical examination in November 1999. He completed a report of medical history questionnaire and checked "no" to any history of frequent urination. A physician performed a digital rectal examination and found the prostate to be within normal limits. The RO granted service connection for diabetes in April 2000. Thus, diabetes clearly arose during active service. In October 2006, the Veteran submitted a claim for service connection for a voiding dysfunction, but provided no specific detail concerning this dysfunction. Since retirement, the Veteran has received his medical care at a naval hospital. He submitted a May 2004 naval hospital report that notes nocturia and an October 2004 medical history questionnaire on which he checked "yes" to frequent urination. Naval hospital treatment reports dated at various times from 2006 to 2008 note BPH. Thus, the earliest mention of BPH is in 2006. A February 2007 VA diabetes mellitus compensation examination report reflects that the Veteran reported a history of frequent nocturia, up to 6 times per night, and a decreased stream of urine. He did not offer a clear time-frame for the date of onset of these symptoms, but he did report some improvement in these symptoms. The examining physician dissociated the voiding dysfunction from diabetes, but found it to be associated with BPH. The examiner offered no opinion concerning the date of onset of the claimed voiding dysfunction symptoms, but did mention that diabetes mellitus arose in 1992. A July 2007 naval hospital urology clinic report by the Veteran's treating physician mentions that glucosuria/diabetes mellitus is "at least partially responsable [sic]" for the Veteran's voiding pattern. In his March 2008 notice of disagreement, the Veteran reported that diabetes arose in 1992 and that he "... was always told that it would cause me to urinate more frequently (voiding dysfunction)..." He reported that urinary frequency arose in 1999. He reported that in 2006 he began taking Uroxatrol [Uroxatral(r)?], which helped for a while. In March 2008, the Veteran's treating physician at Mayport Naval Base Hospital Primary Care Clinic mentioned that a combination of diabetes, hypertension, and hyperlipidemia increases the potential for other medical problems and sequelae, but the physician offered no specific etiology opinion for a voiding dysfunction. In February 2010, the Veteran testified before the undersigned Veterans Law Judge that he noticed increased urinary frequency in 1992 when diabetes mellitus arose. He testified that he arises many times each night to urinate. He recalled that his physician told him in 1992 that diabetes would cause increased urinary frequency, so he simply expected it and did not think to have it documented. An October 2010 VA genitourinary compensation examination report offers a diagnosis of BPH, active, with residuals of urinary symptoms (voiding dysfunction). The etiology opinion is as follows: Veteran[']s voiding dysfunction due to BPH is less likely as not due to or aggravated by active military service or the appellant's service-connected diabetes mellitus. Rationale: Medical literature review; medical record review; clinical experience. Service records are silent for BPH. Diabetes does not cause BPH. Veteran[']s symptoms are not consistent with voiding dysfunction typical of diabetes. There is no objective evidence of aggravation. There is no new objective evidence in the record or medical literature to reverse the 2007 opinion. In October 2013, the Board sought an independent medical opinion addressing the etiology of the claimed voiding dysfunction. Thereafter, a urologist within VA's health-care system offered a favorable etiology opinion with attached medical treatises supporting the opinion. The urologist agreed that the facts of the case point to diabetes, rather than BPH, as a likely cause of the Veteran's urinary frequency. The independent medical opinion is persuasive, as it is based on accurate facts and is especially well-supported by cogent reasoning and medical studies. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Because the Veteran has credibly and competently testified that urinary frequency arose in 1992, coincidentally with type II diabetes mellitus and because the favorable medical evidence (evidence that tends to agree with the Veteran's assessment) outweighs the unfavorable medical evidence, the Board concludes that the evidence favors the claim. Service connection for a voiding dysfunction will therefore be granted. ORDER Service connection for a voiding dysfunction is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs