Citation Nr: 1446081 Decision Date: 10/17/14 Archive Date: 10/30/14 DOCKET NO. 12-30 629A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for paruresis, claimed as bashful bladder. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a back injury. 3. Entitlement to service connection for a back injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. McCurdy, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from January 1951 to November 1953. This appeal to the Board of Veterans' Appeals (Board) is from a February 2009 rating decision of the Department of Veterans Affairs (VA) Rating Office (RO) in Muskogee, Oklahoma. Jurisdiction over the matter is presently with the RO in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge (VLJ) of the Board at a videoconference hearing in August 2014; a transcript of the hearing is of record. The Board observes that the Veteran raised the issue of clear and unmistakable error with regard the August 1954 rating decision that denied service connection for a back injury. This was argued by the Veteran during the August 2014 hearing. To date, the RO does not appear to have addressed this issue and it is referred to the RO for the appropriate action. 38 C.F.R. § 19.9(b) (2013). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for paruresis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed decision dated in August 1954, the RO denied a claim for service connection for a back injury based on the finding that there was no evidence of treatment for a back injury in service or post-service. 2. The evidence received since the RO's August 1954 decision, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence demonstrates that the Veteran's back injury had its onset in or is otherwise attributable to service. CONCLUSIONS OF LAW 1. New and material evidence having been received since the RO's August 1954 decision, the claim for service connection for a back disability is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 2. The criteria for service connection for a back injury have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In this decision, the Board reopens and grants the Veteran's claim of entitlement to service connection for a back injury which constitutes a complete grant of the benefits sought on appeal. No discussion of VA's duty to notify or assist is necessary. II. New and Material Evidence The Veteran asserts that new and material evidence has been presented to reopen his claim for entitlement to service connection for a back injury. In August 1954, the RO denied the Veteran's claim for service connection for a back injury. The RO held that there was no evidence that the Veteran was diagnosed or treated for a back injury in service. Additionally, the RO stated that the Veteran did not provide medical evidence of a current back injury. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of the August 1954 rating decision. 38 C.F.R. § 3.156(b). The decision therefore became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2013). Since the August 1954 rating decision, newly-received evidence includes a letter received in July 2008 from the Veteran's brother, a physician, opining that the Veteran's "back condition is the direct result of his fall while on active duty in the Navy in 1953." Additionally, the Veteran submitted a private treatment record indicating that "he has severe degenerative disk disease." Both the July 2008 letter and April 2011 treatment record are new and material in that they raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). This claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. III. Service connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In an April 2011 private treatment record indicated the Veteran has degenerative disk disease. The requirements of Shedden element (1) have therefore been met. The Veteran's service treatment records are absent of indication of treatment for a back injury. However, the Veteran claims that in 1953, during service, he was carrying boxes of electronic equipment up the stairs with another electronic technician when one of the boxes "cut loose" and "rolled over [him] down the stairs." The Veteran submitted a statement from J.B., a fellow service member who recalled being separated from the Veteran in 1953, as the Veteran was transferred "after hurting his back." There are several other statements from 1954 that either recall the Veteran injuring his back in service or witnessing having back problems shortly after service discharge. The Veteran also submitted a statement from his ex-spouse, who stated that she remembered the Veteran telling her when he hurt his back and witnessed his back trouble after discharge. Additionally, the Board finds it compelling that the Veteran's first claim for service connection for a back injury was filed in August 1954, only 5 months after service. The criteria for Shedden element (2) have been met. With regards to Shedden element (3), the Veteran submitted a joint statement from Dr. S.G. and L.W., PA opining that "it is highly probable that [the Veteran's] initial back injury did occur while serving in the United States Navy." They went on to note that "since that time, he has had consistently chronic back pain." Additionally, a letter submitted by his brother opined that the Veteran's "back condition is the direct result of his fall while on active duty in the Navy in 1953." His brother is a physician. The Board affords much probative value to his statement. First, as a lay witness, he is able to comment on the differences in the Veteran's physical capabilities prior to and proceeding service. Also, as a medical doctor, he is competent to opine on medical nexus of the Veteran's back disability. There is nothing in the record to cause the Board to question his competence or credibility. The Board thereby finds the criteria for Shedden element (3) have been met. Thus, in light of the favorable private medical opinions, lack of conflicting medical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that entitlement to service connection for a back injury is granted. 38 U.S.C.A. §§ 1110, 5107(b);38 C.F.R. §§ 3.102, 3.303, 3.310. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a back injury is reopened. Service connection for a back injury is granted. REMAND The Veteran alleges that he developed a "bashful bladder" condition, paruresis, while in service. The Veteran's service treatment records document the Veteran's complaints of difficulty urinating while in service. Additionally, the Veteran submitted a medical opinion from Dr. C.R. relating the Veteran's paruresis to service. During the August 2014 hearing, the Veteran alternatively alleged that there is a relationship between his paruresis and his posttraumatic stress disorder (PTSD). It is unclear from the record whether this condition is a personality or an acquired psychiatric disorder, whether it pre-existed service or not, and whether is a symptom of his the Veteran's service-connected PTSD. Thus, based on a lack of clarity as to the etiology of the Veteran's current bladder condition, it is the conclusion of the Board that an opinion is needed. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AMC/RO should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his claimed paruresis. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The Veteran's claims file should be reviewed by a VA psychiatrist in order to determine the nature and etiology of his current paruresis. The psychiatrist must note that such a review was completed. The psychiatrist should answer the following questions: a. Does the Veteran's paruresis (most closely) constitute a personality disorder or an acquired psychiatric disorder? b. If the Veteran's paruresis is considered a personality disorder, were any acquired psychiatric disorders superimposed upon the personality disorder? 3. If the Veteran's paruresis is considered an acquired psychiatric disorder, the psychiatrist should answer the following questions: a. Is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran had an acquired psychiatric disorder (paruresis) that preexisted his active duty service? Specify this evidence if it exists. Specifically discuss the Veteran's service treatment records indicating difficulty urinating prior to service. b. If it is determined that a psychiatric disorder (paruresis) clearly and unmistakably preexisted service, is there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting psychiatric disorder (paruresis) was not aggravated in service beyond the natural progression of the condition? The psychiatrist must address the credible lay statements pertaining to the Veteran's difficulty urinating while stationed aboard the USS Mount McKinley. Reference should also be made to the positive nexus opinions provided by Dr. C.R. and Dr. A.S. c. If there is insufficient evidence showing that a psychiatric disorder (paruresis) preexisted service (i.e., a lack of clear and unmistakable evidence), is it at least as likely as not (a 50 percent probability or greater) that the Veteran currently has a psychiatric disorder (other than PTSD) that had its onset in service or is otherwise etiologically related to his active service? d. If the Veteran's paruresis is considered to be an acquired psychiatric disorder but not found to have been caused or aggravated by his active service, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's paruresis was caused by OR aggravated by the Veteran's service-connected post-traumatic stress disorder? The examiner should comment on whether paruresis is a symptom of the Veteran's PTSD or a separate and distinct psychiatric disorder. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Rationale for all requested opinions shall be provided. If the psychiatrist cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Thereafter, the RO/AMC should readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs