Citation Nr: 1627215 Decision Date: 07/07/16 Archive Date: 07/14/16 DOCKET NO. 10-22 831A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for urinary incontinence. 2. Entitlement to service connection for myofascial pain syndrome. REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1997 to December 2001. These matters come before the Board of Veterans' Appeals (Board) from a March 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned at an October 2012 videoconference hearing, and a transcript of the hearing has been associated with the claims file. These matters were previously remanded by the Board in July 2013. As discussed below, there has not been substantial compliance as to the issue of entitlement to service connection for myofascial pain syndrome, such that an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers the right to compliance with remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall where there was substantial compliance with remand directives). No remand is required regarding the Veteran's claim of entitlement to service connection for urinary incontinence given the Board's favorable adjudication herein. As such, the issue of entitlement to service connection for myofascial pain syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's current urinary incontinence had its onset during active service and has been continuous therefrom. CONCLUSION OF LAW The criteria for service connection for urinary incontinence have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, based upon the Board's favorable adjudication of the Veteran's service connection claim herein, any error with respect to VA's duties to notify and assist the Veteran is harmless error, and no further discussion is warranted. II. Service Connection - Urinary Incontinence Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). "To establish a right to compensation for a present disability, a Veteran 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims entitlement to service connection for urinary incontinence, which she asserts had onset during active service and continued since that time. Service treatment records document a normal clinical evaluation upon service enlistment in June 1997, at which time the Veteran denied frequent or painful urination. In February 1998, the Veteran complained of increased urinary frequency, which was not a problem prior to boot camp; her condition was assessed as urinary incontinence. In January 1999, the Veteran again complained of urinary frequency and urgency. In August 1999, the Veteran reported that she lost control of her bladder the previous day and she was assessed with urinary stress incontinence. In October 1999, the Veteran reported a two-year history of urinary incontinence related to physical training, coughing, and laughing; this was also assessed as urinary stress incontinence. In December 1999, the Veteran was again assessed with urinary stress incontinence and urge incontinence. A discharge physical examination in September 2001 documents a normal physical examination, and the Veteran denied any frequent or painful urination. The Veteran has consistently reported urinary incontinence during active service and since that time. Post-service VA treatment records from November 2015 document the Veteran's daily urinary incontinence. At the October 2012 Board videoconference hearing, the Veteran testified that her urinary incontinence had onset during active service and had continued since that time. At that time, she noted she was not receiving current treatment for the condition due to a lack of medical insurance. The Veteran reported prior private treatment in 2003 or 2004; however, she did not subsequently submit any relevant private treatment records or authorize VA to obtain such records on her behalf. Upon VA examination in December 2015, the examiner diagnosed urinary incontinence of unknown etiology. The Veteran reported that her symptoms of urinary incontinence had onset in December 1997 during boot camp at Parris Island, South Carolina. She stated that the condition had gotten worse over time. The VA examiner ultimately opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated there was no current disability manifested by the urinary incontinence and noted that the Veteran did not use any urinary device except for a panty liner when there was urinary leakage, which occurred daily according to the Veteran. The Board observes that medical evidence is not categorically required when the determinative issue involves either a medical etiology or diagnosis, but rather may, depending on the facts of the case, be established by competent lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (holding that VA must consider the competency of lay evidence, and cannot reject outright such evidence on the basis that such evidence can never establish a medical diagnosis or nexus). Here, despite the December 2015 VA examiner's negative nexus opinion, the Board finds the Veteran's statements regarding continuing stress incontinence during and since active service to be competent and credible, and thus, probative of the nexus aspect of the Veteran's claim in this case. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the VA examiner's opinion is afforded less probative value given the inconsistency within the examination report which notes a diagnosis of urinary incontinence, but later states there is no current disability manifested by the urinary incontinence, despite the Veteran's report of daily urinary leakage. Accordingly, the Board finds that the evidence is at least in equipoise with respect to the Veteran's claim of entitlement to service connection for urinary incontinence. As such, the Board resolves any reasonable doubt in favor of the Veteran, and service connection for urinary incontinence is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. ORDER Service connection for urinary incontinence is granted. REMAND Although the Board regrets the additional delay, further development of the record is required to ensure that there is a complete record upon which to decide the Veteran's claim of entitlement to service connection for myofascial pain syndrome. Unfortunately, this matter must again be remanded in order to obtain an adequate VA examination and opinion due to noncompliance with prior remand directives articulated by the Board in July 2013. See Stegall, 11 Vet. App. at 271. VA's duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014). Furthermore, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The July 2013 Board remand directed that the Veteran be afforded a VA examination in order to determine whether the Veteran's myofascial pain syndrome was a manifestation of her service-connected residuals of left trapezius strain or whether it was caused or aggravated by her service-connected residuals of left trapezius strain. The Veteran was afforded a VA fibromyalgia examination in December 2015, at which time she reported myofascial pain syndrome which began in March 1998. The examiner noted there was no current diagnosis of fibromyalgia and opined that the Veteran's claimed myofascial pain syndrome was less likely than not incurred in or caused by active service. The examiner noted intermittent left trapezius pain without functional loss and stated that due to limited medical information, he could not render an opinion as to whether the Veteran's myofascial pain syndrome was aggravated by her service connected left trapezius strain without resorting to speculation. The Board finds that the December 2015 VA examination and resulting opinion are inadequate to adjudicate the Veteran's claim, as the examiner did not sufficiently address the relevant questions regarding the etiology of the Veteran's claimed myofascial pain syndrome. Notably, the examiner did not clearly identify whether the Veteran's myofascial pain syndrome is a manifestation of her service-connected left trapezius strain or whether it is a separate condition altogether. Additionally, although the examiner stated that he could not render an opinion as to whether the Veteran's myofascial pain syndrome was aggravated by her service connected left trapezius strain without resorting to speculation, this statement tends to indicate that they conditions are indeed separate. Moreover, if the conditions are separate and distinct, the examiner's conclusion that the Veteran's myofascial pain syndrome is less likely as not related to active service fails to properly consider whether her current myofascial pain is related to her diagnosed myofascial pain during active service. Given the above, an adequate VA opinion must be obtained upon remand which fully addresses all relevant evidence of record and which fully addresses the etiology of the Veteran's claimed condition, both on direct and secondary bases. See Barr, 21 Vet. App. at 312; see also Stegall, supra. Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion regarding the Veteran's claimed myofascial pain syndrome from a qualified VA examiner with experience in pain management, such as a physiatrist or neurologist. The Veteran's entire claims file and a copy of this Remand should be made available to and reviewed by the examiner in conjunction with the opinion. All indicated studies should be conducted, including a full and current VA examination if deemed necessary by the examiner, and all findings should be reported in detail. A clear supporting rationale is required for any opinion provided. The examiner is asked to provide the following opinions: (a) Whether the Veteran has a disability manifested by myofascial pain at any time during the pendency of her claim. (b) If the Veteran is found to have myofascial pain during the pendency of her claim, the examiner should opine whether it is at least as likely as not that any current myofascial pain syndrome is a manifestation of the Veteran's service-connected left trapezius strain. (c) If the claimed myofascial pain syndrome is separate and distinct from the Veteran's service-connected left trapezius strain, the examiner should then opine as to the following: (i) whether it is at least as likely as not (a 50 percent probability or greater) that any myofascial pain syndrome had its onset during active service or is otherwise etiologically related to active service. (ii) whether it is at least as likely as not (a 50 percent probability or greater) that any myofascial pain syndrome is caused by her service-connected left trapezius strain. (iii) whether it is as likely as not that any myofascial pain syndrome is aggravated (permanently worsened in severity beyond its normal progression) by her service-connected left trapezius strain. In rendering the requested opinions, the examiner must properly consider and discuss all relevant evidence of record, including service treatment records and post-service treatment records which document the Veteran's complaints and diagnoses of myofascial pain. 2. Following the above development, review the requested opinions to ensure their compliance with the above directives, and take any corrective actions deemed necessary. 3. Then, readjudciate the Veteran's claim of entitlement to service connection for myofascial pain syndrome. If any benefit sought on appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case (SSOC) and allow reasonable opportunity for response before returning the matter to the Board for further adjudication, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs