Citation Nr: 1630791 Decision Date: 08/03/16 Archive Date: 08/11/16 DOCKET NO. 12-36 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for loss of vision. 2. Entitlement to service connection for a bladder disability, to include as secondary to service-connected disability. 3. Entitlement to service connection for a right thumb disability, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service in the U.S. Army from May 2001 to June 2004. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from rating decisions dated in September 2009 and December 2013 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2016, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant, on the record at her hearing in February 2016, withdrew her appeal with respect to her request to reopen a claim for entitlement to service connection for bilateral hearing loss; and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to her request to reopen a claim for entitlement to service connection for bilateral hearing loss; and it is dismissed. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The issue of whether new and material evidence has been received to reopen a claim for service connection for loss of vision is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right thumb osteoarthritis has not been related by competent medical evidence to active duty service, to include frostbite on right hand, or to service-connected disability, to include carpal tunnel syndrome. 2. The Veteran's urinary incontinence has not been related by competent medical evidence to active duty service or to service-connected disability, to include lumbar strain with degenerative disc disease with osteoporosis. CONCLUSIONS OF LAW 1. Urinary incontinence was not incurred in or aggravated by service and is not causally related to service-connected disability. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 2. Right thumb osteoarthritis was not incurred in or aggravated by service, may not be presumed to have been so incurred, and is not causally related to service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June 2013 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The first question that must be addressed is whether chronic urinary incontinence is factually shown during service. The Veteran's service treatment records indicate that in December 2001, the Veteran presented with complaints of vomiting and pain in her stomach for a week. She also noted increased urination with variable volumes. In May, June, and July 2002, the Veteran denied any bladder symptoms. In December 2002, the Veteran presented for emergency care with complaints of chronic back pain for one year since being involved in a motor vehicle accident. A few days later, she returned for follow-up. At that time, the Veteran reported frequency, urgency and incomplete voiding. In August 2003, the Veteran presented with history of frequent urination for two days. Assessment was urinary tract infection. In December 2003, the Veteran complained of leaking fluids with coughing. Assessment was suspect stress urinary incontinence. In February 2004, the Veteran was seen for pre-term contractions. She reported being unable to void; she denied urgency and frequency. Assessment included urinary tract infection. In August 2002, the Veteran presented with complaints of frostbite on two finger of the right hand. The Veteran stated that she had frostbite and that numbness reoccurred every time the weather changed. The Veteran reported that her fingers changed color. Physical examination of the fingers was normal. Despite in-service urinary tract symptoms and complaints of right hand frostbite symptoms, the Board cannot conclude a "chronic" urinary tract condition or a chronic right thumb condition was incurred during service. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury or disease. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Thus, there is no medical evidence that shows that the Veteran suffered from a chronic bladder or urinary tract disorder or a right thumb disorder during service. As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Arthritis can be service-connected on such a basis. However, there is no evidence of right thumb arthritis within the first year after the Veteran's discharge from service. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). No medical professional, however, has ever related the Veteran's bladder/urinary incontinence or right thumb osteoarthritis to her period of military service. The Veteran underwent VA examination in October 2004, less than four months after her discharge from service. At that time she reported frostbite or cold injury exposure to the right index and middle finger in March 2002 during service in California in freezing temperatures. The Veteran reported that her fingertips became cold and turned purple. She sought treatment through the troop medical center for rewarming that took three hours for color to return to normal. The Veteran reported that this happened twice in March 2002. She denied skin sloughing and injury to nails. There were no symptoms noted at that time including joint stiffness. Physical examination demonstrated normal color and temperature of fingertips and normal capillary filling. Sensation was intact to touch, temperature and vibration. Range of motion of the right thumb was normal. X-ray of the right hand was normal. The examiner diagnosed the Veteran as having frostbite to index and middle finger of the right hand with no residuals. There was no mention of frostbite on the right thumb at this examination. The Veteran underwent VA examination in November 2015 at which time the examiner noted that the veteran was service connected for right carpal tunnel and had been recently diagnosed as having mild beginning osteoarthritis of her right thumb by x-ray on December 15, 2012. The examiner noted that according to a widely-utilized, literature-based medical reference source, "Up-To-Date," carpal tunnel syndrome did not have a causal effect to the development of osteoarthritis of the thumb. At the October 2004 VA examination, the Veteran also reported episodic urinary tract infections six times a year with the last infection being one month prior. VA examination in August 2009 indicates that a review of systems reveals no urinary incontinence, urgency, retention, or frequency. VA examinations dated in June 2012 and January 2016 indicated that the Veteran did not have any other neurologic abnormalities or findings related to thoracolumbar spine condition such as bladder problems. An August 2013 Primary Care E & M Note indicates a diagnosis of urinary stress incontinence likely due to having multiple childbirths. A Gynecological Conditions Disability Benefits Question completed in November 2013 indicates a diagnosis of urinary incontinence. With respect to the question of whether urinary incontinence was due to a gynecologic condition, the examiner noted, "unknown" and indicated it was stress incontinence. The Veteran underwent VA examination in November 2013 at which time the examiner opined that her urinary incontinence was less likely as not (less than 50/50 probability) cause by, or a result of, or aggravated by the result of lumbar spine degenerative disc disease with osteoarthritis and bilateral lower extremity radiculopathy. The examiner agreed that the urinary incontinence was more likely due to the Veteran's female stress incontinence diagnosed by her VA primary care physician. The examiner noted that according to a widely-utilized, literature-based medical reference source, "Up-To-Date," urinary incontinence is found with neurological condition Cauda Equina Syndrome (CES): Less than 1% develop massive disc herniations that can affect the entire cauda equina with significant limb weakness and/or bowel/bladder sphincter disturbance. This is considered a surgical emergency as neurologic recovery correlates with timely decompression. Seventy percent of these patients develop symptoms within hours to days of onset of pain. The examiner stated that the Veteran's lumbar degenerative joint disease with bilateral lower extremity radiculopathy was less likely the cause of her stress incontinence since she did not have CES. Thus, the record is absent evidence of a chronic bladder disorder and a chronic right thumb disorder during service, evidence of right thumb osteoarthritis within a year following service, probative evidence of continuity of symptomatology, and, most significantly, medical evidence of a nexus between the Veteran's active duty service or a service-connected disability and either chronic urinary incontinence or right thumb osteoarthritis. The Board must also consider the Veteran's own opinion that her left thumb and incontinence are related to active service or service-connected disabilities. In this case, the Board does not find her competent to provide an opinion regarding the etiology of these disorders as the question of the cause of these conditions is of the type that is beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). While she is competent to report symptoms such as pain, discoloration, or leakage, medical issues such as her right thumb arthritis and her incontinence require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, are not susceptible of lay opinions on etiology, and the statements of the Veteran therein cannot be accepted as competent medical evidence. The most probative and the competent evidence of record does not support a finding that the Veteran's current right thumb disability or incontinence are related to her active service or a service-connected disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for a bladder disability is denied. Entitlement to service connection for a right thumb disability is denied. REMAND At the February 2016 Board hearing, the Veteran identified treatment records that have not been associated with the file. The Veteran identified Optical Outlet, Vision Works, and Premier Eye Association. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for her eye/vision condition that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records, to include Optical Outlet, Vision Works, and Premier Eye Association, not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that she may also submit any evidence or further argument relative to the claim at issue. 2. If any additional pertinent records are received, the case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs