Citation Nr: 1730371	
Decision Date: 07/31/17    Archive Date: 08/04/17

DOCKET NO.  10-09 867	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for bowel incontinence, to include as secondary to service-connected lumbar disc disease.

2. Entitlement to service connection for bladder incontinence, to include as secondary to service-connected lumbar disc disease. 

3. Entitlement to service connection or numbness and tingling of the right upper extremity, to include as secondary to service-connected lumbar disc disease.

4. Entitlement to service connection for numbness and tingling of the left upper extremity, to include as secondary to service-connected lumbar disc disease.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

L. Sinckler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1981 to May 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

In October 2015, the Board remanded this issue for further development, including for the provision of a Board Hearing.  However, the Veteran subsequently cancelled the hearing.  Accordingly, the case has since returned to the Board.

The issues of entitlement to service connection for bowel incontinence, to include as secondary to service-connected lumbar disc disease and entitlement to service connection for numbness and tingling of the left and right upper extremities, to include as secondary to service-connected lumbar disc disease, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The evidence is at least in equipoise as to whether the Veteran's bladder incontinence is caused or aggravated by her service-connected lumbar disc disease.





CONCLUSION OF LAW

The criteria for service connection for bladder incontinence, as secondary to service-connected lumbar disc disease, have been met.  38 U.S.C.A. §§ 1101, 1110 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service Connection

Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement).  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a).

Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury.  38 C.F.R. § 3.310 (2016).  In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2014).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran is seeking entitlement to service connection for bladder incontinence secondary to her service connected lumbar injury.  The Veteran first injured her back while lifting a 55 gallon trash can in 1987.  In 1988, the Veteran had a discectomy to help alleviate her back pain.  See February 2013 VA C&P Examination.  In November 1990, the Veteran was working in an office during a gas drill, when a chair and a fellow office worker fell on her.  See July 2012 Statement in Support of Claim; February 2011 Statement in Support of Claim.  The Veteran states that this incident in addition to sleeping on a cot and carrying a ruck sack made her back injury worse.  See July 2012 Statement in Support of Claim.  After this incident, the Veteran was medically retired.  See July 2012 Statement in Support of Claim.  In October 2006, the Veteran suffered neck and back related injuries due to a non-service related motor vehicle accident.

Private medical treatment records show the Veteran has a diagnosis of vertebral related bladder incontinence.  See July 2012 Neuroscience assessment (noting the Veteran as having bladder incontinence); January 2011 (stating that the Veteran has urge incontinence and feels herself voiding with bladder when she is wet); January 2014 Gastroenterology Consultant (reporting that the Veteran states she has occasional bladder incontinence); May 2011 Cystoscopy (noting a history of low back surgery and a diagnosis of neurogenic bladder); November 2012 Clinic Association (stating bladder function and symptoms likely related to vertebral disease); July 2014 DBQ (reporting the Veteran has a lumbar pathology with subsequent surgery causing neurogenic bladder).

The Veteran has also provided lay evidence to support her claim of having bladder incontinence.  The Veteran has submitted assertions that she began seeing a doctor about her incontinence in 1991/1992 but had a hard time discussing the issue with people, including doctors.  See February 2011 Statement in Support of Claim (reporting that the Veteran was embarrassed by her frequent accidents).  The Veteran's brother also stated that he was a witness to the Veteran's bladder incontinence.  See January 2013 lay statement (reporting that he was driving his sister to an event and realized she had urinated on herself).  These statements from the Veteran and her brother are competent and credible, as there is no reason to doubt the recollection or the veracity of these statements.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Barr, 21 Vet. App. at 309 (2007) (lay testimony is competent as to matters capable of lay observation); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (observing that appellant was competent to testify as to factual matters of which he had first-hand knowledge). 

The Board acknowledges the negative evidence of record in the form of the November 2008 and May 2016 medical opinions disassociating the Veteran's current bladder incontinence from her service connected lumbar disability.  The Board declines to accept these medical opinions, however, as they fail to account for the Veteran's lay statements, the Veteran's private medical physician's statements regarding her disorder, the Veteran's full medical history of bladder incontinence, and her continuity of symptomatology.  See Wilson v. Derwinski, 2 Vet. App. 614 (1992) (The Board is free to assess medical evidence and is not obligated to accept a physician's opinion.); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning).  

While establishing that the Veteran had stress incontinence prior to the motor vehicle accident, the November 2008 examiner bases the denial on the fact that the Veteran's motor vehicle accident aggravated her urinary incontinence.  See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that "[e]xamination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion").

Alternatively, the examiner who authored the May 2016 VA examination failed to address the fact that the Veteran was diagnosed with a neurogenic bladder at least seven years prior to the motor vehicle accident to which they have attributed its etiology.  See October 2001 Hillcrest Clinic Note (reporting of the veteran has occasional urinary incontinence); March 2010 Pleasant Grove Clinic (documenting that the Veteran has had bladder incontinence since the 1990s); May 2014 DBQ (noting a 1999 date of diagnosis for neurogenic bladder); July 2014 DBQ (noting a 2001 date of diagnosis for neurogenic bladder). 

Accordingly, the May 2016 opinion improperly relied on the false premise that the Veteran's bladder incontinence did not begin until after the 2006 motor vehicle accident, to determine that there was no link between the Veteran's service-connected lumbar disability and her bladder incontinence.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise it has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal)).  D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination must be based on consideration of the claimant's medical history and must describe the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  

Thus, the November 2008 and May 2016 medical opinions do not form a sufficient foundation upon which to base a denial of entitlement to service connection.  See Nieves, 22 Vet. App. at 304 (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"). 

Rather, medical and lay evidence reflects that the Veteran's bladder incontinence is connected to a lumbar injury and that the Veteran began to experience bladder incontinence prior to her 2006 motor vehicle accident.  Accordingly, in the absence of any probative evidence to the contrary, the Board finds that, at the least, reasonable doubt exists as to the question of the origin of the Veteran's bladder incontinence.  When resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's bladder incontinence is as likely as not attributable to her service connected lumbar disorder.  Under VA law and in such a circumstance, the claimant must prevail.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  Therefore, service connection is warranted for the Veteran's bladder incontinence disorder.


ORDER

The criteria for service connection for bladder incontinence, as secondary to service-connected lumbar disc disease, is granted. 


REMAND

Unfortunately, another remand is required in this case.  While the Board sincerely regrets the delay, the Veteran's claim for entitlement to service connection for bowel incontinence, to include as secondary to service-connected lumbar disc disease and entitlement to service connection for numbness and tingling of the left and right upper extremities, to include as secondary to service-connected lumbar disc disease is again remanded for further development in accordance with VA's duty to assist.  Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration.

The Veteran contends that her current bowel incontinence was caused or aggravated by her service-connected lumbar disc disease.  

The Veteran was afforded VA C&P examinations in November 2008 and May 2016.  Both examinations found that the Veteran lacked medical treatment for a bowel incontinence disability prior to her 2006 motor vehicle accident and thus denied service connection.  See November 2008 VA C&P Examination; May 2016 VA C&P Examination.  However, the Veteran asserts that she was treated for this disability in 1991/1992 by Dr. Brian Bull at the Hillcrest Clinic in Waco, Texas.  See February 2011 Statement In Support of Claim.  See also March 2010 Pleasant Grove Clinic (documenting that the Veteran has had bowel incontinence since the 1990s).  Given the probative value of these treatment records, these records, as well as any outstanding VA treatment records, should be obtained on remand and a new VA examination should be provided.

Similarly, the Veteran claims entitlement to service connection for numbness and tingling of the left and right upper extremities to include as secondary to her service-connected lumbar disc disease.  

The Veteran was afforded a VA C&P examination in February 2013.  The examiner opined that the Veteran's numbness and tingling of the left and right upper extremities was not a result of her lumbar disc disease.  However, the examiner did not discuss whether the Veteran's condition was aggravated by her lumbar disc disease, as required by the Court of Appeals for Veterans' Claims (Court).  See Allen v. Brown, 7 Vet. App. 439, 449 (1995); see also 38 C.F.R. § 3.310 (b). Accordingly, the Board finds a new VA examination is required to assess the nature and likely etiology of the Veteran's numbness and tingling of the left and right upper extremities.

Accordingly, the case is REMANDED for the following action:

1.  Send a letter to the Veteran requesting her to identify any relevant outstanding private treatment records and any other relevant evidence dated prior to October 2006 pertaining to his claims.  Special attention is directed to Dr. Brian Bull at the Hillcrest Clinic in1991/1992 and records at the Pleasant Grove Clinic.  See February 2011 Statement In Support of Claim; March 2010 Pleasant Grove Clinic.  The Veteran should be invited to submit this evidence himself or to request VA to obtain it on her behalf.  Authorized release forms (VA Form 21-4142) should be provided for this purpose. 

If the Veteran properly fills out and returns any authorized release forms for private records identified by her, reasonable efforts should be made to obtain such records and associate them with the VBMS virtual file.  At least two such efforts should be made unless it is clear that a second effort would be futile. 

If attempts to obtain any records identified by the Veteran are not successful, she must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file.

2.  Obtain outstanding VA treatment records, dated from October 2015 forward. 

3.  Thereafter, schedule the Veteran for an appropriate VA examination, with a different examiner than the individual who carried out the Veteran's November 2008 and May 2016 examinations, concerning the nature and etiology of her claimed bowel incontinence.  

The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination.  The examiner must note in the examination report that the evidence in the claims file has been reviewed.  The examination should include any diagnostic testing or evaluation deemed necessary by the examiner.

After reviewing the file, obtaining a complete medical, social, and occupational history pertinent to the Veteran's claimed condition, and examining the Veteran, the examiner must render an opinion as to the following:

(a)  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bowel incontinence had its clinical onset during active service or is related to any in-service disease, event, or injury, and/or whether bowel incontinence manifested within one year of service separation; and 

(b)  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bowel incontinence was caused or aggravated by her service-connected lumbar disc disease.

* Note: The issues of causation and aggravation must be addressed separately.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

In providing this opinion, the examiner should consider and address the following:

* The Veteran's competent account of experiencing in-service of experiencing bowel incontinence prior to her motor vehicle accident in October 2006;

4.  Schedule the Veteran for an appropriate VA examination, with a different examiner than the individual who carried out the Veteran's May 2014 examinations, concerning the nature and etiology of her claimed numbness and tingling of the left and right upper extremities.  

The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination.  The examiner must note in the examination report that the evidence in the claims file has been reviewed.  The examination should include any diagnostic testing or evaluation deemed necessary by the examiner.

After reviewing the file, obtaining a complete medical, social, and occupational history pertinent to the Veteran's claimed condition, and examining the Veteran, the examiner must render an opinion as to the following:

(a)  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's numbness and tingling of the left and right upper extremities had its clinical onset during active service or is related to any in-service disease, event, or injury, and/or whether numbness and tingling of the left and right upper extremities manifested within one year of service separation; and 

(b)  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's numbness and tingling of the left and right upper extremities was caused or aggravated by her service-connected lumbar disc disease.

* Note: The issues of causation and aggravation must be addressed separately.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

5.  After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claims on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and 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 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).



______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs