Citation Nr: 1803075 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 11-02 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for lumbar degenerative disc disease with left lower extremity lumbar radiculopathy, currently evaluated as 60 percent disabling. 2. Entitlement to service connection for a disability characterized by right hip and leg pain, to include as secondary to the lumbar degenerative disc disease. 3. Entitlement to service connection for a right hand disability, to include as secondary to the lumbar degenerative disc disease. 4. Entitlement to service connection for a neck disability, to include as secondary to the lumbar degenerative disc disease. 5. Entitlement to service connection for a shoulder disability, to include as secondary to the lumbar degenerative disc disease. 6. Entitlement to service connection for a left arm disability, to include as secondary to the lumbar degenerative disc disease. 7. Entitlement to service connection for a left hip disability, to include as secondary to the lumbar degenerative disc disease. 8. Entitlement to service connection for neurogenic bladder, to include as secondary to the lumbar degenerative disc disease. 9. Entitlement to service connection for disability characterized by left leg cramps, to include as secondary to the lumbar degenerative disc disease. 10. Entitlement to service connection for a bilateral knee disability, to include as secondary to the lumbar degenerative disc disease. 11. Entitlement to special monthly compensation based upon the need for the aid and attendance of another person, or at the housebound rate. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from August 1972 to December 1977. This matter came before the Board of Veterans' Appeals (Board) from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2015, the Board reopened claims of entitlement to service connection for a disability characterized by right hip and leg pain and for a right hand disability. The merits of those issues, as well as the remaining issues on appeal, were remanded for development of the record. The issue of entitlement to service connection for neurogenic bladder is decided below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a genitourinary disability, to include neurogenic bladder, that is related to his service-connected lumbar spine disability. CONCLUSION OF LAW The claimed genitourinary disability is not secondary to a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). A letter dated in December 2008 discussed the evidence necessary to support the Veteran's claim for secondary service connection. The Veteran was advised of the allocation of duties between himself and VA regarding the development of a claim for benefits. He was also advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant was provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. With respect to VA's duty to assist, service, VA, and private treatment records have been associated with the claims file. A VA examination was conducted, and the Board finds that it is adequate in that it was carried out by a skilled provider who reviewed the Veteran's history and explained the rationale underlying his findings and conclusions. The Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. 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 caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (West 2012). In this case, the Veteran asserts that he has a urinary disability, which has been characterized as neurogenic bladder, that is related to his service-connected lumbar spine disability. On VA genitourinary examination in June 2009, the Veteran's history was reviewed. He reported that since 2005, he had experienced urinary frequency. He noted that he drank coffee, tea, and frequent water. He stated that he voided 10 to 12 times per day, most frequently in the morning after drinking several cups of coffee. He indicated that he had not been seen by an urologist in six to eight years. He endorsed urgency, weak or intermittent stream, dysuria, and a two to three hour voiding interval. The examiner noted that there was no history of leakage, recurrent infection, obstructed voiding, stones, renal dysfunction, nephritis, hydronephrosis, cardiovascular symptoms, erectile dysfunction, or abnormal ejaculation. Physical examination revealed a generally enlarged prostate. The diagnosis was urinary frequency secondary to benign prostatic hypertrophy. The examiner stated that there was no evidence of neurogenic bladder based on the history and physical examination. He concluded that urinary frequency was not related to the Veteran's lumbar spine disability. He reasoned that the Veteran described a pattern of benign prostatic hypertrophy with urgency and frequent voiding after drinking several cups of coffee, tea, and increased water intake during the morning hours. He noted that the problem improved as the day progressed and the Veteran lowered his intake. He stated that the Veteran did not seem to have neurogenic bladder and that his symptoms appeared to be related to his enlarged prostate. Having reviewed the evidence with respect to this claim, the Board has determined that service connection is not warranted. As an initial matter, the Board observes that the evidence does not demonstrate, nor does the Veteran contend, that his claimed urinary disability is related to service. Rather, he maintains that he has symptoms that are related to his service-connected lumbar spine disability. The Board notes that for the purpose of secondary service connection, a lumbar spine is subject to service connection. However, the Veteran has neither produced nor identified competent evidence showing that his service-connected lumbar spine disability either caused or aggravated the diagnosed urinary frequency. On the other hand, the June 2009 VA examiner concluded that the appropriate diagnosis was urinary urgency, and that it was related to the Veteran's benign prostatic hypertrophy. He specified that the evidence did not support a diagnosis of neurogenic bladder. The VA examiner considered the Veteran's documented history, but ultimately concluded that the diagnosed urinary frequency was not related to the service-connected lumbar spine disability. The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider. Even if the Veteran's statements asserting that his genitourinary disability is related to his lumbar spine disability were found to be competent, credible and probative, they are still outweighed by the examiner's findings and opinion. The opinion was provided by a medical professional who reviewed the history, interviewed the Veteran, and provided opinions supported by adequate rationale with citations to evidence in the record and the Veteran's reported history. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to a service-connected disability. While the record demonstrates that the Veteran has a diagnosis of urinary frequency, it does not contain reliable evidence which relates this claimed disability to a service-connected disease or injury. For these reasons, the Board concludes that the claim of entitlement to service connection for a genitourinary disability, to include neurogenic bladder, must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a genitourinary disability, to include neurogenic bladder, is denied. REMAND Upon review of the record in this case, the Board has concluded that an additional remand is necessary. The Veteran most recently underwent an examination of his spine in September 2008. However, this examination was for the purpose of determining whether special monthly compensation was warranted based on the need for aid and attendance, and did not encompass a comprehensive spine examination. Moreover, as stated by his representative in the November 2017 appellate brief, the Veteran's lumbar spine disability has worsened. In that regard, the Board observes that there is evidence that the Veteran has undergone recent treatment by a pain specialist, to include numerous epidural injections in his lumbar spine. Because the only examination of the spine conducted during the course of this appeal was not comprehensive, and in light of evidence suggesting worsening, the Board concludes that an examination is necessary to determine the current severity of the Veteran's lumbar spine disability. The Veteran also seeks service connection for disabilities of the hips, legs (to include cramps), right hand, neck, shoulders, left arm, and knees. While he has submitted statements suggesting that these claimed disabilities are directly related to service, he has also made statements attesting to numerous falls caused by his lumbar spine disability, as well as statements indicating that medical providers have told him that there is a relationship between his lumbar spine disability and these claimed disabilities. This raises the theory of entitlement to service connection on a secondary basis, and future adjudication of these claims should encompass both direct and secondary service connection. With specific regard to the claims for hips, leg, and knee disabilities, the Board observes that there are neurologic symptoms related to the Veteran's lumbar spine disability. The Veteran should be afforded a neurological examination to determine whether any disability of the hips, legs, or knees is part and parcel of the lumbar spine disability neurologic manifestations, or a separate disability. If separate disabilities are identified, on opinion regarding their etiology should be obtained. Regarding the remaining disabilities (right hand, neck, shoulders, left arm), as well as the claim of entitlement to special monthly compensation based on the need for aid and attendance, the Board notes that medical evidence obtained as the result of examination of the Veteran may also render evidence supportive of these claims. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on these issues. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA orthopedic and neurological examination to determine the severity of his service-connected lumbar spine disability and the etiology of any diagnosed hip, leg, or knee disability. Any indicated diagnostic tests and studies should be accomplished. Lumbar Spine All pertinent symptomatology and findings referable to the Veteran's lumbar spine disability should be reported in detail, including range of motion (ROM) testing. The examiner should set forth the Veteran's range of motion findings and note any pain, pain on use, weakness, incoordination, or excess fatigability. If feasible, the examiner should portray any additional functional limitation of the knees due to these factors in terms of degrees of additional loss of motion. If not feasible, this should be stated and discussed in the examination report. If the Veteran does not have pain or any of the other factors, that fact should be noted as well. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All associated neurologic manifestations should also be described. In this regard, the examiner should specify whether there is any disability of the hips, legs, or knees that is the result of neurologic manifestations related to the lumbar spine disability. If there are separate and distinct disabilities of the hips, legs, or knees, the examiner should provide an opinion regarding whether it is at least as likely as not that any such disability is related to service or to the service-connected lumbar spine disability. The Veteran's claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. The complete rationale for any conclusion reached should be provided. 2. Review the examination report(s) for compliance with the Board's remand directives. Any inadequacies should be addressed prior to recertification to the Board. 3. Then, readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant and his representative have 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. §§ 5109B, 7112 (West 2012). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs