Citation Nr: 18158908 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-54 804 DATE: December 18, 2018 ORDER Entitlement to service connection for urinary incontinence as secondary to service-connected diabetes mellitus, type II is denied. REMANDED Entitlement to a compensable disability rating for hairline fracture of middle phalanx of middle finger is remanded. Entitlement a disability rating in excess of 30 percent for bowel incontinence, status post fistula surgery is remanded. FINDING OF FACT The Veteran’s urinary incontinence is neither proximately due to nor aggravated beyond its natural progression by his service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for urinary incontinence as secondary to service-connected diabetes mellitus, type II are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to November 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions. A July 2015 rating decision assigned a 30 percent disability rating for the Veteran’s bowel incontinence, status post fistula surgery, effective March 17, 2015. A March 2016 rating decision denied the Veteran’s claim for service connection for urinary incontinence as secondary to service-connected diabetes mellitus, type II. An October 2016 rating decision continued the noncompensable disability rating for hairline fracture of middle phalanx of middle finger. Service Connection Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows 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). Directly applicable to this matter, service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). The Court has construed this provision as entailing “any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition.” Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, the evidence must show: (1) that a current disability exists; and (2) that the current disability was either: (a) caused by; or (b) aggravated by a service-connected disability. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for urinary incontinence as secondary to service-connected diabetes mellitus, type II. The Veteran maintains that his urinary incontinence is a result of his service-connected diabetes mellitus, type II. The Board finds that the competent evidence of record demonstrates that the Veteran has urinary incontinence. However, the competence evidence of record does not show that the Veteran’s urinary incontinence is caused or aggravated by his service-connected diabetes mellitus, type II. The Veteran underwent a VA Urinary Tract (Including Bladder and Urethra) Conditions (Excluding Male Reproductive System) Disability Benefits Questionnaire (DBQ) in March 2016. The medical opinion provides that the Veteran has a current diagnosis of enlarged prostate with lower urinary tract symptoms (urinary urge incompetence). The medical opinion advises that it is less likely than not that the Veteran’s urinary urge incontinence is proximately caused by his diabetes mellitus, type II. Instead, the medical opinion states that examinations and flow studies demonstrate that the Veteran’s urinary incontinence is a result of an enlarged prostate due to the normal male aging process. In support, the medical opinion cites to the Veteran’s VA treatment records, which show the Veteran’s treating physician provided an assessment and plan of enlarged prostate with lower urinary tract symptoms. The Veteran was also provided with a November 2016 addendum VA medical opinion concerning the etiology of his urinary incontinence. The medical opinion states that the Veteran’s urinary urge incontinence is less likely than not proximately due to his diabetes mellitus, type II. In support, the medical opinion cites to the Veteran’s VA treatment records that link his urinary urge incontinence to benign prostatic hypertrophy. The medical opinion notes that benign prostatic hypertrophy is a common cause of urinary urge incontinence and that the presence of benign prostatic hypertrophy urinary urge incontinence is most likely a clinical manifestation of benign prostatic hypertrophy. Further, the medical opinion advises that while diabetic neuropathy could affect nerves in the bladder causing the bladder to overreact, this does not happen clinically and any opinion linking the Veteran’s urinary urge incontinence and diabetic neuropathy would be based on mere speculation as diabetes mellitus only affects the lower extremities and almost never involves the upper extremities except in the most severe uncontrolled and long-standing diabetes mellitus. The medical opinion also states that any neuropathic symptoms not involving the lower extremities will almost always be a result of an unrelated condition such as cervical radiculopathy and benign prostatic hypertrophy. The addendum medical opinion also provides that it is less likely than not that the Veteran’s urinary urge incontinence is aggravated beyond its natural progression by his diabetes mellitus, type II. The medical opinion notes that a baseline level of severity of urinary urge incontinence could not be determined because benign prostatic hypertrophy is a progressive condition that naturally worsens with aging and therefore urinary urge incontinence attributed to an enlarged prostate will similarly worsen with aging as the prostates enlarges. Further, the medical opinion advises that a baseline severity cannot be established as urinary urge incontinence is also associated with aging and therefore it will naturally worsen with aging. The medical opinion demonstrates that diabetes mellitus, type II has no permanent impact on urinary urge incontinence and does not affect the underlying cause of the Veteran’s urge incontinence, which is an enlarged prostate. The medical opinion also reiterates the above rationale concerning the relationship between diabetic neuropathy and urinary urge incontinence in finding no aggravation. The Board finds that the VA medical opinions taken together are adequate to make a fully informed decision on the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The medical opinions are based upon review of the claims file and medical history, as documented in the treatment records, and provide thorough explanations in support of the conclusions reached containing an analysis that can be weighed against contrary opinions, such that the Board is able to make a fully informed decision. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant’s medical history and describes the disability in sufficient detail so that the Board’s evaluation of the disability will be a fully informed one); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an adequate opinion must support its conclusion with an analysis that can be weighed against contrary opinions); see also Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that examination reports are adequate when they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion,” but the report does not need to “lay out the examiner’s journey from the facts to a conclusion…as the medical report must be read as a whole…”) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that the Board is “entitled to assume” the competency of a VA examiner without “demonstrating why the medical examiners’ reports were competent and sufficiently informed”). Accordingly, the VA medical opinions are adequate for the purposes of this decision. For the above reasons, the Board finds that service connection for urinary incontinence as secondary to service-connected diabetes mellitus, type II is not warranted. Because the preponderance of the evidence is against the award of service connection for urinary incontinence, the benefit of the doubt doctrine does not apply and service connection is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App.at 55-57. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for hairline fracture of middle phalanx of middle finger is remanded. The August 2016 Hand and Fingers Examination is inadequate. See Barr, 21 Vet. App. at 312 (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D’Aries, 22 Vet. App. at 104 (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). On remand, a new VA examination must be provided to comply with Correia v. McDonald, 28 Vet. App. 158 (2016). As discussed below, the examiner did not obtain necessary information from the Veteran as to active and passive motion testing and weightbearing and non-weightbearing testing. The United States Court of Appeals for Veterans Claims (the Court), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint, or an explanation as to why such testing is not warranted or not possible. See Correia, 28 Vet. App. at 158. The August 2016 examination report does not specify that passive and non-weightbearing range of motion testing was performed, or whether such testing was considered not warranted or not possible. 2. Entitlement a disability rating in excess of 30 percent for bowel incontinence, status post fistula surgery is remanded. The August 2018 Rectum and Anus DBQ is inadequate. See Barr, 21 Vet. App. at 312; D’Aries, 22 Vet. App. at 104. The examination report does not indicate whether the Veteran’s leakage necessitates wearing of pad, or whether he experiences constant slight leakage, occasional moderate leakage, extensive leakage. However, a June 2018 written statement from the Veteran contained in his Application for Increased Compensation Based on Unemployability (VA Form 21-8940) provides that his ability to control defecation has worsened and that when he is unable to control defecation while he is working and at social activities he must return home most of the time to properly clean himself. There is no indication that the August 2018 examiner considered the Veteran’s written statement. Additionally, a November 2017 Rectum and Anus (Including Hemorrhoids) DBQ notes that the Veteran wears incontinence pads when leaving the house that leakage necessitates wearing of a pad, and that he has occasional moderate leakage. A July 2017 Rectum and Anus (Including Hemorrhoids) DBQ shows that the Veteran has slight impairment of sphincter control, without leakage and that leakage necessitates wearing a pad. A June 2015 Rectum and Anus DBQ indicates that the Veteran experiences leakage that necessitates wearing a pad. While the August 2018 examination report does not comment on whether the Veteran’s leakage necessitates wearing of a pad, there is no evidence contained in the Veteran’s claims folder that he has stopped wearing a pad. The August 2018 examination report also provides that the Veteran’s bowel incontinence, status post fistula surgery impacts his ability to work in that it requires him to wear a diaper-like apparatus and he is unable to lift, climb, carry, or predict his bowel movements. But, the Veteran’s June 2018 VA Form 21-8940 indicates that his service-connected disability forced him to stop working and he was afforded early retirement in January 2017. On remand, the Veteran must be afforded a new VA examination to evaluate the current severity of his bowel incontinence, status post fistula surgery and its impact on his ability to work. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2018 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any adequately identified physician and facilities, including Dr. Kathleen Ogino and Dr. Robert Jao. Make two requests for the authorized records from all adequately identified physician and facilities, including Dr. Kathleen Ogino and Dr. Robert Jao, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination of the current severity of his hairline fracture of middle phalanx of middle finger. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s hairline fracture of middle phalanx of middle finger alone and discuss the effect of his hairline fracture of middle phalanx of middle finger on any occupational functioning and activities of daily living. (d.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 4. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bowel incontinence, status post fistula surgery. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s bowel incontinence, status post fistula surgery alone and discuss the effect of his bowel incontinence, status post fistula surgery on any occupational functioning and activities of daily living. (d.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel