Citation Nr: 20046907 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 14-15 314A DATE: July 14, 2020 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a bladder condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a right ankle disability at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a left ankle disability at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran’s bladder condition is at least as likely as not related to her active duty or to a service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for overactive bladder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training (ACDUTRA) from June 1989 to August 1989. She had Reserve service with periods of active duty service from January 1991 to August 1991, September 2000 to April 2001, and from February 2003 to April 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in December 2017. A transcript is of record. In July 2018, the Board remanded the claims for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). 1. Entitlement to service connection for a right ankle disability 2. Entitlement to service connection for a left ankle disability The Veteran seeks service connection for a bilateral ankle disability. She contends that she has an ankle disability that is secondary to her service-connected low back disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of an ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran underwent a VA examination in February 2010. The Veteran reported that she had a bilateral leg condition that had existed since 2006. She reported pain in the knees and ankles, which occurs constantly. She reported that the pain was aggravated by physical activity, and relieved by rest. Physical examination showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, subluxation, or guarding of movement. X-ray imaging of both ankles was within normal limits. The examiner found that there was no diagnosed ankle condition, because there was no pathology to render a diagnosis. The Veteran underwent a VA examination in February 2011. The Veteran reported a bilateral ankle condition that started in 2006. She indicated that she injured her ankles after her back injury in 2006, and that her symptoms continued to the present. Physical examination of the ankle revealed pain, stiffness, weakness, decreased speed of joint motion, swelling, and tenderness. X-ray imaging revealed normal bones, joints and soft tissues. No fracture dislocation was seen. The examiner diagnosed ankle strain, but indicated that a more precise diagnosis could not be rendered as there was no objective data to support a more definitive diagnosis. The Veteran underwent a VA examination in June 2019. The Veteran reported swelling in her legs and ankles with sitting or standing for long periods. She reported that this causes back pain with pain down both legs into her feet. The examiner opined that the Veteran did not have an ankle diagnosis. He explained that the Veteran’s ankle pain was associated with increased back pain and radicular symptoms of pain in the back of the leg down to the ankles and feet. This was consistent with radiculopathy, and did not indicate a separate ankle condition. The examiner noted that the February 2011 VA examination diagnosed bilateral ankle condition. The examiner found the diagnosis of ankle strain incorrect. The examiner noted an acute ankle complaint in 2001, but noted that service treatment records showed a normal examination without a diagnosis and that there were no symptoms, treatments, or diagnoses of an ankle condition outside the April 2001 treatment. The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. However, the June 2019 VA examination determined the identified signs and symptoms of the Veteran’s condition relate to radiculopathy, for which the Veteran is already service-connected. Thus, the symptoms considered in this rating completely overlap with the ones that would be considered in the Veteran’s claimed ankle condition. To award service connection for symptoms of ankle pain would only result in pyramiding the diagnoses. See 38 C.F.R. § 4.14. The June 2019 VA examiner evaluated the Veteran and determined that, while she experienced subjective symptoms of ankle pain, she did not have a diagnosis of an ankle condition. Further, despite consistent treatment, treatment records do not contain a diagnosis of a bilateral ankle condition. While the February 2011 VA examination stated that the Veteran had bilateral ankle strain, it also determined that the Veteran’s physical examination findings were normal. Instead, the statement appears to be based on the Veteran’s brief treatment for an acute ankle injury in 2001. Consequently, the Board gives more probative weight to the June 2019 VA examiner’s findings, which determined that the Veteran’s ankle pain was related to her intervertebral disc syndrome and radiculopathy. While the Veteran believes she has a current diagnosis of a bilateral ankle disability, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the June 2019 VA examination and opinion, the only competent medical evidence. Given the findings of no current disability, the preponderance of the evidence is against the claim for service connection for a bilateral ankle condition, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for overactive bladder The Veteran seeks service connection for a bladder condition. In her May 2014 substantive appeal, she reported that she had experienced bladder symptoms since she returned from her tour in Kuwait/Iraq. At her October 2017 hearing, the Veteran reported her bladder symptoms started in 2006 during Reserve service. The Veteran has asserted that her bladder symptoms may also be related to her service-connected intervertebral disc syndrome (IVDS), lumbar spine disability. The Veteran’s DD 214 related to her deployment to Kuwait shows she served a tour of duty in Kuwait from April 2003 to March 2004. Service treatment records do not reflect complaints related to the Veteran’s bladder. The Veteran’s July 2006 Reserves retention examination shows she reported anxiety, panic attacks and depression. Post-service medical records, including a June 2019 VA examination report, show a current diagnosis of overactive bladder and mixed incontinence. Thus, the question becomes whether the current bladder disability is related to active duty service, or to her service-connected lumbar spine IVDS. After careful consideration of the evidence, the Board finds it is not. The Veteran has provided conflicting testimony as to when her symptoms onset. As noted above, she reported in her substantive appeal that they began in 2004, but she informed VA examiners, and testified at the hearing before the undersigned, that they onset in 2006, after active duty. Regarding causal nexus, the Veteran underwent a VA examination in February 2010. She indicated that she began having bladder problems related to a spine injury in 2006. Following examination, the VA examiner diagnosed overactive bladder with mixed stress and urge incontinence. The examiner opined that the current condition is not related to service or the service-connected disc disease. The rationale was that it is common in her age group and frequently related to residuals of pregnancy. He explained that her symptoms are typical of stress and urge incontinence, not neurogenic bladder. At a VA examination in February 2011, the Veteran reported symptoms of urgency and incontinence onset in 2006 after her back injury with increased in urgency and leaking and frequency since. The examiner opined that he would have to resort to mere speculation to opine as to whether the current bladder condition was due to or aggravated by the lumbar spine. The examiner explained that although a severe spinal injury (generally with paralysis and transection or caudal equina syndrome) can result in bladder dysfunction, the current medical literature does not support bladder involvement with the degree of objective lumbar spine disease currently present in this Veteran. He found no other current objective evidence that the Veteran’s service-connected lumbar spine condition could have caused or aggravated to any degree, her current claimed bladder condition. In support of her claim, the Veteran submitted a news article that referenced a May 2014 medical study in the Journal of Urology entitled “Overactive Bladder and Mental Health Symptoms in Recently Deployed Female Veterans,” https://www.jurology.com/article/S0022-5347(13)06072-2/pdf. This study discussed a potential link between overactive bladder symptoms in young female war veterans and problems commonly reported after deployment including mental health symptom. The study abstract shows the authors concluded that overactive bladder symptoms occurred in 22 percent of recently deployed female veterans and were associated with self-reported mental health symptoms and traumatic events, including prior sexual assault. Pursuant to the July 2018 remand, the Veteran underwent a VA examination in June 2019. The Veteran reported that she experienced a sexual assault during service, specifically while deployed to Kosovo. The examiner noted that she had previously reported onset of her bladder symptoms was in 2006 after a back injury. The examiner noted the current diagnosis of overactive bladder and mixed incontinence. The examiner reviewed the claims file, the May 2014 study referenced by the Veteran, and additional relevant literature. The examiner opined that the Veteran’s bladder diagnoses were less likely than not incurred or caused by the claimed in-service event or illness. He acknowledged that the medical literature showed an almost two-fold increase in overactive bladder symptoms in female veterans returning from deployment with underlying mental health issues, but noted the study only addressed symptoms, not etiology. He also explained that there are no entries in the service treatment records for complaints of bladder symptoms and the history is subjective only. The aforementioned competent medical evidence demonstrates that the Veteran’s bladder disorder is not related to active duty, nor is it caused or aggravated by her service-connected IVDS. The Board also notes that the Veteran is not service-connected for any psychiatric disorder. The VA opinions are considered competent and probative because the examiners are licensed medical professionals who have considered the lay history provided by the Veteran and her cumulative clinical history as contained in the medical records. The June 2019 considered the Veteran’s proffered medical treatise evidence, but still concluded that her current bladder condition is not related to military service. The examiners’ findings are therefore probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). There are no medical opinions to the contrary. To the extent the Veteran has asserted her current bladder disability is due to service, her lay assertions outweighed by the competent and nexus opinions provided by the VA examiners. The Board has considered the treatise evidence provided and notes that a medical article or treatise can be probative evidence when combined with an opinion of a medical professional if the medical article or treatise deals with generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). In this case, the June 2019 VA examiner considered the treatise evidence and found it insufficient to establish a causal relationship to an aspect of service. Moreover, the Veteran has provided inconsistent statements as to the initial onset of her bladder symptoms. The Veteran has not demonstrated the requisite expertise to determine whether her bladder symptoms are related to active duty service or to her service-connected IVDS. Determining the etiology of overactive bladder (to include whether it is caused or aggravated by other disabilities), is outside the scope of what we can observe with our senses. Rather, this requires clinical training, diagnostic studies, and medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Upon review of the record, the Board finds the evidence is not in equipoise as to whether the Veteran’s current bladder disability is related to service. Accordingly, the benefit of the doubt doctrine is not for application; service connection for overactive bladder is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.