Citation Nr: 21074482 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-20 235 DATE: December 15, 2021 ORDER Entitlement to a 20 percent rating for residuals of bladder cancer prior to January 19, 2021 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating greater than 20 percent after January 19, 2021, for residuals of bladder cancer is denied. Entitlement to service connection for fibromyalgia is denied. REMANDED Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. Prior to January 19, 2021, the Veteran's residuals of bladder cancer have been characterized by the need to change absorbent materials two times per day due to voiding dysfunction. 2. After January 19, 2021, the Veteran's residuals of bladder cancer cause voiding dysfunction requiring the Veteran to awaken to void three to four times per night, and the need to change absorbent materials less than two times per day. 3. The competent and probative evidence of record is against finding that the Veteran's fibromyalgia was incurred during or aggravated by the Veteran's service. CONCLUSIONS OF LAW 1. Prior to January 19, 2021, the criteria to a 20 percent rating, but no higher for service-connected residuals of bladder cancer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. After January 19, 2021, the criteria to a rating greater than 20 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, DC 7528. 3. The criteria for entitlement to service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to February 1968. The Veteran testified before the undersigned Veterans Law Judge in August 2021. A transcript of that hearing is associated with the record. 1. Entitlement to a compensable rating for residuals of bladder cancer prior to January 19, 2021, and greater than 20 percent rating thereafter Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected residuals of bladder cancer has been evaluated under 38 C.F.R. § 4.115a, Diagnostic Code 7528, malignant neoplasms of the genitourinary system. Following cessation of therapeutic treatment, with a mandatory VA examination at the expiration of six months, the residuals are rated as voiding dysfunction or renal dysfunction, whichever is predominant. The Veteran's residuals have been evaluated as voiding dysfunction and urinary frequency. Under 38 C.F.R. § 4.115a, voiding dysfunction is rated with regard to urine leakage, frequency, or obstructive voiding. The use of an appliance or wearing of absorbent materials which must be changed more than four times per day warrants a 60 percent rating. The need to wear absorbent materials which must be changed two to four times per day warrants a 40 percent rating. The need to wear absorbent materials which must be changed less than two times per day warrants a 20 percent rating. For urinary frequency under 38 C.F.R. § 4.115a, a 40 percent rating is warranted for daytime voiding interval less than one hour or awakening to void five or more times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours or awakening to void three to four times per night. A 10 percent rating is warranted for daytime voiding interval between two and three hours or awakening to void two times per night. The Veteran submitted a private Disability Benefits Questionnaire (DBQ) in August 2017 during which the examiner recorded that the Veteran experiences urinary leakage that requires the use of absorbent materials that need to be changed less than two times per day. The examiner also recorded that the Veteran voids two to three times during the day and awakens twice per night to void. The Veteran was given VA examinations in April 2018 and August 2018, during which the examiners recorded that the Veteran experiences no urinary leakage requiring the use of absorbent materials. The examiner further recorded that the Veteran voids two to three times during the day and awakens twice per night to void. At the August 2021 hearing, the Veteran testified that the April 2018 VA examiner did not properly record his responses to questions. However, the Veteran narrowed his concern to questions related to restriction to urinary flow. The Veteran did not endorse the need for catherization. On VA examination in June 2021, the examiner recorded that the Veteran experiences urinary leakage that requires the use of absorbent materials that need to be changed less than two times per day. The examiner also recorded that the Veteran voids two to three times during the day and awakens twice per night to void. The competent evidence of record demonstrates that the Veteran's service-connected residuals of bladder cancer warrants a 20 percent rating prior to January 19, 2021. During this period the Veteran's disability was characterized by the need to change absorbent materials two times per day due to voiding dysfunction. This corresponds to a 20 percent rating under 38 C.F.R. § 4.115a, DC 7528. A higher 40 percent rating was not warranted during this period because the evidence does not show that the Veteran required the wearing of absorbent materials that had be changed two to four times per day or caused daytime voiding interval less than one hour or awakening to void five or more times per night. Additionally, preponderance of competent and probative evidence weighs against a rating greater than 20 percent after January 19, 2021. During this period the Veteran's disability causes voiding dysfunction that requires the Veteran to awaken to void three to four times per night, and the need to change absorbent materials less than two times per day. This corresponds to a 20 percent rating under 38 C.F.R. § 4.115a, DC 7528. The criteria for an increased, 40 percent rating, are not met or more closely approximated at any time during the appeal period. The Board acknowledges the Veteran's statements that he is entitled to higher disability ratings. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him or his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. In summary, the competent and probative evidence shows that prior to January 19, 2021, the Veteran is entitled to a 20 percent rating, but no higher, for his service-connected residuals of bladder cancer. The claim for rating greater than 20 percent after January 19, 2021, is denied. 2. Entitlement to service connection for fibromyalgia The Veteran contends that his current fibromyalgia condition is caused or aggravated by his active service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). For chronic diseases listed in 38 C.F.R. § 3.309(a), the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within one year from the date of separation from service. However, hepatitis is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. §§ 3.303(b) and 3.309(a) do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). The Veteran's STRs are silent for any complaints, treatment or diagnosis for manifestations of fibromyalgia. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). A from June 2018 private medical record notes that the Veteran has a past medical history of fibromyalgia. There are no other records in the file that support a finding of this diagnosis or a nexus opinion that any diagnosed fibromyalgia was caused by the Veteran's active service. VA medical records show several communications between the Veteran and his primary care provider where he requested to be tested for fibromyalgia. Medical treatment records do show that the Veteran is treated by pain management for chronic pain syndrome, but these records show that the Veteran's chronic pain syndrome is related to his back and neck. There are no references to fibromyalgia or any unknown etiology of the Veteran's pain. The Veteran testified at the hearing that he was diagnosed by VA with fibromyalgia in 2008 or 2009. The Veteran also stated that a private doctor had asked him if he served in Vietnam, inferring that his fibromyalgia was due to his service in Vietnam. The Veteran further reported that during service he had an area on his upper back that for unknown reasons had a stinging or stabbing pain that increased over the years and has continued since service. The Board finds that the credible competent and probative evidence is against the claim for service connection for fibromyalgia. The record does not show any incident during service where the Veteran complained of, sought treatment for or diagnosed with fibromyalgia during service. There were no pertinent defects, diagnoses or significant interval history noted on the February 1968 separation examination. The Board acknowledges the Veteran's statements at the hearing that while in service, for unknown reasons, he had an area to his upper back described as stinging and stabbing pain. STRs document that, while he was in active service, the Veteran sought medical treatment almost biweekly. The Veteran sought treatment for injuries, abdominal pain, sore throat, etc. If the Veteran was experiencing pain to his back as described, the Board would expect to find a medical record where the Veteran sought treatment for this condition as well. Therefore, the Board does not find the Veteran's statements credible that during active service he had an area to his upper back described as stinging and stabbing pain. Further, the diagnosis and etiology of the fibromyalgia is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A VA examination was not conducted as to fibromyalgia, but the Board finds the duty to assist does not require one in this case because there is no competent or credible evidence of an in-service event or indication that a current disability may be associated with service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a neck disability is remanded. The claim is remanded because the November 2019 VA medical opinion is inadequate. In providing the negative opinion, the examiner stated that they did not find evidence of chronic cervical spine condition, or degenerative disc disease of the cervical spine in the Veteran's STRs. However, the examiner does not discuss the Veteran's multiple complaints of experiencing neck pain during service and why or why not these complaints of neck pain could be related to the Veteran's current neck disability. Therefore, since the November 2019 VA examination is inadequate, a new examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination (or tele-health interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate VA examiner, to determine the nature and likely etiology of his claimed neck disability. Copies of all pertinent records must be made available to the examiner. The examiner is asked to answer the following questions: (a) Identify all currently diagnosed neck disabilities. (b) Is it at least as likely as not (50 percent probability) that any currently diagnosed neck disability was incurred in or is otherwise related to service? The examiner is asked to review and discuss the Veteran's STRs when on multiple instances when he sought medical attention for a neck injury or neck pain during service. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.