Citation Nr: 21074719 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 11-00 120A DATE: December 16, 2021 THE ISSUES 1. Entitlement to service connection for a bladder disorder, to include secondary to lumbar degenerative disc disease, spondylosis or bilateral lower extremity radiculopathy. 2. Entitlement to an increased rating for lumbar degenerative disc disease and spondylosis, currently rated as 20 percent disabling. ORDER Entitlement to service connection for a bladder disorder, to include secondary to lumbar degenerative disc disease, spondylosis or bilateral lower extremity radiculopathy is denied. Entitlement to an increased rating for lumbar degenerative disc disease and spondylosis, currently rated as 20 percent disabling is denied. FINDINGS OF FACT 1. The Veteran's bladder disorder is not related to service or any incident of service, and is not secondary to or aggravated by any service-connected disability. 2. The Veteran failed, without good cause, to report for a VA examination that was necessary to evaluate the claims for service connection for a bladder disability and an increased rating for lumbar degenerative disc disease and spondylosis. CONCLUSIONS OF LAW 1. The criteria for service connection for a bladder disorder, to include secondary to lumbar degenerative disc disease, spondylosis or bilateral lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021). 2. The criteria for a rating in excess of 20 percent for lumbar degenerative disc disease and spondylosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 to February 1991. These matters come before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran testified before a now retired Veterans Law Judge (VLJ) in June 2012. A hearing transcript is included in the file. The Veteran was sent a letter in November 2021 requesting clarification whether he wanted a new hearing. The letter informed the Veteran that he was entitled to another hearing with a different VLJ or if he did not respond within thirty days, the Board will assume that he does not want another hearing and proceed accordingly. The Veteran did not respond to the letter and the Board has proceeded with this appeal. After conducting additional development, the Board in November 2016 denied entitlement to an increased rating for lumbar degenerative disc disease and spondylosis, and in August 2017 denied entitlement to service connection for a bladder disorder to include secondary to lumbar degenerative disc disease, spondylosis or bilateral lower extremity radiculopathy. The Veteran appealed. In February 2018, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR) and vacated the Board's November 2016 decision, and in March 2018, the Court granted a JMR and vacated the Board's August 2017 decision. In an August 2018 decision, the Board remanded the matters in accord with the February 2018 and March 2018 JMRs. Specifically, the matters were remanded to: (1) obtain potentially outstanding treatment records since March 2017, (2) schedule the Veteran for a VA lumbar spine examination to determine the current severity of his service-connected disability, and (3) schedule the Veteran for a VA examination by a urologist to determine the nature and etiology of the Veteran's claimed bladder disability. 1. Entitlement to service connection for a bladder disorder, to include secondary to lumbar degenerative disc disease, spondylosis or bilateral lower extremity radiculopathy is denied. The Veteran claims entitlement to service connection for a bladder disorder, to include secondary to lumbar degenerative disc disease, spondylosis or bilateral lower extremity radiculopathy. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110,1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be also 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. 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). A lay person is competent to report on the onset and reoccurrence of her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154(a) (2014); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran submits that his bladder disorder is caused by his lumbar degenerative disc disease, spondylosis or bilateral lower extremity radiculopathy service-connected disabilities. A review of the service medical records reveals no complaints, findings or diagnoses pertaining to a bladder disorder, or any disorder manifested by urinary incontinence. The appellant reported complaints of back pain in June 1989, but he specifically denied any change in urinary frequency. The appellant was treated for possible dysuria in January 1991. In November and October 2009, the Veteran reported experiencing eight episodes of urinary incontinence which he believed where related to his back disability. He was diagnosed with functional urinary incontinence in October 2009. In June 2012, the Veteran testified at a videoconference hearing that he experienced incontinence that only occurs during incapacitating episodes caused by his back disability. The Veteran stated that his prescribed medication caused him to urinate frequently, but explained that he does not have problems with urinary retention. The Veteran also testified that he did not have prostate, urological, kidney problems, and that his prostate-specific antigen levels were within normal range. In September 2014, Dr. B.M., a private physician submitted a letter stating that the Veteran has been in his care since July 2009, with recurrent symptoms of functionary urinary incontinence. A medical opinion was secured from a VA physician in July 2015. The examiner noted the Veteran's complaints of urinary incontinence dating to 2008. The Veteran explained that he experienced a loss of bladder control at the times when he experienced severe back pain. Since then, he reportedly experienced intermittent urinary incontinence predominantly related to severe back pain episodes. The Veteran recounted that around May 2015, he experienced four episodes of incontinence in one week, but had no further episodes of incontinence to the date of his examination. The Veteran also reported experiencing an episode of bedwetting. He did not report history of urinary infection or urinary tract trauma. The examiner noted that no urological problems have been identified to be responsible for the appellant's intermittent urinary incontinence. The examiner also documented the Veteran's complaints of voiding during the daytime every two hours, because he felt like he had to urinate while having radiating pain around the belt area. The Veteran reported the need to void 6 times per night. He also reported using absorbent material at nighttime. He did not report experiencing obstruction of urination. The examiner did not find signs or symptoms attributable to a bladder fistula, urethral fistula, bladder injury, surgery, renal dysfunction or a neurogenic or severely dysfunctional bladder. The VA examiner also referenced the Veteran's November 2009 evaluation, where no evidence of urinary obstruction was found. Ultimately, the examiner diagnosed the Veteran with intermittent urinary incontinence, but opined that the condition was less likely than not related to the Veteran's degenerative spinal disease. The Veteran was afforded another VA examination in March 2017 by a VA neurologist. The examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. The neurologist found that the Veteran did not have a central nervous system disorder. He determined that the Veteran's bladder emptied at a normal rate. The examiner considered the Veteran's description of having incontinence with flares of back pain, and his claimed lack of bladder sensation when incidents occurred. The neurologist found, however, that incontinence would be constant with the absence of bladder sensation, if caused by his lumbar degenerative disc disease, spondylosis or bilateral lower extremity radiculopathy. The neurologist also opined that the episodic nature of the Veteran's complaints was not consistent with abnormalities of bladder innervation. The examiner opined that the Veteran's uncontrollable urination was less likely than not (less than 50% probability) incurred in or caused by his service-connected lumbar degenerative disc disease, spondylosis or the claimed bilateral lower extremity radiculopathy. In August 2017, the Board denied the Veteran's claim based on the above evidence. However, in the April 2018 JMR the Court found the Board erred when it did not explain why it found that the Veteran's bladder disorder was not aggravated by his service-connected disabilities and vacated the Board's decision. In September 2018, the Board remanded this matter in order to obtain potentially outstanding treatment records, and to schedule the Veteran for a VA examination with a urologist in order to obtain an opinion as to whether any claimed bladder disorder was caused or aggravated by his service-connected disabilities. Records show that VA attempted to obtain outstanding treatment records, and that the Veteran was scheduled for a VA lumbar spine examination. See August 2019 Subsequent Development Letter; December 2019 Subsequent Development Letter; see also April 2021 Subsequent Development Letter. However, he failed to attend the examination despite proper notification. Indeed, according to VA records, the Veteran canceled the scheduled examination, indicating that he was living overseas and advised VA to "cancel [the] case." See May 2021 Exam Request. Further, he failed to respond to subsequent efforts to reschedule the examination, including multiple emails and telephone calls. Since that time, he has neither provided good cause for his failure to appear nor requested that new examinations be scheduled. Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b). As the Veteran lacked good cause for his failure to attend the scheduled VA examination, the Board will evaluate the evidence of record. While the Veteran may sincerely believe that his bladder disorder is secondary to or aggravated by his service-connected disabilities, his testimony as to the etiology of the disorder is not competent evidence in light of his lack of medical training in the fields of neurology or urology. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; however, the diagnosis of bladder disorder and its etiology involve complex medical questions which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be within the competence of lay witnesses. While the Board notes that there is no medical opinion of record which speaks to the theory of aggravation by a service-connected disability, this is a result of the Veteran's failure to attend a scheduled VA examination without good cause. Again, while the Veteran may believe his service-connected disabilities have aggravated his bladder disorder, he is not competent to make such a connection, and there is similarly no competent evidence in the record to establish such, as no examiner or other medical professional has opined on the matter. The Veteran's service treatment records do not show complaints or treatment of a bladder disorder. The Veteran does not assert, and the evidence of record does not suggest, that he had continuous bladder symptoms since his separation from service. In any event, continuity of symptoms is only for consideration in regard to disorders recognized as "chronic" under 38 C.F.R. § 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A bladder disorder is not a chronic disorder in 38 C.F.R. § 3.309 (a), so considerations of chronicity do not apply. The Board has reviewed all of the evidence of record, and finds that the most competent and probative evidence preponderates against finding that the Veteran's bladder disorder was incurred in or related to service. The evidence therefore preponderates against entitlement to service connection for a bladder disorder, to include secondary to lumbar degenerative disc disease, spondylosis or bilateral lower extremity radiculopathy. As the preponderance of the probative and competent evidence weighs against the claim, the claim must be denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 C.F.R. § 3.102. 2. Entitlement to an increased rating for lumbar degenerative disc disease and spondylosis, currently rated as 20 percent disabling is denied. VA regulations provide that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of 38 C.F.R. § 3.655 as appropriate. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Here, the Veteran submitted his claim for an increased rating in August 2008. To assess the more current severity of his disabilities, new examinations were ordered in November 2008, August 2010, and July 2015, which he attended. In its November 2016 decision, the Board denied the Veteran's claim for an increased disability rating for his lumbar spine disability. However, the Court vacated that decision in a February 2018, finding that the July 2015 VA examination was inadequate for rating purposes and that the Board should obtain a medical opinion as to the where the Veteran's pain begins and ends on range of motion and whether his pain limited his functional ability. In the August 2018 decision, the Board remanded the matter in order to afford him a new VA examination in accordance with the February 2018 JMR. Records show that VA attempted to obtain outstanding treatment records, and that the Veteran was scheduled for a VA lumbar spine examination. See August 2019 Subsequent Development Letter; December 2019 Subsequent Development Letter; see also April 2021 Subsequent Development Letter. However, he failed to attend the examination despite proper notification. Indeed, according to VA records, the Veteran canceled the scheduled examination, indicating that he was living overseas and advised VA to "cancel [the] case." See May 2021 Exam Request. Further, he failed to respond to subsequent efforts to reschedule the examination, including multiple emails and telephone calls. Since that time, he has neither provided good cause for his failure to appear nor requested that new examinations be scheduled. The requested examination was necessary to determine the claims for an increased rating. Although the Veteran previously underwent VA examinations listed above, they were deemed inadequate for rating purposes in the February 2018 JMR and do not contain the measurements necessary for rating purposes. Such information is similarly absent from available treatment records. As such, the Board is precluded from evaluating the current severity of the Veteran's disability without the requested examination. Thus, as the Veteran failed to appear for VA examination scheduled in response to his claims for increased rating, and has not offered good cause for his absence, the lumbar spine appeal is denied. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.