Citation Nr: 21005896 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-11 047 DATE: February 2, 2021 ORDER Entitlement to service connection for a urinary incontinence disorder, to include as due to service-connected disability is denied. REMANDED Entitlement to service connection for a respiratory disorder, to include obstructive airway disease is remanded. FINDING OF FACT The Veteran’s urinary incontinence disorder is not related to service, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW Entitlement to service connection for urinary incontinence disorder, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C. §§ 1110, 1131 (2012)38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2006 to November 2006, and from April 2008 to November 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in November 2016. A transcript of the proceeding is associated with the claims file. The Board notes that although the Veteran requested a Travel Board hearing in her March 2013 VA Form 9, at her November 2016 hearing, the Veteran indicated that she was comfortable proceeding with the videoconference hearing. As such, the Board finds that no additional hearing is required. In September 2017 and April 2019, the Board remanded these issues for additional development. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran’s service treatment records reflect treatment for stress incontinence. Notably, an October 2006 service treatment record indicated that the Veteran had urinary incontinence for 2 months while a September 2008 treatment record reported that the Veteran had complaints of urinary loss of control. The Veteran underwent a June 2009 VA general examination. The examiner noted that there was no history of urinary incontinence, urinary urgency, urinary retention requiring catherization or urinary frequency. The Veteran underwent a VA examination in September 2010. The examiner noted that there was no history of urinary incontinence or urinary urgency. The diagnosis was a history of stress/urgency incontinence which was limited to times of basic training and deployment that was now resolved. VA treatment records dated after the September 2010 VA examination reflect treatment for urinary tract infections. Per the September 2017 Board remand instructions, the Veteran underwent a VA examination in November 2017. The examiner found that there was no evidence of a nephrologic or urologic disability. The examiner noted that the lab results showed microhematuria which was not a disability. The examiner reported that an opinion was not indicated as there was no evidence of urologic disease. However, the examiner did note that “any pathology found on diagnostic studies performed at this time, or in the future, would not be etiologically related to the Veteran’s military service. In its April 2019 remand, the Board noted that while the November 2017 VA examiner found that there was no evidence of urologic disease, subsequent VA treatment records potentially diagnosed the Veteran with a urologic disorder. Notably, a May 2018 VA treatment note listed functional urinary incontinence as an active problem. Per the April 2019 Board remand instructions, the Veteran underwent a VA examination in March 2020. The examiner determined that the Veteran had a diagnosis of functional urinary incontinence. The Veteran reported having urinary incontinence during her basic training as she had to drink lots of water during this time. She reported that she had a sensation to go urinate and that she drank lots of water and urinated every hour with large amounts of urine. She had voiding dysfunction which caused leakage and required absorbent materials which must be changed less than 2 times per day. Her voiding frequency caused increased urinary frequency as her daytime urinary interval was between 1 and 2 hours. The examiner opined that it was less likely than not that the Veteran’s functional urinary incontinence disability was caused or aggravated by a service-connected disability to include her service-connected acquired psychiatric disorder disability. The examiner noted that while individuals with psychiatric disorders may have function incontinence, it was less likely than not that the Veteran’s adjustment disorder or anxiety was causing aggravation to her urinary problem as water and dietary intake could be a contributing cause to the condition. The examiner also noted that the Veteran’s records show that she was a victim of child abuse and this could take an affect on emotional status and affect physically as well. The examiner also opined that it was less likely than not that the Veteran’s urinary incontinence disability was incurred in or caused by her claimed in-service injury, event or illness. The examiner noted that the Veteran reported that she currently drank significant amounts of water for health and weight loss and that increased water intake can increase urinary frequency. The examiner indicated that the Veteran was too young to have incontinence and that the causes of her functional incontinence could include environmental barriers to using the restroom, psychological issues, or cognitive and neurological or muscular limitations. Incontinence was typically seen in older adults and was more common in women especially women who have had children. Pelvic floor issues and cutting back on caffeine could improve the condition. The examiner also noted that dust or sand exposure would not have an impact on urinary issues. The examiner indicated that while the Veteran felt that her symptoms were related to conditions in boot camp, her post-void residual volume (PVR) in 2016 would have been abnormal if this were the case but the 2016 PVR was completely normal. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a urinary incontinence disorder to include as secondary to a service-connected disability is not warranted. As there is a current diagnosis of a urinary incontinence disorder, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between her military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Regarding service connection on a direct basis, the Board again notes that the Veteran’s service treatment records demonstrate that the Veteran was treated for urinary stress incontinence during service. However, despite these complaints, the service treatment records were negative for any or diagnoses of any chronic urinary incontinence disability and the record reflects that her urinary incontinence complaints were medically addressed in service. Furthermore, the only medical opinions addressing the etiology of the urinary incontinence disability weigh against the claim. As noted above, the March 2020 VA examiner indicated that it was less likely than not that the Veteran’s urinary incontinence disability was related to service. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a urinary incontinence disorder disability is not warranted on a direct basis. Regarding service connection on a secondary basis, the Board again notes that the Veteran asserts that her urinary incontinence disorder disability is due to her service-connected acquired psychiatric disorder disability. Notably, the Veteran is service-connected for adjustment disorder with anxiety that is associated with her service-connected lumbar spine disability. However, the Board finds that the weight of the evidence is against a finding that the Veteran’s current urinary incontinence disability is etiologically related to the Veteran’s adjustment disorder with anxiety disability. Notably, the only medical opinions addressing the etiology of the urinary incontinence disability on a secondary basis weigh against the claim. Specifically, the March 2020 VA examiner opined that it was less likely than not that the Veteran’s urinary incontinence disability was due to or aggravated by a service-connected disability as the examiner noted that while individuals with psychiatric disorders may have function incontinence, it was less likely than not that the Veteran’s adjustment disorder or anxiety was causing aggravation to her urinary problem as water and dietary intake could be a contributing cause to the condition. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a urinary incontinence disorder disability is not warranted on a direct or secondary basis. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a urinary incontinence disorder disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). The Board notes the Veteran’s contentions regarding the etiology of her claimed urinary incontinence disorder disability. To the extent that the Veteran herself contends that a medical relationship exists between her claimed urinary incontinence disorder disability and service, the Board acknowledges that the Veteran is competent to testify as to her observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a urinary incontinence disorder is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and her representative do not have the medical expertise to provide an opinion regarding the claimed urinary incontinence disorder disability, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiners provided detailed rationales in support of their opinions and cited to the relevant evidence. For this reason, the VA examiners’ opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for a urinary incontinence disorder disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. Regarding the Veteran’s claimed respiratory disability, as noted above, the Board remanded this matter in September 2017 and April 2019 for further development. In its September 2017 remand, the Board specifically noted that a September 2010 VA examiner gave a diagnosis of mild obstructive airway disease based on PFT testing but did not provide an etiological opinion. Additionally, an October 2010 Medical Evaluation Board Narrative Summary included a diagnosis of dyspnea, NOS, along with a notation that it existed prior to service and was aggravated by service. As a result, the Board remanded the issue of entitlement to service connection respiratory disability for a new VA examination. Per the September 2017 Board remand instructions, the Veteran underwent a VA examination in November 2017 where the examiner found that there was no evidence of respiratory/lung pathology, no respiratory disability and no functional impairment. In its April 2019 remand, the Board noted that while the November 2017 VA examiner found that there was no evidence of respiratory/lung disability, the examiner failed to reconcile such finding with the diagnosis of mild obstructive airway disease that is contained in the September 2010 VA examination report. As a result, the opinion did not comply with the September 2017 Board remand instructions and the April 2019 Board remand ordered a new VA opinion. Notably, the April 2019 Board remand also instructed the VA examiner to provide an opinion as to whether a respiratory disorder clearly and unmistakably existed prior to service, and if so, whether it clearly and unmistakably underwent no permanent increase in severity as a result of active service, to include as due to the Veteran’s deployment to Iraq, where she was reportedly exposed to dust, heat, and sand. In formulating this opinion, the examiner was to consider and address the October 2010 Medical Evaluation Board Narrative Summary which provided that dyspnea existed prior to service and was aggravated by service. Per the April 2019 Board remand instructions, the Veteran underwent a VA examination in March 2020. The VA examiner opined that she could not state that the Veteran’s respiratory disability was related to environmental exposures in Iraq as the Veteran was diagnosed with a possible vagal mediated condition which was a neurological condition “which environmental exposure would not affect one particular aspect but multiple.” The examiner also noted that the Veteran had symptoms of allergic rhinitis and possible reflux which had not been investigated or ruled out. Given that the Veteran had multiple issues that could be causing her symptoms, the examiner could not state that it was as likely as not that the Veteran’s respiratory disability was caused by the Veteran’s service. The VA examiner also noted that she “could not determine whether symptoms existed prior to service as the Veteran states that it started during service”. However, while the March 2020 VA examiner opined that it was less likely than not that the Veteran’s respiratory disability was related to service, the examiner failed to specifically address whether the Veteran’s respiratory disorder clearly and unmistakably existed prior to service, and if so, whether it clearly and unmistakably underwent no permanent increase in severity as a result of active service, to include as due to the Veteran’s deployment to Iraq. As noted above, the VA examiner indicated that she “could not determine whether symptoms existed prior to service as the Veteran states that it started during service”. However, as addressed in the April 2019 Board remand, in formulating her opinion, the examiner was to consider and address the October 2010 Medical Evaluation Board Narrative Summary which provided that dyspnea existed prior to service and was aggravated by service. As a result, the Board finds that the March 2020 opinion does not adequately address whether the Veteran had a respiratory that disorder clearly and unmistakably existed prior to service, and if so, whether it clearly and unmistakably underwent no permanent increase in severity as a result of active service as instructed by the April 2019 Board remand instructions. As a result, there has not been compliance with the Board’s April 2019 instructions. The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, this issue is once again being remanded to ensure compliance with the Board’s September 2017 and April 2019 remand directives in order to conduct a VA examination to determine whether the Veteran h.ad a respiratory that disorder clearly and unmistakably existed prior to service, and if so, whether it clearly and unmistakably underwent no permanent increase in severity as a result of active service. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Schedule the Veteran for a VA examination to determine the etiology of the claimed respiratory disability. The examiner(s) should identify, with specificity, all diagnoses pertinent to the Veteran’s respiratory disorder. If the examiner does not find any current diagnoses pertaining to the Veteran’s claimed respiratory disorder, the examiner should reconcile such finding with the diagnosis of mild obstructive airway disease that is contained in the September 2010 VA examination report. For each identified disorder, the examiner should opine as to whether the disorder clearly and unmistakably existed prior to service, and if so, whether it clearly and unmistakably underwent no permanent increase in severity as a result of active service, to include as due to the Veteran’s deployment to Iraq, where she was reportedly exposed to dust, heat, and sand. In rendering such opinions, the examiner should consider and address the October 2010 Medical Evaluation Board Narrative Summary, noted above, which provides that dyspnea existed prior to service and was aggravated by service. For each identified disorder that did not pre-exist service, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the condition was caused by, or is otherwise etiologically related to, the Veteran’s active military service, to include the Veteran’s deployment to Iraq, where she was reportedly exposed to dust, heat, and sand. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. Ensure that the examination report complies with this remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.