Citation Nr: 21009555 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 03-16 504 DATE: February 22, 2021 ORDER Service connection for cystitis is denied. An effective date prior to May 28, 2013, for the award of service connection for a psychiatric disorder, to include insomnia and depression, is dismissed. REMANDED A rating in excess of 50 percent for a psychiatric disorder, to include insomnia and depression. A total disability rating based on individual unemployability (TDIU).   FINDINGS OF FACT 1. The Veteran’s interstitial cystitis did not have its onset during service and is not otherwise related; her disorder was not caused or aggravated by her service-connected disabilities, to include her irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD). 2. Service connection for a psychiatric disorder was granted in the August 2014 rating decision, effective the date of the claim, May 28, 2013. 3. The July 2017 claim for an earlier effective date for the award of service connection for the psychiatric disorder, prior to May 28, 2013, is a freestanding claim. CONCLUSIONS OF LAW 1. The criteria for service connection for interstitial cystitis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The Board does not have jurisdiction over the freestanding claim for an effective date prior to May 28, 2013, for the award of service connection for a psychiatric disorder, to include insomnia and depression. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to November 1988. The case is on appeal from August 1999 and October 2017 rating decisions. In July 2015 and December 2020, the Veteran testified at a Board hearing. The claim of service connection for cystitis has a long procedural history which is addressed below. Most recently, the claim came before the Board in February 2017 and was remanded for further development. Subsequently, an expert medical opinion was obtained from the Veterans Health Administration (VHA). The Board notes with regard to the cystitis claim, additional evidence was submitted after the most recent July 2017 supplemental statement of the case (SSOC), including VA treatment records, VA and private medical records, as well as an appellate brief. The Board finds the additional evidence is duplicative to that already of record or not relevant to the claim for service connection for cystitis. 38 C.F.R. § 19.37(a). Thus, the Board may proceed with adjudication of the issue. In the December 2020 appellate brief and during the December 2020 Board hearing, the Veteran’s representative raised the issues of service connection for right and left ankle disorders. The Board finds that the issue of service connection for a bilateral ankle disorder was denied previously in a January 2013 Board decision. The January 2013 Board decision became final when issued. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100(a). There was also no indication that the Veteran or her representative appealed the decision to the United States Court of Appeals for Veterans Claims (Court) or filed a motion for reconsideration. Thus, if the Veteran seeks to reopen the claims of service connection for right and left ankle disorders, she must submit a new claim form, along with new and material evidence. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, her representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 1. Service connection for cystitis Facts The Veteran seeks service connection for cystitis. She contends her cystitis had its onset during service, including her in-service treatment, or is otherwise causally related to service. Alternatively, she asserts the disorder is related to her service-connected disabilities, to include her IBS. As noted above, the claim has a long procedural history back to the original August 1999 rating decision and has been before the Board several times. The Veteran’s service treatment records (STRs) show that she received treatment for cystitis during service and was diagnosed with such in June 1982. Additionally, she received treatment for cystitis in June 1981 and January 1983, and a February 1983 record indicated a urinary tract infection. At the Veteran’s October 1988 separation examination, cystitis was not indicated; however, hematuria was noted. Following service and throughout the Veteran’s lengthy appeal period, she has received treatment for her interstitial cystitis. An April 1995 private treatment record indicated that her symptoms may have been related to chronic persistent interstitial cystitis, including symptoms of urgency and bladder pain. A July 1995 record indicated the Veteran had interstitial cystitis which was “doing well.” A February 1996 private record from Dr. J.N. reported a clinical diagnosis of interstitial cystitis which had responded well to conservative treatment. She was prescribed Elmiron for the condition by her treating physician. The Veteran was afforded a January 2003 VA examination in which the examiner indicated there is no known cause of interstitial cystitis and no reason to suspect that the Veteran’s endometriosis or her hysterectomy are directly related to the disorder. The examiner inaccurately stated there is no identifiable evidence of a diagnosis of chronic cystitis during her service. The claim was denied by the Board in June 2007. The Veteran appealed the decision to the Court and pursuant to a December 2009 Memorandum Decision, the Court vacated the Board’s decision and remanded the claim to the Board for further development. The claim was then remanded by the Board in December 2010. The Veteran was afforded a December 2011 VA examination in which the examiner opined the Veteran’s cystitis was not related to service. He indicated that the Veteran was seen only once during service for a urinary tract infection and that he could not locate the referenced entry in June 1982 for cystitis. However, he stated the STRs reflect a cystitis diagnosis but there is no evidence of chronicity or continuity of care, and the Veteran’s cystitis is not associated with service. The Veteran was afforded a May 2012 Board hearing in which she indicated her cystitis had its onset during service. The claim came before the Board in January 2013 and was remanded for further development, including a VA examination. The Veteran was afforded an October 2013 VA examination in which the examiner opined the Veteran’s cystitis is not related to service. As with the prior VA examiner, the October 2013 VA examiner did not locate the STR from June 1982 for cystitis. The examiner assumed as true that the Veteran had such treatment in June 1982 for cystitis and gave an opinion on this basis. She stated there is no evidence in the record of frequent and recurrent evaluation and treatment for urinary tract infections or cystitis in service. The claim came before the Board in February 2017 and was remanded for further development, including another VA examination. The Board found the prior VA examinations in adequate. The Board also noted that the Veteran’s representative indicated in a September 2016 brief that her cystitis may be secondary to her service-connected IBS with GERD. The Board determined an additional VA examination was needed to address the direct service connection, as well as secondary service connection, theories of entitlement. The Veteran was afforded a July 2017 VA examination in which the examiner indicated the Veteran’s cystitis was less likely than not incurred in or caused by service. She stated after a complete review of the record, there is insufficient medical evidence to substantiate the Veteran’s claim. The examiner indicated the Veteran received treatment episodically for urinary tract infections while in service, including in January 1983. She stated the medical evidence supports the Veteran also received treatment initially after service in 2005, 22 years following the in-service treatment. The examiner noted the Veteran was diagnosed with a urinary tract infection in August 1999 and reported urinary tract infection symptoms in September 1999; however, urine cultures were negative for any bacterial growth. She concluded the Veteran received in-service treatment for cystitis in 1983, urological treatment in 1999 and then was diagnosed in 2005 with interstitial cystitis. She opined, therefore, “there is no chronicity to establish a nexium [sic] during military service with continuation post military discharge for cystitis until 2005.” With regard to secondary service connection, the July 2017 examiner indicated the Veteran’s interstitial cystitis is not related to her IBS or GERD. She stated IBS is a dysfunction of the gastrointestinal system while interstitial cystitis is a dysfunction of the urological system. She noted they are separate and distinct entities and the pathophysiology and etiologies do not correlate. She indicated individuals who suffer from interstitial cystitis are more likely to suffer from other chronic disorders, including IBS. She noted the reason for the overlap is unknown but does suggest a more system-wide dysfunction. Similarly, the examiner indicated GERD is a digestive disorder that affects the lower esophageal sphincter, the ring of muscle between the esophagus and stomach. She stated GERD and interstitial cystitis are separate and distinct and do not correlate. Thus, she concluded there is no correlation between the Veteran’s interstitial cystitis and her service-connected disabilities, including IBS and GERD. The claim for cystitis came before the Board in April 2018 and it determined an expert medical opinion from a urologist was warranted from VHA. The Board noted the Veteran’s active service ended in November 1988 and she began receiving treatment for interstitial cystitis in 1995. A clinical diagnosis of interstitial cystitis was provided by the Veteran’s family physician, Dr. J.N., in February 1996. The Veteran also reported, including in the May 2012 hearing, that her cystitis began in approximately early 1994, after her hysterectomy procedure which took place in December 1993. Thus, although the July 2017 VA opinion was highly adequate with regard to the secondary service connection theory of entitlement, it misstated the medical evidence of record with regard to direct service connection. Moreover, the examiner indicated the Veteran’s initial post-service treatment for interstitial cystitis was in 2005, 22 years following the 1983 treatment. In contrast to this statement, as noted, the Veteran’s treatment began in 1995. Thereafter, a medical opinion was provided from a VHA physician, Dr. Shalhoub who is a urologist. The Board notes the opinion is undated, however, it was issued to the Veteran and her representative in January 2019, along with the 60 day letter for a response. The physician determined the Veteran’s interstitial cystitis is not causally related to her service or her service-connected disabilities. The examiner took note of the Veteran’s in-service treatment for cystitis, as well as a February 1983 record which indicated a urinary tract infection. He further indicated at the Veteran’s October 1988 separation examination, cystitis was not found; however, hematuria was indicated. He accurately stated symptoms related to the Veteran’s urinary bladder were not indicated following service until April 1995, when the record shows she experienced interstitial cystitis with symptoms including urgency and bladder pain. The examiner noted the Veteran was treated with Elmiron alone for her symptoms and was doing well in February 1996. The VHA physician stated the Veteran had isolated urinary tract infections during service in 1981, 1982 and 1983. As such, he opined these infections are not causally related to the Veteran developing interstitial cystitis following service in 1995. With regard to secondary service connection, the physician indicated the urological disorder of interstitial cystitis was not caused or aggravated by her other service-connected disabilities, such as IBS. He opined IBS is a gastroenterological disease while interstitial cystitis is a disease of the urinary bladder and there is no direct connection between the two disabilities. Thereafter, the Veteran’s representative submitted a March 2019 statement which challenged the VHA opinion. He stated the opinion failed to address the issue and the examiner did not specifically state “at least as likely as not” in his conclusions. The representative indicated the examiner did not review the record, relied on “no direct connection” for the portion related to secondary service connection and that the opinion is insufficient for VA to make a decision. The representative further stated most medical treatises show a nexus between urinary tract infections and cystitis. The Veteran was afforded another December 2020 Board hearing which included a brief in support submitted by her attorney. The testimony provided, along with the representative’s December 2020 brief, essentially restated the Veteran’s documented contentions related to her cystitis. The brief supports service connection for cystitis and took note of the Court’s December 2009 Memorandum Decision which vacated the Board’s prior June 2007 denial. It noted the October 2013 VA examination, which the Board previously determined was inadequate to adjudicate the claim. It further noted that the cystitis had its onset during service, including with the June 1982 diagnosis. Similarly, during the December 2020 Board hearing, the Veteran indicated her cystitis is related to service. She noted she has the same problems now related to her cystitis, along with urinary problems, that she was having in 1981, 1982 and 1983. She further reported she had symptoms of cystitis while she was still working up until September 2016, including frequently using the restroom and increased urgency. Analysis After a careful review of the evidence throughout the entire appeal period, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for cystitis. The most persuasive evidence of record is the VHA medical opinion from a urologist which determined the Veteran’s cystitis is not causally related to service or a service-connected disability, to include IBS. The Board notes there are no medical opinions of record which support that the Veteran’s cystitis is related to service or a service-connected disability. The Board accords great probative weight to the VHA physician’s opinion sent to the Veteran and her representative in January 2019. With regard to the question of etiology, the physician provided a thorough rationale in determining that the Veteran’s cystitis is not related to service, to include her in-service treatment, and is also not etiologically related to her service-connected disabilities, including IBS with GERD. It is apparent the entire record was reviewed, as the examiner specifically referenced the service treatment records which indicated treatment for cystitis, as well as a urinary tract infection. He also addressed the Veteran’s post-service treatment for cystitis which began in 1995. The physician’s opinion is based on an accurate medical history and contains well-reasoned explanations in support of his conclusions. As such, the opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Significantly, as noted above, there are no medical opinions of record linking the Veteran’s cystitis with service or her service-connected disabilities, including throughout the appeal period of over twenty years. The Board acknowledges the Veteran’s and her representative’s statements in support of her claim, as well as her in-service and post-service cystitis treatment. The Board also acknowledges the severity of the Veteran’s symptoms, including increased urgency and constantly using the bathroom. While the Veteran and her attorney have offered assertions which are consistent, as lay persons they have not been shown to have specialized training sufficient to render an opinion as to the etiology of cystitis, as such is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board accords greater probative weight to the physician’s VHA opinion than to the lay statements in support. In sum, the Board determines the VHA medical opinion sent to the Veteran and her attorney in January 2019 is the most probative evidence of record and weighs against her claim, including the theories of direct and secondary service connection. Thus, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for cystitis is not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). Effective Date Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2)(i). In Rudd v. Nicholson, the Court held that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed RO decision. See Rudd, 20 Vet. App. at 299-300. The Court reasoned that allowing such claims would vitiate the rule of finality. Id. at 300; see also DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (“Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.”); Sutton v. Nicholson, 20 Vet. App. 419, 424-25 (2006) (holding that, where the appellant receives notice of a decision and a fair opportunity to appeal it, there is no basis to abate the finality of the decision). 2. An effective date prior to May 28, 2013, for the award of service connection for a psychiatric disorder. The Veteran contends that an effective date prior to May 28, 2013 is appropriate for service connection for a psychiatric disorder. She asserts the effective date for her psychiatric disorder should be as early as 2004 due to psychiatric treatment at that time. In an August 2014 rating decision, service connection for a psychiatric disorder, including insomnia and depression, was granted and a 50 percent rating was assigned from May 28, 2013, the date of the claim. The Veteran was notified of the decision by letter dated September 2014, which was mailed to the then current mailing address of record. The Veteran submitted a November 2014 notice of disagreement (NOD). In October 2016, the RO issued an SOC, which was also mailed to the then current mailing address of record as well as to the attorney representative. The Veteran did not file a timely substantive appeal. Other correspondence was received within 60 days of the SOC but not any that can be construed as a substantive appeal for this issue. Additionally, there was no new and material evidence received. The Board notes that the Veteran’s representative submitted an April 2017 substantive appeal; however, the appeal was not perfected by a substantive appeal within sixty days from the October 2016 SOC. Thus, the September 2014 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Thereafter, the Veteran submitted a July 2017 claim for an increased psychiatric rating, as well as an earlier effective date for service connection, prior to May 28, 2013. The Veteran testified in the December 2020 Board hearing that there are VA treatment records as early as 2004 which show treatment for depression. She indicated that she received psychiatric treatment in 2004 from the VA Medical Center and was prescribed Zoloft. The Board finds the July 2017 claim for an earlier effective date for service connection for the psychiatric disorder must be dismissed as it is a freestanding claim. The September 2014 rating decision which granted service connection and assigned an effective date of May 28, 2013, did not have an appeal perfected. Therefore, as noted, the decision became final. As such, the July 2017 claim for an earlier effective date is an impermissible freestanding claim. See Rudd, 20 Vet. App. at 299-300. The only other avenue for an earlier effective date is to request revision of the September 2014 rating decision based on clear and unmistakable error (CUE), which has not presently been raised as an issue. In sum, there is no basis upon which an earlier effective date can be awarded based on the instant claim, and the appeal must be dismissed. 38 U.S.C. § 7105; Rudd, 20 Vet. App. at 299-300. REASONS FOR REMAND 1. A rating in excess of 50 percent for a psychiatric disorder, to include insomnia and depression. As addressed above, the September 2014 rating decision which granted service connection for a psychiatric disorder was not appealed and thus, is final. Thereafter, the Veteran submitted a July 2017 claim for an increased rating. The Veteran was afforded a September 2017 VA examination in which the examiner indicated her psychiatric disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner stated the Veteran has symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment and disturbances of motivation and mood. She noted the Veteran has no serious mental status abnormalities, demonstrated full range of affect, suicidal and homicidal ideation was denied, she has no hallucinations and delusions, and her behavior is generally appropriate. The examiner further indicated her thinking and thought content are appropriate, there are no signs of cognitive difficulty, her memory is intact, and her judgment and insight are normal. During the December 2020 Board hearing, the Veteran testified that her psychiatric disorder has worsened, including her sleep trouble, anxiety, depression and fatigue. Based on this testimony, the Board finds the Veteran should be afforded a new VA psychiatric examination to assess the current extent and severity of her psychiatric disorder. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. A TDIU. The issue of a TDIU was expressly raised and is a component of the claim for an increased psychiatric rating on appeal. Thus, it is presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Additionally, as the issue of a TDIU is intertwined with the pending increased rating claim, it is also remanded. The matters are REMANDED for the following action: Schedule the Veteran for a VA psychiatric examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate medical professional to determine the severity of her psychiatric disorder, to include insomnia and depression. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.