Citation Nr: 21021697 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-57 917 DATE: April 13, 2021 ORDER Entitlement to service connection for a urinary disability is denied. FINDINGS OF FACT The preponderance of evidence shows that the Veteran’s current urinary disability was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a urinary disability have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1951 to February 1952. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board remanded the issue on appeal for additional development in October 2020 and again in February 2021. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). As part of his substantive appeal the Veteran requested a hearing before a Veterans Law Judge. In May 2018, July 2018, and March 2019 correspondence the Veteran was properly notified of the date, time and location of the scheduled hearings, but failed to report for the hearings without any request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for a Urinary Disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran filed a claim for entitlement to service connection in December 2014, asserting that he was kneed in the groin during his basic training in 1951 by a platoon leader and after that experienced nighttime urinary incontinence, or enuresis. That incident, per the Veteran in a lay statement, was the cause of his current urinary problems under treatment by a private urologist. The Veteran’s service treatment records were silent at entry into service in November 1951 about any urinary-related problems. During active service in basic training, a service treatment note indicates “bedwetting and somatic symptoms,” with a recommendation that retention in the naval service was not warranted. The Veteran was transferred to a psychiatric unit, and that treatment note cited nervousness, somatic complaints, and enuresis. That note’s author also stated the Veteran had chronic attendance at sick bay with complaints of blackouts, fainting spells, and bedwetting. A “special enuretic regime” was instituted with moderate success, but the Veteran was discharged in February 1952. VA provided a VA examination for his claimed urinary condition in October 2015. The examiner diagnosed a voiding dysfunction that did cause urine leakage but did not require the wearing of absorbent material. Private medical records indicate the Veteran was being treated at a urology practice and has a suprapubic urinary catheter installed that is changed out every four weeks. Kidney stones or recurrent urinary infections were not noted. Those private medical records indicate a September 2009 diagnosis of elevated prostate specific antigen with benign prostate hyperplasia with lower urinary tract symptoms. Eventually a blockage developed in the Veteran’s urinary tract, and in May 2012 a catheter was inserted, requiring replacement every four weeks. This examiner provided a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s currently diagnosed urinary condition was related to his enuresis during active service. The examiner’s rationale included an inability to establish an etiology or nexus of the current condition first treated in September 2009 with a departure from active service 57 years previous in February 1952. The examiner also conjectured that the enuresis could have been a pre-existing condition without any medical evidence or statement from the Veteran, but even if so, the examiner stated that the Veteran’s current prostate and urinary tract conditions did not relate back to active service enuresis because there was no followup in the service treatment records or in any medical records in the claims file until September 2009. VA provided an addendum opinion in March 2021 to address the earlier examiner’s comments about a possible preexisting condition. This examiner considered the previous October 2015 examiner’s comment about a possible pre-existing condition but found there was none, in that the service treatment records were silent for any preexisting medical condition based on the November 1951 entrance examination, and that neither the Veteran nor any medical authority had ever claimed or deemed the existing of a preexisting urinary condition. This March 2021 examiner then continued, providing a negative opinion for direct service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s current claimed urinary condition was not incurred in or caused by the claimed inservice injury, event, or illness. This examiner’s rationale noted the Veteran’s enuresis in service was an acute but not chronic condition, given the statements of the medical treatment providers in 1952 regarding their opinion that the enuresis of the time was a reaction to the rigors of service and the other symptoms of the Veteran were considered somatic. The examiner noted the next instance of any urinary condition of the Veteran was the September 2009 treatment of the Veteran’s prostate issues, and the Veteran has not stated otherwise. That September 2009 and subsequent diagnosis and treatment of benign prostatic hyperplasia with obstruction had led to a complete obstruction, which required the insertion of a suprapubic catheter insertion, which the March 2021 examiner considered to be unrelated to the 1951-1952 service episode of enuresis of the Veteran during his basic training. The Board finds the October 2015 and March 2021 VA examinations and opinions to be of great probative value in their combination. The examiners went into detail with the Veteran’s medical and service history, conducted a thorough review of the claims file, and considered the Veteran’s contentions and clinical medical evidence before providing a negative opinion for direct service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The negative VA opinions considered all of the Veteran’s contentions as to his theories of service connection for his claimed urinary condition. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The VA examiners’ negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board acknowledges that the Veteran is competent to testify as to his belief that his urinary disability is related to service. In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of [his] personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to testify about his symptoms relating to his claimed urinary disability. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of a urinary or urologically-related condition. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. The Board also considered that the Veteran’s service records noted the enuresis condition leading to the Veteran’s subsequent discharge in February 1952 was followed by no complaints or records of any urological condition until 2009 at the earliest. The Board finds the 57-year gap in time between the end of active service in 1952 until the 2009 possible occurrence of symptoms of the claimed urinary condition to be probative of a lack of nexus between service and the current complaints. There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. Upon review of the record, the Board concludes that entitlement to service connection for a urinary disability is not warranted. The Board notes a current diagnosis of benign prostate hyperplasia with a urinary tract obstruction, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran’s contentions, and the Veteran’s post-service statements are noted. The Board notes the Veteran’s entrance examination is silent for any urological condition and as already discussed, that his service treatment records and subsequent discharge for his enuresis condition note an acute but temporary condition for which no further records exist until 2009. There is no competent evidence to tie the current assertions to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed urinary condition was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a urinary disability of any type on a direct basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.