Citation Nr: 21023932 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-09 176 DATE: April 21, 2021 ORDER Entitlement to service connection for frequent urination, to include as a result of herbicide exposure, is denied. FINDING OF FACT A disability manifested by frequent urination was not incurred in service, was not otherwise caused by service (including as the result of herbicide exposure), and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for frequent urination have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1971 including service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was previously before the board in March 2015, June 2018, and June 2019 when it was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Entitlement to service connection for frequent urination Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. In addition, a “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Urinary frequency or any related disability is not listed under section 3.309(e). As such, the presumptive provisions discussed above are not for application in this case. The Board notes, that the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease contended to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). 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). 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability, comparing it to the current level of disability, and showing that the secondary condition was not due to the natural progression of a disease. 38 C.F.R. § 3.310(b). The Veteran’s service treatment records include no complaints, treatment, or diagnosis of urinary frequency or nocturia. The June 1971 Report of Medical Examination prior to separation included a normal genitourinary system and at that time the Veteran reported that he was in good health. In January 2011, the Veteran reported that he was urinating 3 to 4 times at night with incomplete voiding and decreased urinary stream. The examiner diagnosed benign prostatic hypertrophy (BPH). In his March 2013, the Veteran indicated that his claim for urinary frequency was based on in-service herbicide exposure. The Veteran was afforded a VA examination in November 2015. The examiner diagnosed nocturia following radiation and chemotherapy from 2010. The Veteran reported that he began to develop increased frequency of urination at night time only (nocturia) in 2010 after he started radiation and chemotherapy in 2010, which continued urinary frequency at night (3 times per night). The Veteran also reported that he was diagnosed with BPH and took terazosin for the condition. The Veteran also reported that he was diagnosed with gonorrhea several times during service and was seen by medical personnel. The main related symptom was “small drainage” from the penis. Following examination, the examiner concluded that it was less likely than not that the Veteran’s BPH was incurred in or caused by service. The rationale noted that the Veteran’s separation examination was normal and there was no diagnosis of a genitourinary condition, including BPH. The examiner discussed how BPH was the most common prostate problem for men older than age 50. Similarly, it was less likely than not that the Veteran’s urinary frequency was incurred in or caused by service. The rationale noted that the Veteran’s reported urinary frequency symptoms began years after service. In May 2016, the Veteran had noted BPH without urinary obstruction. In May 2017, during treatment for cellulitis the Veteran indicated that it varied how often he urinated during the night. The Veteran was afforded a VA contract examination in March 2019. The examiner diagnosed nocturia from 2010 and benign prostate cancer from 2011. The examiner used the ICD code N40 which represents benign prostatic hyperplasia (BPH) and not cancer, and the term benign also indicates non-cancerous. The Veteran reported that after receiving radiation and chemotherapy for laryngeal cancer that he noticed greater urinary frequency. Symptoms had worsened since that time. On average he would urinate 3 to 4 times nightly. Following examination, the examiner concluded that it was less likely than not that the Veteran’s urinary frequency was incurred in or caused by service. The rationale noted that the Veteran was initially diagnosed with nocturia in October 2010 with complaints of urinating 1 to 2 times nightly. That complaint was prior to the initiation of chemotherapy that started in January 2011. There was no documentation of genitourinary problems during evaluation in November 2010. An additional note in January 2011 documented an enlarged prostate with medication management. The examiner noted that according to the Mayo Clinic BPH was a common condition that occurred in men 50 years and older. BPH could cause urinary frequency, a weakened urinary flow, and a sensation of incomplete emptying of the bladder. The Veteran’s prescribed medication was used to relax the blood vessels to improve urinary flow from the bladder or improve symptoms associated with BPH. The examiner also concluded that the urinary frequency was less likely than not due to or the result of a service-connected disability. The rationale cited the above evidence and concluded that the nocturia was less likely than not caused or aggravated beyond its natural progression due to the result of the service-connected carcinoma of the right hypopharynx and piriform sinus. Subsequent VA treatment visits included multiple denials by the Veteran of any urinary problems. A July 2019 addendum opinion concluded that it was less likely than not that the Veteran’s urinary frequency was incurred in or caused by service, to include herbicide exposure. The rationale stated, “There is no known relationship between herbicide exposure and the development of urinary frequency. Review of medical literature does not support this relationship. Veteran’s likely cause of urinary frequency is his BPH, which is known to cause urinary symptoms such as frequency.” As to whether the urinary frequency is directly related to service, there is no lay or medical evidence suggesting in-service onset of the urinary frequency. The Veteran contends that the urinary frequency is due to in-service herbicide exposure. The Veteran does have recognized herbicide exposure during his service in Vietnam. The only medical evidence regarding whether the herbicide exposure was the cause of his urinary frequency is the July 2019 medical opinion that concluded it was less likely than not that the urinary frequency was incurred in service or is otherwise caused by service, including herbicide exposure. The rationale discussed how there was no known relationship between herbicide exposure and urinary frequency. The Board finds this the most probative evidence of record, as the opinion was based on review of the evidence of record and provided a complete rationale for the opinion provided. The Board finds that the mention of benign prostate cancer in the March 2019 examination report does not indicate that the Veteran had or now has prostate cancer. Rather, it is clear that the examiner is citing a diagnosis of BPH. This is consistent with all VA outpatient treatment records. The Board has considered the Veteran’s contentions that the urinary frequency was the result of in-service herbicide exposure. The Veteran is competent to report physically observable symptoms (such as urinary frequency), but given the absence of a continuity of symptoms from service and the medical complexity of relating the urinary frequency to the Veteran’s herbicide exposure the Board affords the opinions of the medical professional considerably greater probative weight. Cf. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As to whether the urinary frequency was caused or aggravated by the Veteran’s service-connected squamous cell carcinoma of the larynx and related residuals, including a partial laryngectomy, the medical evidence of record is against such an association. The medical professionals considering the Veteran’s claim have universally concluded that his diagnosed BPH is the cause of the urinary frequency, as it is a known complication of BPH, and very common in men of the Veteran’s age with BPH. As to aggravation of the urinary frequency due to the cancer, the March 2019 examiner discussed how the Veteran’s urinary frequency at night began prior to his laryngeal cancer treatment and that there was no other evidence to suggest that there was aggravation beyond the natural progression of the disease due to the cancer. The Board finds this conclusion the most probative evidence of record, as the examiner’s opinion was based on review of the claims file, examination of the Veteran, and medical literature. The report also included a complete rationale for the opinion provided. The Board has considered the Veteran’s assertions that his urinary frequency was caused or aggravated by his laryngeal cancer and residuals related thereto. As discussed above, however, while the Veteran is competent to report physically observable symptoms the medical complexity of linking urinary frequency or other genitourinary symptoms with his service-connected cancer and its residuals is beyond the competency of a layperson such as the Veteran. As such, the Board affords far greater probative weight to the medical opinions of record. In summary, the most probative evidence of record is against finding that the Veteran’s urinary frequency or other genitourinary disabilities had their onset in service, are otherwise related to service (including as due to herbicide exposure), or were caused or aggravated by a service-connected disability. (continued next page) In light of the evidence, the Board concludes that the weight of the competent and credible evidence is against the claim, and that service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.