Citation Nr: 21024386 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-14 281 DATE: April 22, 2021 ORDER Entitlement to service connection for urinary retention, to include as due to exposure to contaminated water at Camp Lejeune, is denied. FINDING OF FACT Urinary retention is not shown to be causally related to an in-service injury or disease, to include exposure to contaminants in the water at Camp Lejeune, or to have been caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for urinary retention, to include as due to exposure to contaminated water at Camp Lejeune, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1961 to April 1964. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in April 2013 the RO denied entitlement to service connection for urinary retention, prostate cancer and Barrett’s esophagus, and the Veteran perfected an appeal to the Board. In February 2019, the Board remanded the claims of service connection for urinary retention and Barrett’s esophagus for further development. The Board then denied entitlement to service connection for prostate cancer, and the Veteran did not appeal. 38 U.S.C. § 7266. As such, that issue is no longer on appeal. The appeal was returned to the Board and in June 2020 the Board again remanded the claim for service connection for urinary retention for further development. The requested opinions were obtained in January 2021. As such, the directives have been substantially complied with and the appeal is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2020 the Board further denied service connection for Barrett’s esophagus, which the Veteran did not appeal. 38 U.S.C. § 7266. As such, that issue is no longer on appeal before the Board. The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2018. A transcript of the hearing is of record. 1. Entitlement to service connection for urinary retention. Generally, to establish service connection 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be established based on exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309(f). A veteran who had no less than 30 days, consecutive or nonconsecutive, of service at Camp Lejeune during the period from August 1, 1952 to December 31, 1987 will be presumed to have been exposed to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.307(a)(7)(iii). If exposure is presumed or established on a facts-found basis, certain disabilities will be presumed to be causally related to such exposure. 38 C.F.R. § 3.309(f). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened) by a service-connected disability. 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). The Veteran was diagnosed with urinary retention during a January 2021 VA examination. As to an in-service injury or disease, the Board notes that the Veteran was not treated for urinary symptoms at any point during service, nor was he diagnosed with a urinary disability of any kind. The Veteran’s March 1964 separation examination was normal, and the Veteran denied any urinary symptoms on an annual certificate of physical condition date stamped December 1964. Instead, the Veteran has asserted that his disability is due to his exposure to contaminants in the water supply at Camp Lejeune. The Veteran’s personnel records reflect that he was stationed at Camp Lejeune between August 1, 1953 and December 31, 1987 for at least 30 days. 38 C.F.R. § 3.307(a)(7)(iii). As such, the Veteran is presumed to have been exposed to contaminants in the water supply at Camp Lejeune. Id. As a current disability and an in-service injury have been shown, the remaining question is whether the kidney disease is causally related to contaminant exposure in service. The Veteran has asserted that his urinary retention is causally related to his period of service, specifically his exposure to contaminants. While competent to report the onset or persistence of lay-observable symptoms such as urinary difficulties, the Veteran is not competent to opine as to the etiology of the disability as to do so requires medical knowledge and training beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, these assertions are entitled to no probative weight. The Board notes that during the November 2018 hearing the Veteran stated that he experienced symptoms of urinary retention in service that have persisted since. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In this case, in March 1964 the Veteran signed his separation examination which noted that his genitourinary system was normal. Further in an annual certificate of physical condition date stamped December 1964, the Veteran specifically denied any issues with urinary or genitourinary symptoms of any kind, despite endorsing several other symptoms. In light of the inconsistent nature of the Veteran’s statements concerning the onset and persistence of his urinary retention, the Board finds the statements not credible and entitled to no probative weight. Id. VA obtained an opinion concerning direct service connection in January 2021. The examiner stated that it was less likely than not that the urinary retention was causally related to the Veteran’s service, including contaminant exposure. The examiner noted that there was no evidence of any bladder or urinary issues in service. The examiner further noted that it was the Veteran’s prostatic hypertrophy that resulted in his urinary symptoms and the chronic bladder overdistention that led to the urinary retention. The examiner then explained that the Veteran’s normal separation examination ruled out the presence of prostatic hypertrophy in service, and further that prostatic hypertrophy is instead a condition of the aging process. There is no evidence that the above examiner was either not competent or credible. Further, the examiner provided a clear conclusion supported by a well-reasoned rationale that cited to the medical evidence of record and discussed the nature and progression of the Veteran’s disability and identified other more likely causes of the disability. As such, the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records reflect that the Veteran was first treated for voiding dysfunction in April 1990, with continued reports of urinary retention and nocturia thereafter. Treatment records from April 2011 and July 2011 note urinary retention related to the Veteran’s prostatic hypertrophy or prostatic scarring. None of the records contain any opinions linking the urinary retention to the Veteran’s period of service. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s urinary retention is casually related to his period of service. The Veteran’s contentions to that end are not competent, and therefore entitled to no probative weight. Conversely, the VA opinion of record clearly stated that the retention was not due to the Veteran’s contaminant exposure, and instead was causally related to the Veteran’s nonservice-connected prostate cancer. As the preponderance of the evidence is against a nexus, service connection for urinary retention on a direct basis is not warranted. 38 C.F.R. §§ 3.102, 3.303. Turning to secondary service connection, the Veteran is diagnosed with urinary retention and is service connected for kidney cancer. As such, the dispositive issue is whether the urinary retention is caused or aggravated by the kidney cancer. 38 C.F.R. § 3.310. To the extent the Veteran and his representative have argued that his urinary retention is causally related to his service, these statements are not competent as neither have the medical knowledge or training necessary to provide such and opinion. Jandreau, 492 F.3d 1372. As such, these assertions are entitled to no probative weight. VA obtained an opinion concerning secondary service connection in January 2021. The examiner stated that it was less likely than not that the urinary retention was caused or aggravated by the Veteran’s kidney cancer. The examiner stated instead the urinary retention is the result of detrusor muscle hypocontractility caused by chronic bladder overdistention, which in turn is due to prostatic hypertrophy. The examiner further state that kidney cancer does not cause bladder outlet or urethral obstruction, noting that the kidney is located above the bladder and does not influence its emptying. The examiner then noted that as the evidence clearly showed that the urinary retention pre-dated the kidney cancer it could not have been caused by the cancer. Finally, concerning aggravation the examiner notes that the Veteran continues to require intermittent self-catheterizations, as he did prior to the kidney cancer and resulting surgery, and that as the kidney cancer surgery did not involve manipulation of the bladder in any way the surgery could not have worsened the urinary retention. There is no evidence that the examiner was not competent or credible, and further the examiner supporting the opinion with a well-reasoned rationale that cited to the medical evidence of record and identified a separate, more likely cause. As such, the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez, 22 Vet. App. 295. None of the Veteran’s treatment records contain any opinions indicating that his urinary retention was caused or aggravated by his kidney cancer. Instead, as noted previously the records generally indicate that the urinary retention is causally related to the Veteran’s prostate cancer. Based on the foregoing, the preponderance of the evidence is against a finding that the urinary retention was caused or aggravated by the service-connected kidney cancer. The only competent and credible evidence of record is the January 2021 VA opinion and the Veteran’s treatment records, all of which indicate that the urinary retention is causally related to the nonservice-connected prostate cancer. While the Veteran has asserted that there may be a causal connection between his kidney cancer and his urinary retention, such states are not competent and therefore are entitled to no probative weight. As such, service connection for urinary retention as secondary to kidney cancer is not warranted in this case. 38 C.F.R. § 3.310. Further, as noted service connection for prostate cancer was denied in a February 2019 Board decision, and therefore service connection cannot be granted for urinary retention as secondary to prostate cancer. 38 C.F.R. §§ 3.310, 20.1303. Finally, certain diseases may be presumed to be casually related to exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309(f). However, urinary retention is not a listed condition. Id. While bladder cancer is presumed to be causally related to contaminant exposure, there is no evidence indicating that the Veteran has ever been diagnosed with bladder cancer. The Board notes that the Veteran’s representative argued in their April 2021 appellate brief that the Veteran’s urinary retention was associated with his prostate cancer, which in turn could be causally related to bladder cancer. However, as noted there is no evidence the Veteran has at any point been diagnosed with bladder cancer. Further, as noted earlier service connection for prostate cancer has already been denied in a February 2019 Board decision which was unappealed. 38 C.F.R. § 20.1303. As such, entitlement to service connection on a presumptive basis is not warranted. The preponderance of the evidence weighs against a finding that the Veteran’s urinary retention is causally related to his service or was caused or aggravated by another service-connected disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.