Citation Nr: 21029949 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 05-16 075 DATE: May 17, 2021 ORDER Entitlement to service connection for bladder dysfunction, to include as secondary to service-connected lumbar spine degenerative disc disease (DDD) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has bladder dysfunction that had its onset in service, is otherwise related to his military service, or was caused or aggravated by his service-connected lumbar spine DDD. CONCLUSION OF LAW The criteria for service connection for bladder dysfunction have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 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 March 1991 to January 1999. In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In April and July 2012 and May 2017, the Board remanded the claim for further development. After the issuance of the June 2014 Statement of the Case (SOC), the Veteran submitted evidence pertinent to his claim. This evidence has not yet been considered by the Agency of Original Jurisdiction (AOJ), and the Veteran has not waived AOJ consideration. However, section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, amended 38 U.S.C. § 7105 by adding paragraph (e), which addresses procedures for claims in which new evidence was received from the veteran after the last SOC without a waiver of AOJ consideration. Under that provision, if new evidence is submitted by the veteran with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Therefore, such claims should not be remanded solely for consideration of such new evidence without a request from the veteran. In this case, the Veteran's Substantive Appeal was submitted in July 2014, and additionally, he did not explicitly ask for AOJ review of the new evidence. As such, no waiver is necessary, and the Board shall consider the newly submitted evidence in the first instance. Service connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. 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). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims 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). Analysis The Veteran contends that his bladder dysfunction is due to his service-connected lumbar spine disability. The Veteran's service treatment records (STRs) do not document complaints, treatments, or diagnosis of a bladder dysfunction. During his January 1991 Report of Medical Examination, Enlistment exam, the Veteran's G-U system systems was noted to be normal. The Veteran stated that he did not have frequent or painful urination. During his July 1998 Medical Board exam, the Veteran stated that he did not experience frequent or painful urination. At the outset, the Board finds that the weight of the evidence is against finding that the Veteran's bladder dysfunction is etiologically related to his military service on a direct basis. The Board notes that the VA examination did not specifically addressed whether the Veteran's disability may be directly related to service. However, the record does not reflect, and the Veteran has not claimed, that he actually experienced bladder dysfunction while he was on active duty, and he has not claimed to have had a continuity of symptoms of bladder dysfunction dating from his active duty through the present. Rather, he has related the bladder dysfunction to his lumbar spine disability. Additionally, the medical evidence of record does not contain a nexus opinion relating the Veteran's bladder dysfunction to his military service. As such, the Board finds that service connection for bladder dysfunction is not warranted on a direct basis. Regarding secondary service connection, the Veteran has been diagnosed with bladder dysfunction. As such, element one under Wallin is met. The Veteran is service connected for lumbar spine DDD. As such, element two under Wallin is met. In October 2005, the Veteran was seen for pain toward his groin. He stated that he was urinating a lot. In May 2009, the Veteran was seen for frequent urination. He was diagnosed with urinary frequency. He also experienced suprapubic pain, and was positive for polyuria (according to Dorland's Illustrated Medical Dictionary, 506 (30th ed. 2003), "polyuria is the passage of a large volume of urine in a given period, as in diabetes mellitus."). In September 2009, the Veteran underwent surgery for his lumbar spine disability. His pre-and post-operative diagnosis was DDD. In March 2011, the Veteran was afforded a VA examination to determine the severity of his lumbar spine disability. The Veteran stated that his in-service injury occurred when he was carrying over 50 lbs. He was diagnosed with disc disease. In 2009, the Veteran had surgery to repair his condition. He tolerated the surgery well and had no complications. The examiner noted that the Veteran experienced subacute urinary issues beginning in 2008. The Veteran stated that he experienced urinary frequency, but he denied any retention issues. The examiner stated that the Veteran's bladder symptoms were not due to his spinal condition. The bladder symptoms were due to unrelated G-U condition. The examiner further stated that neurologic involvement at the spine does not cause these symptoms. Instead, it had the opposite effects of urinary retention symptoms and not urinary frequency with nocturia. In September 2012, the Veteran saw his private physician. The Veteran complained of lower back and bilateral leg pain. The examiner confirmed the Veteran's lumbar DDD diagnosis. The examiner noted pertinent negatives to included bladder and urinary tract dysfunction. In December 2017, the Veteran's private physician stated that the Veteran's urinary bladder was normal. Additionally, the Veteran's VA treatment records note lumbar pain; however, the Veteran did not have urinary symptoms associated with his lumbar spine pain. In February 2020, the Veteran was afforded a VA examination to determine the severity of his lumbar spine disability. The examiner noted that the Veteran did not have any neurologic abnormalities or findings related to his back condition such as bladder problems/pathologic reflexes. During his January 2021 Board hearing, the Veteran stated that in 2009, L5 was pinching the nerves in his lumbar spine. His doctor told him that he had to have surgery. The Veteran stated after the surgery, he began having a lot of problems with his bladder. However, he also stated that he had a bit of bladder issues prior to his 2009 surgery. He stated that the bladder issues were further exacerbated after his 2018 lumbar spine surgery. Based on the evidence of record, the Board finds that service connection for bladder dysfunction is not warranted on a secondary basis. The Board notes that during his March 2011 lumbar spine VA examination, the examiner stated that the Veteran's bladder symptoms were due to unrelated G-U condition. The examiner further stated that neurologic involvement at the spine does not cause these symptoms. Instead, it had the opposite effects of urinary retention and not urinary frequency with nocturia. Additionally, the Veteran's 2017 private physician and the February 2020 VA examiner stated that the Veteran did not have any neurologic abnormalities or findings such as bladder problems/pathologic reflexes related to his lumbar spine disability. The Board also notes that the medical evidence of record does not contain a nexus opinion relating the Veteran's bladder dysfunction to his service-connected lumbar spine disability. Therefore, element three under Wallin is not met. The Board has considered the Veteran's contention regarding his bladder dysfunction, i.e., his bladder issues are related to his lumbar spine surgery. However the Board notes that in October 2005, prior to his September 2009 lumbar spine surgery, the Veteran complained that he was urinating a lot. In May 2009, he was once again seen and complained of frequent urination. He was diagnosed with urinary frequency. He was also positive for polyuria. As noted above, the VA examiners and the Veteran's private physician stated that the Veteran did not have any neurologic abnormalities or findings related to his lumbar spine disability. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran's bladder dysfunction and service, to include his service-connected disability, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In the absence of a nexus, the claim for service connection for bladder dysfunction is denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore 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.