Citation Nr: 21031243 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-46 005A DATE: May 21, 2021 ORDER An increased disability rating in excess of 60 percent for residuals of bladder cancer is denied. Service connection for obstructive sleep apnea, including as secondary to the service-connected bladder cancer residuals, is denied. REMANDED Service connection for a psychiatric disorder, including as secondary to the service-connected bladder cancer residuals, is remanded. Service connection for bladder infections as secondary to the service-connected bladder cancer residuals is remanded. FINDINGS OF FACT 1. For the entire rating period on appeal, residuals of bladder cancer have been manifested by urinary leakage requiring the use of absorbent material that must be changed more than four times per day, with no local recurrence of cancer or associated metastasis. 2. The Veteran is currently diagnosed with sleep apnea. 3. No respiratory injury or disease or sleep apnea symptoms were manifested during service. 4. Sleep apnea is not causally or etiologically related to service. 5. Sleep apnea was not caused or worsened in severity by the service-connected residuals of bladder cancer. CONCLUSIONS OF LAW 1. For the increased rating period on appeal, the Veteran has been in receipt of the maximum 60 percent rating for residuals of bladder cancer. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.115a, 4.115b Diagnostic Code 7528. 2. The criteria for service connection for sleep apnea, to include as secondary to the service-connected bladder cancer residuals, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1983 to April 1987. In November 2018, the Board, in pertinent part, remanded the issues on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. Further discussion of the AOJ compliance with the November 2018 Board remand directives as to the issues of service connection for a psychiatric disorder and bladder infections is included in the Remand section below. See Stegall v. West, 11 Vet. App. 268 (1998). As to the issues of service connection for sleep apnea and a disability rating in excess of 60 percent for bladder cancer residuals, VA examination reports and VA medical opinions have been associated with the record; therefore, an additional remand to comply with the November 2018 remand directives is not required as to these issues. Id. 1. Rating Bladder Cancer Residuals Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Veteran contends generally that the service-connected bladder cancer residuals have been manifested by more severe symptoms and impairment than contemplated by the 60 percent disability rating assigned. See September 2016 statement. For the rating period on appeal, the residuals of bladder cancer have been rated under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7528, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, a rating of 100 percent shall be assigned and shall continue with a mandatory VA examination at the expiration of six months. Any change in rating based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, the evaluation is to be based upon residuals as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a. As an initial matter, the Veteran does not assert, and the evidence does not otherwise show, that there has been a local reoccurrence or metastasis; therefore, there is no contention or factual basis for a 100 percent disability rating under Diagnostic Code 7528. 38 C.F.R. § 4.115b. Similarly, the evidence of record in this case does not reflect that renal dysfunction is the predominant residual symptom; therefore, a rating based on renal dysfunction is not warranted. Specifically, the December 2020 VA examiner assessed that the Veteran did not have renal dysfunction. See December VA examination report. Voiding dysfunction is to be rated as urine leakage, urinary frequency, or obstructed voiding. 38 C.F.R. § 4.115a. For continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent rating is assigned when the wearing of absorbent materials that must be changed less than two times per day is required; a 40 percent rating is assigned when the wearing of absorbent materials that must be changed two to four times per day is required; and a 60 percent rating is assigned when the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day is required. Urinary frequency is rated at 10 percent disabling with daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is assigned for a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating is assigned for a daytime voiding interval less than one hour, or awakening to void five or more times per night. Obstructed voiding warrants a maximum schedular rating of 30 percent for urinary retention requiring intermittent or continuous catheterization. A 10 percent rating is assigned for less severe symptoms. 38 C.F.R. § 4.115a. In addition to the rating criteria for voiding dysfunction discussed above, Diagnostic Code 7527 allows for a rating based on urinary tract infections, if those symptoms predominate. In this case, however, there is no indication that the service-connected bladder cancer residuals have manifested a predominant symptom of urinary tract infections; therefore, there is no basis for assigning a disability rating for residuals of prostate cancer under Diagnostic Code 7527. 38 C.F.R. § 4.115b. See December 2020 VA examination report. In this case, the assigned 60 percent disability rating is the maximum schedular disability rating under Diagnostic Code 7528 based on voiding dysfunction; therefore, where as in this case there is not recurrence of the cancer, a rating in excess of 60 percent is not available for the residuals. 38 C.F.R. § 4.115a. While disability ratings in excess of 60 percent are available for bladder cancer residuals when renal dysfunction predominates, voiding dysfunction has been the predominant residual symptom in this case for the entire rating period. See December 2020 VA examination report, VA treatment records. A higher disability rating is not possible under the facts of this case because the Veteran is in receipt of the maximum rating under 38 C.F.R. § 4115b, Diagnostic Code 7528. 2. Service Connection for Sleep Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). 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 The Veteran essentially contends that sleep apnea is related to service and/or is secondary to the service-connected bladder cancer residuals. The Veteran is already service connected for a sleep disability associated with the service-connected bladder cancer residuals, to include insomnia. As to sleep apnea, the December 2020 VA examination report reflects currently diagnosed sleep apnea. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding a respiratory injury or disease during service. The service treatment records appear complete, and contain no complaints, symptoms, findings, or diagnosis showing or suggesting sleep apnea. Service treatment records reflect that the Veteran sought treatment for various conditions, including a cough, symptoms of a cold, and lower back pain; however, there is no indication from the service treatment records that the Veteran ever sought treatment for any respiratory injury or sleep-disorder symptoms or reported any history of such injury or symptoms during service. To the contrary, the December 1986 report of medical history reflects the Veteran specifically denied trouble sleeping. Significantly, the December 1986 service separation report reflects the Veteran was clinically evaluated as normal. As the service treatment records are complete and show complaints and treatment for other disorders, the Veteran similarly would have reported or complained of respiratory symptoms or sleep apnea, had such occurred during service. Sleep apnea symptoms, especially sleep problems or daytime sleepiness or fatigue, would have ordinarily been recorded during service during the normal course of treatment or examination; therefore, the complete service treatment records, which were generated contemporaneous to service, are likely to accurately reflect the Veteran's physical condition, so are of significant probative value. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded). Regarding the theory of direct service connection, the Board finds that sleep apnea is not related to an in-service injury or disease because the weight of the evidence demonstrates no in-service injury or disease or even event to which the disorder could be related. As analyzed above, the weight of the evidence shows no respiratory symptoms during service, that the Veteran did not otherwise sustain a respiratory injury during service, and that the Veteran did not even experience relevant symptoms of sleep apnea during service. Regarding the theory of secondary service connection, the December 2020 VA examiner opined that sleep apnea was not caused or aggravated by the service-connected bladder cancer residuals. The December 2020 VA examiner reasoned that sleep apnea and bladder cancer residuals have unrelated pathophysiological processes. Insomuch as the Veteran asserts that sleep apnea is directly related to service and/or the service-connected bladder cancer residuals, the Board finds that, under the specific facts of this case that include no in-service respiratory injury or disease or sleep apnea symptoms, and an already service-connected and compensated sleep disorder that creates symptoms that overlap with sleep apnea, the Veteran is not competent to relate the currently diagnosed sleep apnea to active service. While the Veteran is competent to describe symptoms he experiences at any time while awake, he does not have the requisite medical expertise needed to provide a competent opinion regarding causation of a complex medical condition such as sleep apnea during sleep and its relationship to active service and/or the service-connected bladder cancer residuals. Such a nexus opinion requires specialized medical knowledge of the respiratory system and knowledge of various possible etiologies of sleep apnea, especially in the context of this case where there is no in-service injury or in-service symptoms, and would also require differentiation from other service-connected sleep impairment symptoms. For these reasons, the Veteran's unsupported lay assertion of nexus to service or service-connected disability is of no probative value. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for sleep apnea, to include as secondary to the service-connected bladder cancer residuals; therefore, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Service Connection for Psychiatric Disorder 4. Secondary Service Connection for Bladder Infections In November 2018, in pertinent part, the Board remanded this matter to obtain medical opinions regarding the etiology of the claimed psychiatric and bladder infection disorders. As to service connection for a psychiatric disorder, a January 2021 VA examination report reflects the VA examiner diagnosed the already service-connected insomnia and no other mental health disorder. The January 2021 VA examiner wrote that the claims file did not reflect any diagnosis or treatment for a mental health disorder other than insomnia; however, an August 2014 private examination report reflects the private examiner diagnosed anxiety disorder, assessed that the anxiety disorder caused total occupational and social impairment, and related the anxiety disorder to the service-connected bladder cancer residuals. As to secondary service connection for bladder infections, the VA examiner did not offer a direct or secondary service connection opinion, reasoning that the Veteran was not receiving care for an active bladder infection. As such, the December 2021 purported VA opinions did not specifically address the etiology of the claimed psychiatric and bladder infection disorders, as specifically directed by the November 2018 Board remand and as noted in the instructions to the VA examiner. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of service connection for a psychiatric disorder and bladder infections are REMANDED for the following action: Request an addendum or new medical opinion. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should offer the following opinions with supporting rationale: Psychiatric Disorder Does the Veteran have a distinct diagnosed psychiatric apart from the service-connected insomnia? If so, is it at least as likely as not a psychiatric disorder was caused by the service-connected bladder cancer residuals? Is it at least as likely as not a psychiatric disorder was aggravated by (worsened in severity beyond a normal progression by) the service-connected bladder cancer residuals? Please specifically address the August 2014 private examination report reflecting the private examiner diagnosed anxiety disorder, assessed that the anxiety disorder caused total occupational and social impairment, and related the anxiety disorder to the service-connected bladder cancer residuals. Bladder Infections Did the Veteran have a bladder infection and/or bladder infections at any time during the appeal period (from November 2012 to present)? If so, is it at least as likely as not the bladder infection(s) was/were caused by the service-connected bladder cancer residuals? Is it at least as likely as not the bladder infection(s) was aggravated by (worsened in severity beyond a normal progression by) the service-connected bladder cancer residuals? Please specifically address the Veteran's contention that he has had repeated bladder infections that have been treated with antibiotics. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.