Citation Nr: 21040724 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-23 298 DATE: July 6, 2021 REMANDED 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a bladder disability is remanded. REFERRED The issue of entitlement to service connection for diabetes mellitus (diabetes) was raised by the Veteran in an August 2019 letter, and he submitted two documents in support of this assertion. The parties agreed in the March 2021 Joint Motion for Remand (JMR) that the Board failed to address the theory of entitlement that his urinary dysfunction and enuresis in service were the first clear symptoms of the claimed diabetes. The Agency of Original Jurisdiction (AOJ) has not addressed that issue; therefore, the Board does not yet have jurisdiction over it. However, based on the parties' agreement, the claim of service connection for a bladder disorder is inextricably intertwined with the matter of service connection for a bladder disability. Therefore, it requires remand and referral to the AOJ for appropriate action to be completed before the claim of service connection for a bladder disorder is readjudicated. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 1967 to November 1969. This matter is before the Board of Veterans' Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal of a November 2017 rating decision. The Regional Office (RO) had certified the issues on appeal as petitions to reopen the previously denied claims for service connection for spinal stenosis, backache, and enuresis. However, the Board April 2019 decision re-characterized the claims as entitlement to service connection for a back disability and service connection for a bladder disorder, remanded the matters for further development, and found that the claims could proceed with consideration on the merits. In December 2019, the matter was again remanded for additional evidentiary development. An April 2020 Board decision denied service connection for a low back disability and a bladder disability. The Veteran appealed that decision to the CAVC. An April 2021 CAVC Order vacated the Board's April 2020 decision and remanded the claims to the Board for further development and re-adjudication consistent with terms of a March 2021 Joint Motion for Remand (JMR). [The Board also notes that petitions to reopen the claims on appeal were previously before the Board in June 2014, when a Board decision denied service connection for a chronic bladder disability, to include enuresis, and reopened a claim of service connection for a chronic back disability and denied the claim on de novo consideration. The June 2014 Board decision was affirmed by an October 2015 CAVC Memorandum Decision.] 1. Entitlement to service connection for a low back disability. The parties agree that vacatur and remand are required because the Board erred by failing to provide an adequate statement of reasons or bases for its decision regarding the Veteran's low back disability claim. The parties agreed that the Board erred by failing to address whether the August 2019 VA medical opinion was adequate in light of the Veteran's report of recurrent back pain in his June 1969 separation report of medical history and failing to address the examiner's rationale for his negative nexus opinion that the Veteran's back ailments resolved during service. The August 2019 VA examiner acknowledged that in a June 1969 report of medical history, the Veteran indicated that he had or currently has recurrent back pain but explained that his service treatment records (STRs) showed that his various back ailments did resolve as is expected of such minor injuries. He also explained that disc degeneration and arthritis are a common development because age related changes are present in 40 percent of adults over age 35 and in almost all individuals over age 50, and that such degenerative changes are acquired due to the expected wear and tear seen with aging as indicated in medical literature. The examiner noted that the type of back ailments that the Veteran experienced on active duty would fit the description of minor back trauma because several lumbar spine imaging studies while hr was on active duty showed no evidence of traumatic changes. Consequently, it would not be expected that the events that occurred to the Veteran during his military service would result in later complications affecting the lumbar spine (and reported supported by the medical literature). The examiner further noted that there were no postservice records of continuity of complaints involving the Veteran's low back soon after he left military service. Rather, it was many years after that separation (reportedly beginning in 1982) that the back issues arose, and that this considerable interval would sever a causal connection with his military service. The Board finds the August 2019 opinion inadequate for several reasons. The examiner failed to acknowledge that some of the Veteran's post service private treatment records which possibly showed treatment immediately after service for low back problems, were destroyed (due to storage rules for medical files) as noted in June 2009 and October 2009 correspondence from private providers, and failed to recognize that the Veteran had complained of back pain beginning in service and well before his "old age." He essentially ignored the probable existence of such records and simply noted that back ailments did not appear in the record until at least 1982. The Board also notes that the lack of degenerative changes on lumbar spine X-rays during service is not fatal to the Veteran's claim and that although the examiner acknowledged the Veteran's report of current back pain on a June 1969 report of medical history, he simply found that any back pain in service had resolved, instead of adequately addressing the reports of (ongoing) pain and whether or not such reports establish that the recurrent back pain had actually not resolved. Further, the examiner did not adequately address all the Veteran's lay statements regarding onset and continuity, such as in his May 2012 Form 9, January 2015 informal brief, and January 2020 statement. Therefore, remand for an adequate medical advisory opinion regarding the etiology of the Veteran's low back disability is necessary. 2. Entitlement to service connection for a bladder disability. In the March 2021 JMR, the parties focused more on the issue of service connection for diabetes that was raised by the Veteran in August 2019, and is being referred to the AOJ (as noted above), than the issue of service connection for a bladder disability. However, in the argument submitted to CAVC by his representative, the Veteran asserts that service connection for a bladder disability should be remanded due to the inadequacy of the August 2019 VA opinion. On August 2019 VA examination, the examiner opined that it was less likely than not that the Veteran's bladder disability was related to his service. He explained that the Veteran had a normal urological workup while on active duty, and there were no abnormalities present (especially no evidence of a large prostate or small bladder), and noted that previous providers felt that the Veteran's enuresis was functional in nature. Also, the examiner noted that the Veteran's current urinary frequency was most likely due to his poorly controlled diabetes mellitus because urinary frequency and nighttime urination are characteristic feature of uncontrolled diabetes. He explained that such disorder started sometime after the Veteran's separation from service and that there are no postservice records showing a continuity of complaints of a bladder disability soon after he left service. Rather it was many years after that separation that the urinary issues arose, and this considerable interval would sever a causal connection to his military service. [The examiner also opined that it was more likely than not that the Veteran's bladder disability was due to his service-connected diabetes mellitus, (which is not yet service-connected) and suggests, in part, an inaccurate review of the claims file.] The Board finds that the August 2019 opinion is inadequate for multiple reasons. The examiner did not address evidence in the Veteran's STRs by various providers that his urinary frequency and enuresis were due to psychological issues caused by service, did not address the medical treatise evidence submitted by the Veteran in August 2019 indicating that enuresis in adults can be caused by stress, anxiety, fear, and other psychological issues, and did not address buddy statements from the Veteran's wife and son indicating that he has suffered from urinary problems for over 40 years. Notably, in her October 2017 statement, his wife related that she had been married to the Veteran for 47.5 years (since approximately the time of his separation from service) and that she had noticed his urinary problems throughout the entirety of their marriage. [The Board also finds that the December 2019 opinion (only as it concerns whether the Veteran's low back and bladder disabilities were related to his service), inadequate, because the rationale used by the examiner in that opinion is essentially the same as that used in the August 2019 opinion and found inadequate, above.] Therefore, remand is necessary for an adequate medical advisory opinion regarding the etiology of the Veteran's bladder disability. The matters are REMANDED for the following: 1. Arrange for the Veteran's record to be forwarded to an appropriate clinician (other than the August 2019 and December 2019 opinion provider) to determine the likely etiology of his low back disability, and specifically whether or not a low back disability is directly related to (was incurred during) his active service/to include as due to activities therein. [If further examination of the Veteran is deemed necessary for the opinion sought, such should be arranged.] The consulting provider should review the Veteran's record and respond to the following: (a) Identify (by diagnosis) each low back disability entity found/or shown by the record during the pendency of the instant claim. (b) Identify the likely etiology for each low back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it was incurred in service? The provider is asked to acknowledge the Veteran's report of recurrent back pain in his June 1969 separation report of medical history, and lay statements (to include on his May 2012 Form 9, his January 2015 informal brief, and his January 2020 statement) regarding continuity and post service treatment). (c) If a low back disability was not incurred in service, identify the etiology considered more likely and discuss the impact, if any, of the Veteran's reported post service back injuries on his current low back disability to include an August 1985 report of a 1981 injury when he slid off a bus and twisted his back as he fell to the ground, a February 1994 decision of the Florida Department of Labor and Employment Security indicates that there is evidence that the Veteran was involved in work-related accidents in July 1971, August 1971, June 1972, December 1972, September 1981, April 1985, and July 1990 and a March 1993 medical record that indicates that the Veteran's primary disability was due to an on the job injury or illness in April 1985 and June 1993. All opinions should include rationale. 2. Arrange for all necessary development and adjudicate the claim of service connection for diabetes (and advise the Veteran and his representative of the decision). 3. When the development sought in # 2 is completed, arrange for the Veteran's record to be forwarded to an appropriate clinician (other than the August 2019 and December 2019 opinion-provider) for review and an advisory medical opinion regarding the likely etiology of his bladder disability, and specifically whether it is directly related to (was incurred during) his active service/to include as due to activities therein. [If further examination of the Veteran is deemed necessary for the opinion sought, such should be arranged.] The consulting provider should review the Veteran's record and respond to the following: (a) Identify (by diagnosis) each bladder disability entity found/or shown by the record during the pendency of the instant claim. (b) Identify the likely etiology for each bladder disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it was incurred in service? If not, is it at least as likely as not that it was caused or aggravated (is a complication of) any diabetes that is determined by the AOJ to be service-connected? (c) If a bladder disability was not incurred in service, and was not caused or aggravated by (a complication of) a disability that is determined to be service connected, identify the etiology for the bladder disability that is considered to be more likely, and explain why that is so. All opinions should include rationale. The provider is asked to acknowledge the evidence in the Veteran's STRs suggesting that his urinary frequency and enuresis were in service were due to psychological issues incurred in service, the medical treatise evidence submitted by the Veteran indicating that enuresis in adults can be caused by stress, anxiety, fear, and other psychological issues, and the buddy statements from the Veteran's wife and son indicating that he has suffered from urinary problems for over 40 years. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.