Citation Nr: 1040377	
Decision Date: 10/27/10    Archive Date: 11/01/10

DOCKET NO.  04-43 523	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in St. Petersburg, 
Florida


THE ISSUES

1.  Whether new and material evidence had been received to reopen 
a claim for service connection for bilateral lower extremity 
weakness.

2.  Entitlement to service connection for a chronic 
gastrointestinal disorder.

3.  Entitlement to an increased rating for residuals of bladder 
and sexual dysfunction secondary to encephalopathy, rated as 30 
percent disabling.

4.  Whether new and material evidence had been received to reopen 
a claim for service connection for organic bowel syndrome.

5.  Whether new and material evidence had been received to reopen 
a claim for service connection for hypothyroidism as a residual 
of treatment for hyperthyroidism.

6.  Entitlement to a total rating based on individual 
unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and L. V.


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from August 1977 to June 1991.  
The Veteran also had six years and three months of prior active 
duty service.

This matter comes before the Board of Veterans' Appeals (Board) 
from an August 2004 decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  
Custody of the case was subsequently transferred to the VA RO in 
St. Petersburg, Florida.  In May 2007, the Veteran and L. V. 
testified at a hearing before the undersigned.  In September 
2007, the Board remanded the appeal for additional development.

In January 2010, the Veteran's representative made a motion for 
Board to accept additional evidence in support of the appeal 
outside of the 90 day time period they had to provide this 
evidence.  The Board finds, that good cause having been shown, 
that it will grant the Veteran's motion, accept this evidence, 
and consider it when adjudicating the current appeal.  See 
38 C.F.R. § 20.1304 (2009).  Moreover, because the Veteran's 
representative in its December 2009 Brief waived agency of 
original jurisdiction (AOJ) review of this evidence on behalf of 
the claimant, the Board also finds that adjudication of this 
appeal may go forward without first remanding the evidence for 
AOJ review.  See 38 C.F.R. § 20.1304(c) (2009).  

In December 2009 and January 2010, the Veteran requested another 
hearing before a Veterans' Law Judge, in this instance, sitting 
at the Central Office in Washington, DC.  In this regard, 
controlling laws and regulations afford a claimant only one 
Veterans' Law Judge (VLJ) hearing in connection with an appeal to 
the Board when all the issues on appeal have already been 
addressed at a VLJ hearing.  See 38 C.F.R. § 20.700, 20.702, 
20.704 (2009).  Therefore, because all of the issues on appeal 
were addressed at his May 2007 VLJ hearing, the Board finds that 
the Veteran is not entitled to another VLJ hearing.  

At the Veteran's May 2007 hearing before the undersigned he 
raised the following claims: an application to reopen a claim of 
service connection for hyperthyroidism and a claim that the 
January 1993 rating decision that denied service connection for 
organic bowel syndrome was not final.  The Board's earlier 
September 2007 remand both noted that these claims are 
inextricably intertwined with the current applications to reopen 
the claims of service connection for organic bowel syndrome and 
hypothyroidism as a residual of treatment for hyperthyroidism and 
directed the AOJ to adjudicate these claims before readjudicating 
the applications to reopen the claims of service connection for 
organic bowel syndrome and hypothyroidism as a residual of 
treatment for hyperthyroidism.  However, this adjudication was 
not carried out by the AOJ.  See Stegall v. West, 
11 Vet. App. 268 (1998).  Therefore, the application to reopen a 
claim of service connection for hyperthyroidism and the claim 
that the January 1993 rating decision that denied service 
connection for organic bowel syndrome was not final are once 
again referred to the AOJ for it to adjudicate these claims.  

The applications to reopen the claims of service connection for 
organic bowel syndrome and hypothyroidism as a residual of 
treatment for hyperthyroidism as well as the claim for a TDIU are 
addressed in the REMAND portion of the decision below and are 
REMANDED to the RO via the Appeals Management Center (AMC), in 
Washington, DC.


FINDINGS OF FACT

1.  In April 2003, the RO most recently denied an application to 
reopen a claim of entitlement to service connection for bilateral 
lower extremity weakness and the Veteran was notified of this 
denial and given his appellate rights; he did not timely appeal. 

2.  Evidence received since the April 2003 rating decision is 
cumulative of that previously of record.

3.  The preponderance of the competent and credible evidence is 
against a finding that a chronic gastrointestinal disorder is 
related to service or was caused or aggravated by a service 
connected disability.

4.  The preponderance of the competent and credible evidence of 
record does not shows that the Veteran's residuals of bladder and 
sexual dysfunction secondary to encephalopathy causes him to wear 
absorbent materials which must be changed at least two to four 
times per day or to have daytime voiding interval less than one 
hour or awakening to void five or more times per night.  


CONCLUSIONS OF LAW

1.  New and material evidence has not been submitted sufficient 
to reopen a claim of entitlement to service connection for 
bilateral lower extremity weakness.  38 U.S.C.A. §§ 1110, 5100, 
5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.156, 3.159, 3.303 (2010).

2.  A chronic gastrointestinal disorder was not incurred in or 
aggravated by military service nor was it caused or aggravated by 
a service connected disability.  38 U.S.C.A. §§ 1110, 1131, 5100, 
5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. 
§ 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).

3.  The criteria for a rating in excess of 30 percent for 
residuals of bladder and sexual dysfunction secondary to 
encephalopathy have not been met at any time during the pendency 
of the appeal.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 
5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 
4.2, 4.7, 4.27, 4.115a, 4.115b, Diagnostic Code 7542 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an 
appropriate claim form, instructions for completing it, and 
notice of information necessary to complete the claim if it is 
incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty 
to notify the claimant of the information and evidence needed to 
substantiate and complete a claim, i.e., existence of a current 
disability, the degree of disability, and the effective date of 
any disability benefits.  The appellant must also be notified of 
what specific evidence he is to provide and what evidence VA will 
attempt to obtain.  VA thirdly has a duty to assist claimants in 
obtaining evidence needed to substantiate a claim.  This includes 
obtaining all relevant evidence adequately identified in the 
record and, in some cases, affording VA examinations.  
38 U.S.C.A. § 5103A. 

As to applications to reopen, the United States Court of Appeals 
for Veterans Claims (Court) in Kent v. Nicholson, 20 Vet. App. 1 
(2006), held that the terms "new" and "material" have 
specific, technical meanings that are not commonly known to VA 
claimants.  Because these requirements define particular types of 
evidence, when providing the notice required by the VCAA it is 
necessary, in most cases, for VA to inform claimants seeking to 
reopen a previously and finally disallowed claim of the unique 
character of evidence that must be presented.  Specifically, VA 
must notify a claimant of the evidence and information that is 
necessary to reopen the claim as well as notified of the evidence 
and information that is necessary to establish his entitlement to 
the underlying claim for the benefit in light of the specific 
bases for the prior denial of the claim.

Initially, the Board finds that there is no issue as to providing 
an appropriate application form or completeness of the 
application.  

Next, the Board finds that a letter dated in May 2004, prior to 
the August 2004 rating decision, along with the letters dated in 
September 2006, December 2006, December 2007, and November 2008 
provided the Veteran with notice that fulfills the provisions of 
38 U.S.C.A. § 5103(a) including notice of the laws and 
regulations governing disability ratings and effective dates as 
required by the Court in Dingess v. Nicholson, 19 Vet. App. 473 
(2006) and, as to the claim to reopen, notice of the reason for 
the prior denial of the claim as required by Kent, supra.  While 
the Veteran was not provided adequate VCAA notice prior to the 
adjudication of his claims, providing him such notice in the 
above letters, followed by a readjudication of the claims in the 
July 2009 supplemental statement of the case "cures" any timing 
problem associated with inadequate notice or the lack of notice 
prior to an initial adjudication.  Mayfield v. Nicholson, 
20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 
jasmine80@example.org.  Moreover, even if the above letters did not 
provided adequate 38 U.S.C.A. § 5103(a) notice, the Board finds 
that this notice problem does not constitute prejudicial error in 
this case because the record reflects that a reasonable person 
could be expected to understand what was needed to substantiate 
the claims after reading the above letters as well as the rating 
decision, statement of the case, supplemental statements of the 
case, and Board remand.  See Shinseki v. Sanders, 129 S.Ct. 1696 
(2009).  

As to the duty to assist, the Board finds that VA has secured all 
available and identified pertinent in-service and post-service 
evidence including the Veteran's available post-service records 
from the Biloxi and Gulf Port VA Medical Centers (VAMCs), Englin 
Air Force Base, Keesler Air Force Base, Thomas J. Manski, M.D., 
P.A., Open MRI of Fort Walton, Frank Zondlo, M.D., Bluewater 
Diagnostic Imaging Center, and Dr. Victor T. Bazzone.  The RO 
also verified that the Tampa VA Medical Center did not have any 
pre September 1992 treatment records of the Veteran in its 
possession. 

In this regard, the post-remand record does not show that the AOJ 
sent letters requesting the Veteran's outstanding records from 
Bluewater Diagnostic Imaging Center, Open MRI of Fort Walton, and 
Dr. Manski as directed by the Board in the September 2007 remand.  
Nonetheless, the Board finds that there was substantial 
compliance with the Board's remand directives because the Veteran 
failed to provide the AOJ with authorizations to requests these 
records while the appeal was in remand status despite being asked 
to do so in the December 2007 letter.  See D'Aries v. Peake, 22 
Vet. App. 97 (2008) (holding that only substantial, and not 
strict compliance with the terms of a remand request, is 
required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that 
there was no Stegall violation when the examiner made the 
ultimate determination required by the Board's remand, because 
such determination more than substantially complied with the 
Board's remand order); Also see Wood v. Derwinski, 1 Vet. App. 
190. 192 (1991) (holding that "the duty to assist is not always 
a one-way street.  If a veteran wishes help, he cannot passively 
wait for it in those circumstances where he may or should have 
information that is essential in obtaining the purtative 
evidence.").  Moreover, as noted above, a review of the record 
on appeal reveals that records from all these healthcare 
providers already appear in the record.  Therefore, the Board 
finds that a remand to attempt to obtain these records is not 
required.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) 
(the "'duty to assist' is not a license for a 'fishing 
expedition' to determine if there might be some unspecified 
information which could possibly support a claim . . . [and] this 
duty is limited to specifically identified documents that by 
their description would be facially relevant and material to the 
claim").  

As to the service connection claim, the record also shows that 
the Veteran was afforded a VA examination in December 2008 which 
is both adequate to adjudicate the claim and satisfies the 
Board's September 2007 remand request because, after a review of 
the record on appeal and examinations of the claimant, the 
examiner provided a medical opinion as to the origins or etiology 
of the claimant's disability which opinion was based on citation 
to relevant evidence found in the claims files.  See 38 U.S.C.A. 
§ 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) 
(holding that when VA undertakes to provide a VA examination or 
obtain a VA opinion, it must ensure that the examination or 
opinion is adequate); D'Aries, supra.

As to the increased rating claim, the record shows that the 
Veteran was afforded a VA examination in December 2008 which is 
both adequate to adjudicate the claim and satisfies the Board's 
September 2007 remand request because, after a review of the 
record on appeal and examinations of the claimant, the examiner 
provided a medical opinion as to the severity of the Veteran's 
disability that allows the Board to rate it under all applicable 
Diagnostic Codes.  Id. 

In summary, the facts relevant to this appeal have been properly 
developed and there is no further action to be undertaken to 
comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 
38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced 
as a result of the Board proceeding to the merits of the appeal.  
See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

The Claim to Reopen

The Veteran and his representative contend that the claimant's 
bilateral lower extremity weakness was caused by the viral 
encephalitis he had while on active duty and is not a residual of 
his non service connected low back disability.  It is also 
requested that the Veteran be afforded the benefit of the doubt. 

The law provides that if new and material evidence has been 
presented or secured with respect to matters which have been 
disallowed, these matters may be reopened and the former 
disposition reviewed.  38 U.S.C.A. § 5108.  New evidence means 
existing evidence not previously submitted to agency decision 
makers.  Material evidence means existing evidence that, by 
itself or when considered with previous evidence of record, 
relates to an unestablished fact necessary to substantiate the 
claim.  New and material evidence can be neither cumulative nor 
redundant of the evidence of record at the time of the last prior 
final denial of the claim sought to be reopened, and must raise a 
reasonable possibility of substantiating the claim.  38 C.F.R. 
§ 3.156(a).

The Court has held that in determining whether the evidence is 
new and material, the credibility of the newly presented evidence 
is to be presumed.  Kutscherousky v. West, 12 Vet. App. 369, 371 
(1999) (per curiam).  The Board is required to give consideration 
to all of the evidence received since the April 2003 rating 
decision in light of the totality of the record.  See Hickson v. 
West, 12 Vet. App. 247, 251 (1999).

In order to establish service connection for the claimed 
disorder, there must be (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease or 
injury; and (3) medical evidence of a nexus between the claimed 
in-service disease or injury and the current disability.  See 
38 C.F.R. § 3.303; Hickson v. West, 12 Vet. App. 247, 253 (1999).  
The requirement of a current disability is "satisfied when a 
claimant has a disability at the time a claim for VA disability 
compensation is filed or during the pendency of that claim."  
See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In evaluating the evidence in any given appeal, it is the 
responsibility of the Board to weigh the evidence and decide 
where to give credit and where to withhold the same and, in so 
doing, accept certain medical opinions over others.  Schoolman v. 
West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board 
has been charged with the duty to assess the credibility and 
weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 
(Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. 
Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 
2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. 
West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 
1 Vet. App. 190, 193 (1991).  Indeed, the Court has declared that 
in adjudicating a claim, the Board has the responsibility to do 
so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. 
Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board 
is free to favor one medical opinion over another, provided it 
offers an adequate basis for doing so.  Evans v. West, 
12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 
(1995).  

With the above criteria in mind, the Board notes that the April 
2003 rating decision that most recently denied the Veteran's 
application to reopen did so because the only evidence of record 
as to the etiology of the Veteran's lower extremity weakness 
showed it was due to his nonservice-connected low back 
disability.

The Board notes that since the April 2003 rating decision denied 
the Veteran's claim, VA has received medical records as well as 
written statements in support of the claim from the claimant, 
family members, friends, men he served with while on active duty 
and his representative as well as testimony at a May 2007 
hearing.  

As to the medical evidence, they show the Veteran's continued 
post-service complaints and/or treatment for  lower extremity 
weakness which he claims was caused by and has continued since 
his in-service encephalitis.  However, the records do not show 
in-service treatment for lower extremity weakness, demonstrate 
continuity of symptomatology for lower extremity weakness, or 
include a medical opinion linking the post-service lower 
extremity weakness to a disease or injury that occurred while on 
active duty.  See 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303; 
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing 
service connection requires finding a relationship between a 
current disability and events in service or an injury or disease 
incurred therein).  In fact, they simply continue to show that 
the Veteran's lower extremity weakness was caused by his 
nonservice-connected low back disability.

Therefore, the Board finds that this additional evidence does not 
relate to an unestablished fact necessary to substantiate the 
claim because it does not show that the Veteran has weakness in 
either lower extremity due to his military service.  For this 
reason, this evidence is not new and material as it is cumulative 
of evidence previously considered.  38 C.F.R. § 3.156(a).

As to the written statements from the Veteran, family members, 
friends, men he served with while on active duty, and his 
representative as well as the personal hearing testimony from him 
and L. V., these statements and testimony amount to nothing more 
than their continued claims that the claimant has weakness in his 
lower extremities and this disability was caused by his military 
service.  These claims were, in substance, before VA when the RO 
last decided the claim in April 2003.  Then, as now, lay persons 
not trained in the field of medicine, to include the Veteran, his 
family members, friends, men he served with while on active duty, 
and his representative, are not competent to offer an opinion 
regarding such medical questions as to whether the claimant has a 
disability due to military service because such an opinion 
requires medical training which they do not have.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303; Davidson, supra; Buchanan, 
supra; Jandreau, supra; Charles, supra; Espiritu v. Derwinski, 
2 Vet. App. 492, 494-95 (1992). 

Therefore, the newly received evidence tends to prove nothing 
that was not previously shown.  That the Veteran, his family 
members, friends, men he served with while on active duty, and 
his representative continue to claim that the appellant has 
weakness in his lower extremities due to his military service is 
not new evidence within the context of 38 C.F.R. § 3.156(a).  

Without new and material evidence the claim may not be reopened.  
Therefore, the benefit sought on appeal is denied.  Because the 
claimant has not fulfilled the threshold burden of submitting new 
and material evidence to reopen his finally disallowed claim, the 
benefit of the doubt doctrine is inapplicable.  Annoni v. Brown, 
5 Vet. App. 463, 467 (1993).

The Service Connection Claim

As to the claim of service connection for a chronic 
gastrointestinal disorder, the Veteran contends that it was 
caused by his military service including the viral encephalitis 
he had while on active duty and/or it was caused or aggravated by 
his know service connected residuals of that viral encephalitis.  
It is also requested that the Veteran be afforded the benefit of 
the doubt. 

As stated above, service connection is warranted where the 
evidence of record establishes that a particular injury or 
disease resulting in disability was incurred in the line of duty 
in the active military service or, if pre-existing such service, 
was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303.  If a condition noted during service is not shown to be 
chronic, then generally a showing of continuity of symptomatology 
after service is required for service connection.  38 C.F.R. 
§ 3.303(b).  In addition, service connection may also be granted 
on the basis of a post-service initial diagnosis of a disease, 
where the physician relates the current condition to the period 
of service.  38 C.F.R. § 3.303(d).  Service connection may also 
be granted where disability is proximately due to or the result 
of already service-connected disability.  38 C.F.R. § 3.310.  
Compensation is payable when service-connected disability has 
aggravated a non-service-connected disorder.  Allen v. Brown, 
7 Vet. App. 439 (1995) (en banc).

The Board notes that there was a recent amendment to the 
provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744-47 
(Sept. 7, 2006).  The amendment sets a standard by which a claim 
based on aggravation of a non-service-connected disability by a 
service-connected one is judged.  Although VA has indicated that 
the purpose of the regulation was merely to apply the Court's 
ruling in Allen, it was made clear in the comments to the 
regulation that the changes were intended to place a burden on 
the claimant to establish a pre-aggravation baseline level of 
disability for the non-service-connected disability before an 
award of service connection based on aggravation may be made.  
This had not been VA's practice, which suggests the possibility 
that the recent change amounts to a substantive change in the 
regulation.  For this reason, and because the Veteran's claim was 
pending before the regulatory change was made, the Board will 
consider the version of 38 C.F.R. § 3.310 in effect before the 
change, which is more favorable to the claimant.

As to service incurrence under 38 C.F.R. § 3.303(a), the Veteran 
service treatment records show his complaints, diagnoses, and 
treatment for viral encephalitis starting in June 1986.  
Moreover, his October 1990 separation examination reported a 
history of stomach, liver, and/or intestinal trouble.  
Furthermore, the Board finds that the Veteran is both competent 
and credible to report on the fact that he had gastrointestinal 
problems such as stomach pain, constipation, and bloating while 
on active duty because these symptoms are observable by a lay 
person.  See Davidson, supra; Buchanan, supra; Jandreau, supra; 
Charles, supra.  

However, the Veteran's October 1990 separation examination did 
not thereafter diagnose him was a gastrointestinal disorder.  
Likewise, the Veteran's service treatment records, including a 
January 1979 examination, the July 1986 summary of his 
hospitalization for viral encephalitis, an August 1986 
examination, an April 1987 medical evaluation board examination, 
and the November 1990 discharge physical were negative for 
complaints, diagnoses, or treatment for a chronic 
gastrointestinal disorder.  Moreover, the Board finds the service 
treatment records, which are negative for complaints, diagnoses, 
or treatment for a chronic gastrointestinal disorder more 
credible than the Veteran's, his family members, his friends, men 
he served with while on active duty, and his representative 
claims that he had problems with a gastrointestinal disorder 
while on active duty.  See Maxson v. West, 12 Vet. App. 453 
(1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000) (service 
incurrence may be rebutted by the absence of medical treatment 
for the claimed condition for many years after service); Forshey 
v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. 
Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the 
definition of evidence encompasses "negative evidence" which 
tends to disprove the existence of an alleged fact).  
Accordingly, entitlement to service connection for a chronic 
gastrointestinal disorder based on in-service incurrence must be 
denied despite the fact that the Veteran's and other's claims 
that he has adverse gastrointestinal symptomatology while on 
active duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

As to post-service continuity of symptomatology under 38 C.F.R. 
§ 3.303(b), the Board finds that the length of time between the 
Veteran's separation from active duty in 1991 and the first 
complaints of gastrointestinal problems in 2001 to be compelling 
evidence against finding continuity.  Put another way, the ten 
year gap between the Veteran's discharge from active duty and the 
first evidence of the claimed disorder weighs heavily against his 
claim.  See Maxson, supra; Mense v. Derwinski, 1 Vet. App. 354, 
356 (1991) (holding that VA did not err in denying service 
connection when the Veteran failed to provide evidence which 
demonstrated continuity of symptomatology, and failed to account 
for the lengthy time period for which there is no clinical 
documentation of his low back condition); Shaw v. Principi, 
3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim 
can constitute negative evidence that weighs against the claim).

In this regard, the Board acknowledges, as it did above, that the 
Veteran is competent to give evidence about what he sees and 
feels; for example, the claimant is competent to report that he 
had problems with adverse gastrointestinal symptomatology such as 
stomach pain constipation, and bloating since service.  See 
Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, 
supra.  The Board also acknowledges that the Veteran's family 
members, his friends, men he served with while on active duty, 
and his representative are competent to give evidence about what 
they see.  However, upon review of the claims folders, the Board 
finds that the Veteran's, his family members, his friends, men he 
served with while on active duty, and his representative 
assertions that the claimant has had his current gastrointestinal 
disorder since service are not credible.  In this regard, the 
Veteran's, his family members, his friends, men he served with 
while on active duty, and his representative's claims are 
contrary to what is found in the in-service and post-service 
medical records.  In these circumstances, the Board gives more 
credence and weight to the medical evidence of record, which is 
negative for complaints, diagnoses, or treatment for the claimed 
disorder for ten years following his separation from active duty, 
than the Veteran's, his family members, his friends, men he 
served with while on active duty, and his representative's 
claims.  Therefore, entitlement to service connection for a 
chronic gastrointestinal disorder based on post-service 
continuity of symptomatology must be denied.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303(b).

As for service connection based on the initial documentation of 
the disability after service under 38 C.F.R. § 3.303(d), the 
Board notes that the record is negative for a competent and 
credible medical opinion finding a causal association or link 
between the Veteran's a chronic gastrointestinal disorder and an 
established injury, disease, or event of service origin.  See 38 
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d); Rabideau, supra.  
In fact, the December 2008 VA examiner opined that it was not 
because the onset of the problem was more than a decade after 
service.  This opinion is not contradicted by any other medical 
opinion of record.  See Colvin v. Derwinski 1 Vet. App. 171, 175 
(1991) (VA may only consider independent medical evidence to 
support its findings and is not permitted to base decisions on 
its own unsubstantiated medical conclusions).

As to the Veteran's, his family members, his friends, men he 
served with while on active duty, and his representative's 
assertions that the claimant's chronic gastrointestinal disorder 
was caused by his military service, including his in-service 
viral encephalitis, the Board finds that this condition may not 
be diagnosed by its unique and readily identifiable features and 
therefore the presence of the disorder is a determination 
"medical in nature" and not capable of lay observation.  
Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, 
supra.  Therefore, since laypersons are not capable of opining on 
matters requiring medical knowledge, the Board finds that their 
opinions that a chronic gastrointestinal disorder was caused by 
service are not credible.  Routen v. Brown, 10 Vet. App. 183, 186 
(1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 
1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. 
West, 11 Vet. App. 124, 127 (1998).  The Board also finds more 
credible the opinion by the medical expert at the December 2008 
VA examination that his chronic gastrointestinal disorder was not 
caused by his military service than these lay claims.  See Black 
v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the 
probative value of medical statements, the Board looks at factors 
such as the individual knowledge and skill in analyzing the 
medical data).

Based on the discussion above, the Board also finds that service 
connection a chronic gastrointestinal disorder is not warranted 
based on the initial documentation of the disability after 
service because the weight of the competent and credible evidence 
is against finding a causal association or link between the post-
service disorder and an established injury, disease, or event of 
service origin.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303(d); Rabideau, supra.

As for service connection based on secondary service connection 
under 38 C.F.R. § 3.310, the Board notes that the record is 
negative for a competent and credible medical opinion finding 
that a service connected disability either caused or aggravated 
his chronic gastrointestinal disorder  See 38 U.S.C.A. §§ 1110, 
1131; 38 C.F.R. § 3.310; Allen, supra.  In fact, the December 
2008 VA examiner opined that it was not.  This opinion is not 
contradicted by any other medical opinion of record.  See Colvin, 
supra.

As to the Veteran's, his family members, his friends, men he 
served with while on active duty, and his representative's 
assertions that the claimant's chronic gastrointestinal disorder 
was caused by his service connected residuals of his viral 
encephalitis, the Board once again finds that special medical 
training and experience is required to provide a competent and 
credible medical opinion as to a link between one of the 
Veteran's service connected disabilities and his chronic 
gastrointestinal disorder.  Id.  Therefore, since laypersons are 
not capable of opining on matters requiring medical knowledge, 
the Board finds that their opinions that a chronic 
gastrointestinal disorder was caused or aggravated by a service 
connected disability not credible.  Routen v. Brown, 10 Vet. App. 
183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 
(Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also 
Bostain v. West, 11 Vet. App. 124, 127 (1998).   Moreover, for 
the reasons explained above, the Board finds more competent and 
credible the medical opinion provided by the December 2008 VA 
examiner that the Veteran's chronic gastrointestinal disorder was 
not caused or aggravated by a service connected disability than 
these lay claims.  See Black, supra. 

Based on the discussion above, the Board finds that service 
connection for a chronic gastrointestinal disorder is not 
warranted based on it being caused or aggravated by a service 
connected disability because the weight of the competent and 
credible evidence is against finding such a causal association or 
link between the current disability and a service connected 
disability.  See 8 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310; 
Allen, supra.

Accordingly, the Board must conclude that the weight of the 
evidence is against the claim of service connection for a chronic 
gastrointestinal disorder on a direct and a secondary basis.  See 
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.310.  

In reaching the above conclusions, the Board also considered the 
doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, 
as the preponderance of the evidence is against the claim, the 
doctrine is not for application.  See also, e.g., Ortiz v. 
Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 
1 Vet. App. 49 (1990).  



The Rating Claim

The Veteran and his representative contend that the claimant's 
residuals of bladder and sexual dysfunction secondary to 
encephalopathy warrant the assignment of an increased rating.  It 
is also requested that the Veteran be afforded the benefit of the 
doubt.

Disability evaluations are determined by the application of a 
schedule of ratings which is based, as far as can practically be 
determined, on the average impairment of earning capacity.  
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010).  Each service-
connected disability is rated on the basis of specific criteria 
identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2010).  
Additionally, although regulations require that a disability be 
viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2 
(2009), when assigning a disability rating, it is the present 
level of disability which is of primary concern.  Francisco v. 
Brown, 7 Vet. App. 55 (1994).  That being said, given unintended 
delays during the appellate process, VA's determination of the 
"current level" of a disability may result in a conclusion that 
the disability has undergone varying and distinct levels of 
severity throughout the entire time period that the increased 
rating claim has been pending.  In those instances, it is 
appropriate to apply staged ratings.  See Hart v. Mansfield, 
21 Vet. App. 505 (2007).

Regulations require that where there is a question as to which of 
two evaluations is to be applied, the higher evaluation will be 
assigned if the disability picture more nearly approximates the 
criteria required for that rating.  Otherwise, the lower rating 
will be assigned.  38 C.F.R. § 4.7.

In the August 2004 rating decision, the RO granted the Veteran a 
30 percent rating for residuals of bladder and sexual dysfunction 
secondary to encephalopathy under 38 C.F.R. § 4.115b, Diagnostic 
Code 7542.

Diagnostic Code 7542 provides that a neurogenic bladder is rated 
as voiding dysfunction.  38 C.F.R. § 4.115b.

In this regard, continual urine leakage, post-surgical urinary 
diversion, urinary incontinence, or stress incontinence requiring 
the wearing of absorbent materials which must be changed less 
than two times per day warrants a 20 percent rating; the need to 
wear absorbent materials which must be changed two to four times 
per day warrants a 40 percent rating; and the use of an appliance 
or wearing of absorbent materials which must be changed more than 
four times per day warrants a 60 percent rating.  38 C.F.R. 
§ 4.115a.

Urinary frequency with a daytime voiding interval between two and 
three hours or awakening to void two times per night warrants a 
10 percent rating; with a daytime voiding interval between one 
and two hours or awakening to void three to four times per night 
warrants a 20 percent rating; and with daytime voiding interval 
less than one hour or awakening to void five or more times per 
night warrants a 40 percent rating.  Id.

Obstructive voiding symptomatology with or without stricture 
disease requiring dilatation one to two times per year warrants a 
non-compensable evaluation.  Marked obstructive voiding 
symptomatology (hesitancy, slow or weak stream, decreased force 
of stream) with any one or a combination of post-void residuals 
greater than 150 cc, uroflowmetry with a marked diminished peak 
flow rate (less than 10 cc/sec), recurrent urinary tract 
infections secondary to obstruction, or stricture disease 
requiring periodic dilatation every two to three months, warrants 
a 10 percent rating.  Urinary retention requiring intermittent or 
continuous catheterization warrants a 30 percent rating.  Id.

Urinary tract infections requiring long-term drug therapy, one to 
two hospitalizations per year and/or requiring intermittent 
intensive management warrants a 10 percent rating.  Urinary tract 
infection where the evidence shows recurrent symptomatic 
infection requiring drainage and frequent hospitalization 
(greater than two times per year) and/or requiring continuous 
intensive management warrants a 30 percent rating.  Id.

As to an increased rating under the obstructive voiding and/or 
urinary tract infections criteria, the Board notes that the 30 
percent rating already assigned his disability equals the maximum 
rating possible under these rating criteria.  See 38 C.F.R. 
§ 4.115a.  Therefore, further discussion of these criteria is not 
warranted.  This is true throughout the period of time during 
which his claim has been pending and therefore consideration of 
staged ratings is not warranted.  Hart, supra.

As to an increased rating due to continual urine leakage, the 
Board finds that the Veteran is not entitled to an increased 
rating under this criterion because the record does not show that 
he must use an appliance or wear absorbent materials which must 
be changed more than four times per day.  In fact, not only are 
the treatment records negative for the Veteran's use of pads but 
the December 2008 VA examiner specifically opined that he did not 
have to use pads.  This opinion is not contradicted by any other 
medical opinion of record.  See Colvin, supra.  See 38 C.F.R. 
§§ 4.115a.  This is true throughout the period of time during 
which his claim has been pending and therefore consideration of 
staged ratings is not warranted.  Hart, supra.

As to an increased rating due to urinary frequency, the Board 
notes that the Veteran in statements in support of claim and his 
personal hearing testimony alleged, in substance, that he is 
voiding more than ten times during the day (i.e., he has daytime 
voiding interval less than one hour) and he awakens to void five 
or more times per night.  Moreover, the Board acknowledges, as it 
did above, that the Veteran is competent and credible to report 
on what he sees and feels such as the frequency of his voiding.  
See Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, 
supra.  Furthermore, some earlier VA treatment records noted the 
Veteran's complaints of nocturia six to seven times a night in 
December 2001 and complaints of nocturia five to six times a 
night in January 2002.

However, the Board also notes that, after starting medication, 
the Veteran's complaints of nocturia dropped to three to four 
times a night in February 2002 and one time a night in April 
2002.  Thereafter, a July 2002 VA treatment record documents the 
Veteran's complaints of nocturia three to four times a night, a 
January 2003 VA treatment record documents his complaints of 
nocturia four to five times a night, an April 2003 VA treatment 
record documents his complaints of nocturia three times a night, 
the May 2003 VA examination documents complaints of urinary 
frequency but no problems with nocturia, an April 2004 VA 
treatment record documents his complaints of nocturia three to 
four times a night with day time frequency, the May 2004 VA 
examination documents his complaints of nocturia four times a 
night along with some day time voiding, and the December 2008 VA 
examination documents his complaints of nocturia two to four 
times a night.

The Board finds more competent and credible the objective 
evidence found in the post-2002 treatment records regarding the 
frequency of the Veteran's daytime and nighttime voiding than the 
statement's from the claimant and the earlier VA treatment 
records because the statements found in the post-2002 treatment 
records were given, not for the purpose of obtaining additional 
VA compensation, but to obtain the appropriate medical care and 
they are therefore inherently more trustworthy.  See Evans, 
supra; Owens, supra.  Furthermore, the Board finds more competent 
and credible the medical opinions provided by the experts at the 
Veteran's VA examinations than these lay assertions.  See 
Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative 
value of medical opinion evidence is based on the medical 
expert's personal examination of the patient, the physician's 
knowledge and skill in analyzing the data, and the medical 
conclusion the physician reaches....  As is true with any piece 
of evidence, the credibility and weight to be attached to these 
opinions [are] within the province of the [Board as] 
adjudicators. . .").

Therefore, the claim for a higher evaluation due to urinary 
frequency must also be denied because the preponderance of the 
competent and credible evidence of record does not show that his 
disability causes daytime voiding interval less than one hour or 
causes him to awaken to void five or more times per night.  This 
is true throughout the period of time during which his claim has 
been pending and therefore consideration of staged ratings is not 
warranted.  Hart, supra.

The Board will next considered the application of 38 C.F.R. 
§ 3.321(b)(1) (2010).  In this regard, although the Veteran and 
his representative claim that the rating schedule does not 
adequately compensate the claimant for the problems caused by his 
residuals of bladder and sexual dysfunction secondary to 
encephalopathy, the evidence does not objectively show an 
exceptional or unusual disability picture as would render 
impractical the application of the regular schedular rating 
standards.  Id.  There simply is no objective evidence that his 
residuals of bladder and sexual dysfunction secondary to 
encephalopathy, acting alone, has resulted in frequent periods of 
hospitalization or in marked interference with employment.  

It is undisputed that this disability affects employment, but it 
bears emphasis that the schedular rating criteria are designed to 
take such factors into account.  The schedule is intended to 
compensate for average impairments in earning capacity resulting 
from service-connected disability in civil occupations.  
38 U.S.C.A. § 1155.  "Generally, the degrees of disability 
specified in the rating schedule are considered adequate to 
compensate for considerable loss of working time from 
exacerbations or illnesses proportionate to the severity of the 
several grades of disability."  38 C.F.R. § 4.1.  Therefore, 
given the lack of objective evidence showing unusual disability 
not contemplated by the rating schedule, the Board concludes that 
the criteria for submission for extra-schedular consideration 
pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Thun v. 
Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 
(1996).

Finally, the Board considered the doctrine of reasonable doubt.  
However, because the preponderance of the evidence is against the 
Veteran's claim for a rating in excess of 30 percent for his 
residuals of bladder and sexual dysfunction secondary to 
encephalopathy, the doctrine is not for application.  Gilbert, 
supra.  


ORDER

The application to reopen a claim of entitlement to service 
connection for bilateral lower extremity weakness is denied.

Service connection for a chronic gastrointestinal disorder is 
denied.

A rating in excess of 30 percent for residuals of bladder and 
sexual dysfunction secondary to encephalopathy is denied at all 
times during the pendency of the appeal.


REMAND

As to the applications to reopen the claims of service connection 
for organic bowel syndrome and hypothyroidism as a residual of 
treatment for hyperthyroidism, as noted in the September 2007 
remand and the introduction above, these issues are inextricably 
intertwined with the Veteran's application to reopen a claim of 
service connection for hyperthyroidism and the claim that the 
January 1993 rating decision that denied service connection for 
organic bowel syndrome was not final.  However, despite the fact 
that the September 2007 remand directed the AOJ to adjudicate 
these claims before readjudicating the applications to reopen the 
claims of service connection for organic bowel syndrome and 
hypothyroidism as a residual of treatment for hyperthyroidism, 
this adjudication was not carried out.  Therefore, VA 
adjudication of the applications to reopen the claims of service 
connection for organic bowel syndrome and hypothyroidism as a 
residual of treatment for hyperthyroidism must be placed on hold 
until the AOJ adjudicates the Veteran's application to reopen a 
claim of service connection for hyperthyroidism and the claim 
that the January 1993 rating decision that denied service 
connection for organic bowel syndrome was not final.  See Harris 
v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a 
claim is inextricably intertwined with another claim, the claims 
must be adjudicated together in order to enter a final decision 
on the matter).  

Likewise, as to the claim for a TDIU the Board finds that 
adjudication of this claim is inextricably intertwined with the 
as yet to be adjudicated claims outlined above.  Therefore, the 
Board also finds that adjudication of the TDIU claim must also be 
placed on hold until the AOJ adjudicates the above claims.  Id.

Accordingly, these issues are REMANDED to the AMC/RO for the 
following actions:

1.  The AMC/RO in a rating decision must 
adjudicate the Veteran's application to 
reopen a claim of service connection for 
hyperthyroidism and the claim that the 
January 1993 rating decision that denied 
service connection for organic bowel syndrome 
was not final.

2.  If the Veteran's application to reopen a 
claim of service connection for 
hyperthyroidism and/or the claim that the 
January 1993 rating decision that denied 
service connection for organic bowel syndrome 
was not final is denied, then after the 
time to perfect an appeal as to the 
denied claim has run the AMC/RO should 
readjudicate the applications to reopen the 
claims of service connection for organic 
bowel syndrome and hypothyroidism as a 
residual of treatment for hyperthyroidism as 
well as the claim for a TDIU.

3.  If the applications to reopen the claims 
of service connection for organic bowel 
syndrome and hypothyroidism as a residual of 
treatment for hyperthyroidism and/or the 
claim for a TDIU are denied, the AMC/RO 
should issue the Veteran a supplemental 
statement of the case (SSOC).  The SSOC must 
contain notice of all relevant actions taken 
on the claims for benefits, to include a 
summary of the evidence received and any 
evidence not received, and all applicable 
laws and regulations considered pertinent to 
the issues currently on appeal.  A reasonable 
period of time should be allowed for response 
before the appeal is returned to the Board. 

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or by the 
Court for additional development or other appropriate action must 
be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 
7112 (West Supp. 2009).



______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs



{'dataset': 'bva_opinions'}