Veteranclaims’s Blog

January 19, 2022

Single Judge Application; Miller v. Wilkie, 32 Vet.App. 249, 260 (2020) (“[W]hen the record includes the veteran’s lay reports, which the Board did not find to be not credible, we may ordinarily conclude that it made an implicit credibility determination.”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6955
KEVIN L. HARLAN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Kevin L. Harlan, through counsel appeals a June 9,
2020, Board of Veterans’ Appeals (Board) decision that denied entitlement to benefits for a voiding
dysfunction, claimed as chronic urinary tract infections. Record (R.) at 4-16. The Board remanded
the matters of entitlement to benefits for a lumbar spine disability, finger disabilities of the right
and left hands, and diabetes mellitus, type 2, and entitlement to a total disability rating based on
individual unemployability due to service-connected disabilities. The remanded matters are not
before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order) (a Board
remand “does not represent a final decision over which this Court has jurisdiction”); Hampton v.
Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board may not be reviewed by the
Court). This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the
Board’s decision denying benefits for a voiding dysfunction and remand the matter for further
proceedings consistent with this decision.
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I. BACKGROUND
The appellant served on active duty in the U.S. Navy from June 1970 to December 1978
and from September 1982 to October 1993. R. at 4007, 4015-20. He applied for benefits for several
disabilities in October 2005, R. at 3943-44, and subsequently submitted statements in support of
his claim, asserting that he was exposed to toxic chemicals in service, including benzene and
toluene compounds, and that his exposure to these chemicals caused him to suffer from frequent
urination and a urinary tract disorder. R. at 3775-77, 3877. He also asserted that, in September
2001, a VA medical clinic in Mobile, Alabama, first discovered his frequent urination and
prescribed oxybutynin, R. at 3787-88, and that his “urinary tract disorder . . . began during the
period around 1988 while [he] was stationed aboard the USS Monongahela,” R. at 3465; see R. at
3465-66. He explained that his condition caused a great deal of embarrassment, which in part
caused him not to seek medical treatment. R. at 3465.
A VA regional office (RO) denied the claim for a urinary tract disease, claimed as due to
exposure to benzene and toluene, in May 2008. R. at 3340-49. The appellant disagreed with the
denial, and the Board accepted jurisdiction over the matter in April 2016. R. at 1241-42, 3308-11;
see R. at 1254-58, 3245-50, 3251-74. The Board then remanded the claim for a VA examination
to determine whether the appellant’s urinary tract disorder is related to in-service exposure to
chemical or hazardous materials, “or any credibly claimed symptomatology in[]service.” R. at
1250; see R. at 1239-53.
In January 2020, a VA examiner diagnosed frequency of micturition and urgency of
urination and noted that the appellant has a voiding dysfunction. R. at 203-04; see R. at 145-47,
202-11. The examiner noted an onset of 1988 and that, since onset, the appellant “has been on
oxybutynin.” R. at 203. The examiner opined that the appellant’s urinary tract conditions were less
likely than not incurred in or caused by service and provided the following rationale:
Per evidence in the [claims] file[], [the appellant] has not been diagnosed with a
urinary tract disorder such [as] infections or cancers. Although[] he does take
medication [(]oxybutinin for urinary frequency)[,] he does not have any further
diagnosis indicating any reproductive or urinary tract disorders. Research and
evidence below does not indicate either Toluene or Benzene exposure causes
increase in urinary frequency or urgency.
There is lack of knowledge as far as what types of bladder disorders occur from
Benzene exposure noted on p[age] 1697. (This is likely referring to bladder cancer
than overactive bladder as the literature discusses bladder cancer in the following
paragraph and neoplasms throughout the literature). Urinary tract disorders
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presented only mentions infections in which are silent in the [claims] file[] for this
[appellant].
According to the following articles and research[,] . . . urinary tract conditions such
as urinary frequency and urgency are not conditions noted to be due to Benzene
and Toluene. Therefore, the [appellant’s] urinary tract disease is less likely than not
incurred in or caused by the INJURY during service, assuming the INJURY during
service is the aforementioned exposure.
R. at 146 (citations omitted).
The Board issued the decision on appeal in June 2020, denying benefits for a voiding
dysfunction, claimed as chronic urinary tract infections. R. at 4-16. This appeal followed.
II. ANALYSIS
A. Parties’ Arguments
The appellant argues that the Board provided inadequate reasons or bases for discounting
his September 2007 statement that his urinary tract disorder began in service. Appellant’s Brief
(Br.) at 9-11. He contends that he is competent to report an onset in 1988 and that the Board erred
in assigning his statement no probative value based on the lack of contemporaneous evidence. Id.
He further asserts that the Board relied on an inadequate VA medical opinion and that the Board
should have remanded his claim for benefits for a voiding dysfunction as inextricably intertwined
with his claim for diabetes, which the Board remanded for further development. Id. at 12-14.
The Secretary argues that the Board plausibly determined that there was insufficient
evidence to show that the appellant’s in-service symptoms were the same manifestations of his
current voiding dysfunction. Secretary’s Br. at 6. He asserts that the Board did not reject as
incredible the appellant’s report that his frequent urination began in 1988. Id. at 7. Rather, the
Secretary contends that the Board correctly determined that the appellant does not have the medical
expertise to opine that his symptoms in 1988 were the same manifestations of his current voiding
dysfunction. Id. at 6-9. The Secretary further maintains that the 2020 VA medical opinion is
adequate, that the Board permissibly afforded more weight to the 2020 VA examiner’s opinion that
the appellant’s urinary frequency and urgency is not related to benzene and toluene exposure, and
that the Court should reject the appellant’s unsupported medical opinion that his voiding
dysfunction is related to diabetes. Id. at 6-12.
In his reply brief, the appellant argues in part that, if the Board found him credible, then “it
follows the Board could accept the lay evidence of in-service urinary frequency as establishing a
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causal connection to the current urinary frequency disability without obtaining a medical opinion
on the question.” Reply Br. at 1. He then reiterates his contention that the 2020 VA medical opinion
is not supported by a sufficient rationale, and further asserts that he is entitled to an opinion
assessing whether his “competent and credible in-service descriptions of his condition are causally
related to his current condition, which may or may not involve exposure to benzene or other
harmful chemicals.” Id. at 2.
B. Law
Establishing that a disability is service connected for purposes of entitlement to VA
disability compensation generally requires medical or, in certain circumstances, lay evidence of
(1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and
(3) a nexus between the claimed in-service injury or disease and the current disability. See
38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2021). It is the
Board’s responsibility, as factfinder, to determine the credibility and weight to be given to the
evidence. See Washington v. Nicholson, 19 Vet.App. 362, 369 (2005); Owens v. Brown,
7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and
weight of evidence and that the Court may overturn the Board’s decision only if it is clearly
erroneous). When analyzing lay evidence, if the Board determines that lay evidence is competent
and credible, it must weigh the evidence against other evidence of record, providing an appropriate
statement of reasons or bases for its conclusions. See Buchanan v. Nicholson, 451 F.3d 1331,
1334-37 (Fed. Cir. 2006).
Additionally, “once the Secretary undertakes the effort to provide an examination [or
opinion,] . . . he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007).
A medical examination or opinion is adequate “where it is based upon consideration of the
veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007),
“describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed
disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407
(1994)), and “sufficiently inform[s] the Board of a medical expert’s judgment on a medical
question and the essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105
(2012) (per curiam). The law does not impose any reasons-or-bases requirements on medical
5
examiners, and the adequacy of medical reports must be based upon a reading of the report as a
whole. Id. at 105-06.
Whether the record establishes entitlement to service connection and whether a medical
opinion is adequate are findings of fact, which the Court reviews under the “clearly erroneous”
standard. See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam); Russo v. Brown,
9 Vet.App. 46, 50 (1996). A finding of fact is clearly erroneous when the Court, after reviewing
the entire evidence, “is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990). As with any material issue of fact or law, the Board must provide a
statement of the reasons or bases for its determination “adequate to enable a claimant to understand
the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday v.
Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
C. Board Decision
In the decision on appeal, the Board found that the appellant “has a current diagnosis of
frequency of micturition and urgency of urination,” and that he “was likely exposed to chemicals[,]
including benzene and toluene[,] while serving as a machinist’s mate in the Navy.” R. at 7. As for
nexus, the Board noted that the appellant’s “service treatment records are silent as to any
complaints of or treatment related to any urinary tract disorder” and that his 1993 pre-retirement
examination report “does not note a voiding dysfunction or any conditions related to a voiding
dysfunction.” Id.1 The Board summarized the January 2020 VA examiner’s negative nexus opinion
and rationale, including that the examiner “opined that the research and evidence does not indicate
that toluene or benzene exposure causes increase in urinary frequency or urgency,” and found the
opinion to be probative. R. at 8.
The Board also acknowledged the appellant’s September 2007 statement that his urinary
tract disorder began in 1988 and found that, although he is “competent to report having experienced
symptoms of urinary urgency since service, he is not competent to provide a diagnosis in this case
or determine that these symptoms were manifestations of a urinary tract disorder.” Id. The Board
then noted that the appellant’s service treatment records do not include any notation to support his
1 The Court notes that the appellant’s service treatment records and pre-retirement examination report were
not included in the record of proceedings (ROP). Because the parties do not dispute the Board’s finding, the Court
concludes that it may decide the appeal without seeking an amended ROP.
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contention that symptoms began in service and that there was a 10-year gap between service and
VA treatment; the Board thus assigned no probative value to the appellant’s statements. Id.
Finally, the Board considered the appellant’s contention that his urinary tract disorder is
related to in-service exposure to chemicals, but the Board found that he is not competent to provide
a nexus opinion on the issue. R. at 9. In that regard, the Board noted that the appellant submitted
an abstract from a medical article to support his opinion, but the Board found that “the article lacks
any probative value as it is not specific to the facts of the [appellant’s] claim,” and afforded more
probative weight to the January 2020 VA examiner’s opinion, which the Board found was based
on the research cited and a review of the appellant’s claims file. Id. The Board concluded that the
preponderance of the evidence was against a finding that his voiding dysfunction began during
service or is related to in-service chemical exposure. R. at 10.
D. Discussion
As an initial matter, the Court concludes that it cannot address whether the Board erred
when it relied on the 2020 VA examiner’s opinion to deny the appellant’s claim because the Board
made no findings regarding the adequacy of the opinion. See R. at 8; see also D’Aries, 22 Vet.App.
at 104. In that regard, the Board found the examiner’s opinion probative in part because it was
based on “an accurate medical history and provides an explanation that contains clear conclusions
and supporting data,” but the Board’s analysis does not address the adequacy of the examiner’s
rationale or why the rationale sufficiently informed its decision that the appellant’s voiding
dysfunction is not related to in-service exposure to benzene and toluene. R. at 8. Although the
parties make competing arguments as to whether the 2020 VA examiner’s opinion was adequate,
see Appellant’s Br. at 11-13; Secretary’s Br. at 10-11, the Court’s review is frustrated by the Board’s
inadequate statement of reasons or bases. See Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at
56-57. Consequently, remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998)
(“[W]here the Board . . . failed to provide an adequate statement of reasons or bases for its
determinations, . . . a remand is the appropriate remedy.”).
Next, although the Court has determined that remand is warranted, the Court will address
the appellant’s arguments concerning the Board’s treatment of his statement that his symptoms
began in 1988 during service. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding that,
to provide guidance to the Board, the Court may address other arguments after determining that
remand is warranted). In that regard, both parties agree that the Board found the appellant
7
competent to report that he experienced symptoms of urinary urgency since service, and that the
Board did not question the credibility of those statements. R. at 8. Therefore, the Court may
conclude that the Board implicitly found the appellant credible. See Miller v. Wilkie, 32 Vet.App. 249, 260 (2020) (“[W]hen the record includes the veteran’s lay reports, which the Board did not find to be not credible, we may ordinarily conclude that it made an implicit credibility determination.”); see also Secretary’s Br. at 7 (“[T]he Board recounted [the a]ppellant’s credible
lay reports and found that he was competent to report that his frequent urination began in 1988.”);
Reply Br. at 2. Notwithstanding the appellant’s competent and credible reports, the Board
discounted his statements, finding that the question whether the appellant’s in-service symptoms
were manifestations of his current disorder is medically complex. R. at 8. Although the Secretary
argues that the Board is permitted to determine that lay testimony is insufficient to show a medical
nexus, the Board denied the appellant’s claim based on this alternative theory of entitlement
without addressing whether the appellant’s competent and credible reports required VA to obtain
a medical opinion that addresses whether his in-service symptoms are related to his current
condition. See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006);
Secretary’s Br. at 7; Reply Br. at 2. But see R. at 1250 (April 2016 remand order requesting an
examination to determine in part whether any of the claimed disabilities are related to an incident
in service, including “any credibly claimed symptomatology in[] service”). Accordingly, the Board
must also address this matter on remand.
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant. See Quirin, 22 Vet.App. at 395; Best v. Principi, 15 Vet.App. 18, 20 (2001)
(per curiam order). On remand, the appellant is free to submit additional evidence and argument
on the remanded matter, including the specific arguments raised here on appeal, and the Board is
required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App.
529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The
Court reminds the Board that “[a] remand is meant to entail a critical examination of the
justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board
must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
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III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s June 9,
2020, decision denying benefits for a voiding dysfunction is VACATED and the matter is
REMANDED for further proceedings consistent with this decision.
DATED: December 30, 2021
Copies to:
Thomas E. Sullivan, Esq.
VA General Counsel (027)

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