Citation Nr: 1329951 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-32 391A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a bilateral foot disorder claimed as secondary to a back disorder. 3. Entitlement to service connection for a left leg disorder claimed as secondary to a back disorder. 4. Entitlement to service connection for numbness of the feet claimed as secondary to a back disorder. 5. Entitlement to service connection for erectile dysfunction claimed as secondary to service-connected cervical spine spondylosis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran was apparently affiliated with the Army National Guard and the Individual Ready Reserve between November 1980 and November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Jackson, Mississippi, Regional Office (RO). In March 2013, the Board reopened the claim for service connection for a back disorder and remanded it and the other the claims on appeal for additional development. In November 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge, and a transcript of the proceedings is of record. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's a back disorder first manifested many years after his separation from service and is not shown to be related to an injury, disease, or event of service origin. 2. The preponderance of the evidence shows that the Veteran's bilateral foot disorder first manifested many years after his separation from service and is not shown to be related to an injury, disease, or event of service origin or to a service-connected disability, to include the cervical spine disability. 3. The preponderance of the evidence shows that the Veteran's left leg disorder first manifested many years after his separation from service and is not shown to be related to an injury, disease, or event of service origin or to a service-connected disability, to include the cervical spine disability. 4. The preponderance of the evidence shows that the Veteran's erectile dysfunction first manifested many years after his separation from service and is not shown to be related to an injury, disease, or event of service origin or to a service-connected disability, to include the cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a back disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for establishing entitlement to service connection for a bilateral foot disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 3. The criteria for establishing entitlement to service connection for a left leg disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 4. The criteria for establishing entitlement to service connection for numbness of the feet have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 5. The criteria for establishing entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished by letters sent in July 2005, December 2007, and September 2011. The Veteran was afforded a hearing before the Board, at which he presented oral testimony in support of his claims and also introduced additional documents for inclusion into the evidence already of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims, to include medical opinions and records in support of the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has any prejudice been identified in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The claimant was provided the opportunity to present pertinent evidence. VA records, Social Security Administration records, and available private treatment records have been obtained. In addition, the Veteran has been provided with VA examinations in connection with his present claims. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of recurrence of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). With respect to service in the Guard and Reserves, service connection may only be granted for disability resulting from disease or injury incurred or aggravated in line of duty while performing active duty for training, (ACDUTRA), or for disability resulting from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during inactive duty training (INACDUTRA). 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Thus, with respect to the Veteran's Army National Guard of Mississippi and the Individual Ready Reserve, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while on a specific period of ACDUTRA, or an injury incurred or aggravated while performing a specific period of INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). For certain chronic disorders, including arthritis, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). However, presumptive periods do not apply to ACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the periods of ACDUTRA is not appropriate. In addition, a disability may be service-connected if it is proximately due to or the result of a service-connected disease or injury. When aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (2006). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran asserts that he injured his low back in August 1986 during a period of active duty for training. Reportedly, he has experienced ongoing back pain since the injury, resulting in his current low back disability, diagnosed as degenerative disc disease of the lumbar spine. The Veteran also claims that he is entitled to service connection for a bilateral foot disorder, a left leg disorder, and numbness of the feet, as secondary to the back disorder. At a personal hearing in November 2011, the Veteran testified that he experienced numbness of the feet and pain that radiated from his back to his feet following the August 1986 injury. He also related seeking treatment for his left leg during service following the 1986 injury, and after service in 1986 and 1987. Back Disability Regarding his back, the records show that in the context of being seen by medical personnel for complaints of having a cold in August 1981, the Veteran mentioned he had low back pain. The back was described as within normal limits (WNL). A December 1985 examination conducted while the Veteran was affiliated with the Reserves failed to show any abnormalities of the spine on clinical evaluation. In a corresponding report of medical history the Veteran advised he did not have recurrent back pain. During a period of active duty training in August 1986, the record shows that on August 24, 1986 the Veteran was seen for complaints of neck pain for 2 days. He reported that he had been holding a fire hose when it was suddenly turned on and the back pressure threw him against a wall. On examination, there was tenderness in the neck area. X-rays were negative. He was prescribed medication and a neck collar. A few days later, on August 26, 1986, a clinical treatment report recorded complaints of thoracic and lumbosacral spine pain, with the assessment described as muscular low back pain, ("LBP muscular"). Following his release from this period of ACDUTRA, the Veteran was seen by a private physician in September 1986, where he reported pain in his upper back between the shoulder blades. No mention was made of the lumbar spine. In statements in June 2006, October 2011, and October 2012, a private physician, Dr. Jaime Castillo, noted that the Veteran suffered from chronic pain secondary to degenerative disc and joint disease of the cervical and thoracolumbar spine. In August 2006, the Veteran was seen for chronic low back pain. An assessment of osteoarthritis was noted. An August 2007 treatment note recorded a clinical assessment of lower back pain radiating to the left leg, suspect radiculopathy, and bilateral neural foraminal stenosis at L5-S1. AVA magnetic resonance imaging (MRI) of the lumbar spine, revealed degenerative disc disease with a mild herniated disc on the left side at L5-S1. In January 2008, the Veteran presented to emergency room with complaints of low back pain. He related a history of an old injury 20 years earlier. The Veteran underwent a VA neurological examination in December 2009. He reported low back pain radiating to both feet associated with a tingling sensation. The left lower extremity presented more severe symptoms. The examiner diagnosed lower back pain and indicated that extensive electrodiagnostic testing (EDX) of the lower extremities was inconclusive. A September 2011 clinical treatment note recorded a history of back injury with radiculopathy, sciatic nerve impingement on the left side. The Veteran was examined for VA purposes in connection with this claim in April 2013. The examiner reviewed the claims file and considered the Veteran's contentions, including his report of on-going back discomfort since the 1986 events regarding the fire hose. The examiner found degenerative disc disease and arthritis, with left lower extremity radiculopathy. He concluded, however, that this was unrelated to the Veteran's military service, noting there were no fractures at the time of the 1986 injury, and that current findings represented a diffuse condition, making it unlikely related to the single in-service incident of lumbar muscle strain. This opinion is accorded great probative value as it considered both the Veteran's documented history as well as his contentions. The opinion is not contradicted by any other medical opinions, and it contains an internal logic consistent with the known facts. Given that, together with the fact that the Veteran is not shown to have the competence to relate current disability to any particular cause, a basis upon which to establish service connection has not been presented and this aspect of the appeal is denied. Feet Disability With respect to the Veteran's feet, the documentary evidence shows that on an occasion when the Veteran was examined while he was affiliated with the Army Reserves, (December 1985) pes planus was observed. In January 1992, many years after the Veteran's affiliation with the military service, he was seen for a sore toe. Part of the toe nail was removed. In September 1992, a clinician noted tenderness in the mid lateral upper foot. There is no suggestion in these records of any link with military service. A podiatry note from August 2010 contained an assessment of pes cavus and peripheral neuropathy. A September 2011 clinical treatment note recorded the presence of mild pain upon palpation of the left 3rd intermetatarsal nerve, consistent with a neuroma. A MRI of the left foot revealed tenosynovitis of the flexor hallucis longus tendon, mild retrocalcaneal bursitis, and degenerative changes of the tarsometatarsal joints. None of these records suggested a connection with military service. On VA foot examination in October 2011, the Veteran reported bilateral foot pain since 1986. The examiner noted confounding variables of low back pain with radiculopathy and peripheral neuropathy, as well as the findings of bilateral pes cavus and Morton's neuroma diagnosed in August 2010 and August 2011, respectively. Following an examination of the Veteran the examiner concluded the Veteran had tenosynovitis of the flexo hallucis longus tendon; mild retrocalcaneal bursitis; small joint effusion, tibiotalar joint and degenerative change with joint effusion of the second tarsometatarsal joint and of the first metatarsophalangeal joint. There was no suggestion in the examination report that the examiner considered these findings linked to the Veteran's military service, and he observed the symptoms about which the Veteran complained were more likely arising from the Veteran's lumbar spine disability and neuropathy. In another opinion dated in March 2012, a VA physician, following a review of the Veteran's claims file, opined that the Veteran's foot disorder, to include bilateral pes cavus and Morton's neuroma, was less likely than not caused by or the result of the service-connected cervical spine disability. The examiner explained that the Veteran's cervical spine condition was consistent with symptoms affecting the upper extremities and the bilateral pes cavus was most likely a congenital condition. As this record does not show the onset of any foot disability, including numbness, during a period of active duty for training or inactive duty training; that any pes planus increased in severity during a period of service; or otherwise suggest a link between current disability and a period of service, a basis upon which to establish service connection has not been presented. Likewise, there is no competent evidence any foot disability, including numbness, is related to any currently service connected disability, and as the Veteran is not competent to validly assert such a link, a basis upon which to establish secondary service connection is not shown. Left Leg Disability Regarding the left leg, the record shows the Veteran has left leg radiculopathy, which is a consequence of his non-service connected lumbar spine disability. Since the underlying disability is not service connected, there is no basis for awarding VA benefits for the secondary condition. Accordingly, this aspect of the Veteran's appeal is denied. Erectile Dysfunction The Veteran's service treatment records do not contain any complaints, findings, or diagnoses consistent with erectile dysfunction. After service, VA treatment records after August 2006 documented treatment for erectile dysfunction with medication. Given the absence of any complaints in service, or for years thereafter, and no competent, credible evidence linking current disability to service, there is no basis for concluding the Veteran's erectile dysfunction disability was incurred in service. However, the thrust of the Veteran's claim is that he developed erectile dysfunction as secondary to the service-connected bilateral cervical spine spondylosis. Although the Veteran is competent to describe symptoms of erectile dysfunction, the determination as to the cause of erectile dysfunction is medical in nature and not capable of lay observation. As such, the Veteran's assertions alone are insufficient to establish service connection. As a lay person the Veteran has not been shown to be qualified through education, training, and expertise to offer an opinion on medical causation. Thus, his lay assertions are of little probative value when offered to establish a causal connection between his erectile dysfunction and service or a service-connected disability, to include the service-connected cervical spine disability. On the question of medical causation, medical evidence of an association or link between the current erectile dysfunction, first noted after service, and service or a service-connected disability, VA obtained medical opinions, which considered the Veteran's contentions and the service and post-service medical records. The medical opinions do not support the Veteran's assertion that his erectile dysfunction is due to a service-connected disability. The Veteran underwent a VA reproductive systems examination in October 2011. The examiner diagnosed erectile dysfunction, but offered a confusing opinion on causation. A May 2012 VA opinion clarified there is no physiologic link between the cervical spine and sexual function; and that while depression decreases libido, it is not known to cause erectile dysfunction. Further, while medications for depression can cause erectile dysfunction, it was concluded whether that was the case here could not be determined without resorting to speculation. An April 2013 VA file review report, further addressed the potential link between depression treatment medication and erectile dysfunction, suggesting that there was no such link. This was because the Veteran was no longer taking the same medication as when the erectile dysfunction first was treated. Although it was effectively acknowledged that the possibility existed that medication for depression was playing a role in the condition, allowing for that possibility in the context of the facts of this case does not rise to a level of equipoise on the question of causation or aggravation. In these circumstances, the Board concludes that the greater weight of the evidence is against the claim, and service connection is denied. ORDER Service connection for a back disorder is denied. Service connection for a bilateral foot disorder is denied. Service connection for a left leg disorder is denied. Service connection for numbness of the feet is denied. Service connection for erectile dysfunction is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs