Citation Nr: 1737501 Decision Date: 09/07/17 Archive Date: 09/19/17 DOCKET NO. 13-14 572 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a sleep disorder, to include as secondary to the service-connected low back disability. 2. Entitlement to service connection for a sitting and standing disability, to include as secondary to the service-connected low back disability. 3. Entitlement to service connection for cataracts, to include as secondary to the service-connected low back disability. 4. Entitlement to service connection for a gastrointestinal (GI) disability, to include as secondary to the service-connected low back disability. 5. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to the service-connected low back disability. 6. Entitlement to a disability rating in excess of 40 percent for spondylolisthesis of L5 and S1 with chronic lumbosacral strain. 7. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity (LLE) radiculopathy. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 9. Entitlement to special monthly compensation (SMC) based on aid and attendance or housebound status. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1972 to November 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, and April 2011, September 2012, and January 2014 rating decisions of the VA RO in Buffalo, New York. The case is currently under the jurisdiction of the Buffalo RO. The issues of service connection for a GI disability and ED, increased ratings for the lumbar spine and LLE radiculopathy, TDIU, and SMC are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The evidence does not demonstrate that the Veteran has or had a chronic disability manifested by sleep problems, other than his service-connected low back disability, at any time during the appeal period. 2. The evidence does not demonstrate that the Veteran has or had a chronic disability manifested by difficulty sitting or standing, other than his service-connected low back disability, at any time during the appeal period. 3. The evidence does not demonstrate that cataracts were shown in service or that the Veteran's diagnosed cataracts are the result of a disease or injury during his active duty service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by chronic sleep problems have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2016). 2. The criteria for service connection for a disability manifested by chronic difficulty sitting or standing have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2016). 3. The criteria for service connection for cataracts have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all of the evidence of record, with an emphasis on the medical evidence pertinent to the claim on appeal. Although all the evidence of record has been thoroughly reviewed, the Board is not required to discuss each piece of evidence in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis herein will focus on what the evidence shows, or fails to show, with respect to the Veteran's claims. I. Duties to Notify and Assist With regard to the claims decided herein, the Board finds that the VA's duty to notify and assist has been met and the Veteran and his representative have not argued otherwise. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir 2011). The AOJ sent an adequate notice letter to the Veteran in April 2013. All available service treatment records and post-service medical records have been obtained. The Veteran has not identified any outstanding and relevant records. The Veteran was not afforded a VA examination to address any of these claims. With regard to the sleep and sitting/standing claims, there is no competent evidence of a current disability or persistent or recurrent symptoms of a disability, nor does the Veteran claim such. Rather, he argues that he should be compensated for difficulty that he experiences sitting, standing, and sleeping due to his service-connected low back disability, not that he has separately diagnosed sleep or sitting/standing diagnoses. With regard to his cataracts claim, the evidence is not insufficient to decide the claim. The Veteran has submitted a September 2013 negative nexus opinion from his private optometrist that is sufficient to decide the claim. VA examinations are not required for these claims. See Waters v. Shinseki 601 F.3d 1274, 1278 (Fed. Cir. 2010). II. Merits of the Claims A. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2016). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2016); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Sleep Problems and Sitting/Standing Difficulty A review of the medical evidence of record fails to establish a diagnosed disability manifested by sleep problems or difficulty sitting or standing at any time during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran has not identified a disability either. Rather, he argues that he experiences symptoms of difficulty sleeping, sitting, and standing due to his service-connected low back disability. He does not assert that he has been specifically diagnosed with any specific disability manifested by sleep problems or sitting or standing difficulty or underlying pathology. Significantly, the Veteran himself noted in his January 2014 notice of disagreement (NOD) that he did not wish to appeal the denial of his sleep claim because he understood that his sleep problems were already considered in his low back disability evaluation and did not constitute a separate disability for which service connection could be granted. The Board has thoroughly reviewed the Veteran's private and VA treatment records and finds that, while there are many complaints of his experience symptoms including trouble sleeping, sitting, and standing, due to his low back disability, there are no separate diagnoses related to these complaints. There was some suggestion of possible sleep apnea in the treatment records, however this has not been diagnosed, nor is the Veteran claiming service connection for sleep apnea symptoms. Rather, he has specifically indicated that the sleep problems that he sought service connection for were frequent waking due to back pain. There is simply no medical evidence showing objective findings of any underlying disorder or pathology accounting for the Veteran's sleep, sitting, and standing problems, other than his low back disability, nor does the Veteran contend that he has been diagnosed with any such disorder or pathology. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of sleep and orthopedic symptoms in the context of a separately diagnosed lumbar spine disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report his symptoms, he is not competent to attribute those complaints to a particular diagnosis or any diagnosis at all. See Jandreau v. Nicholson, 492 F.3s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (2015) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). His assertions are therefore not competent evidence of a diagnosis of a disability manifested by sleep problems or difficulty sitting or standing. The Veteran's opinion would also be significantly outweighed by the lack of diagnoses from VA and private physicians, who clearly hold the level of medical expertise to address the nature and etiology of the Veteran's complaints. Accordingly, the first element of Shedden/Caluza is not met for the sleep and sitting/standing claims. Service connection cannot be granted for a disability manifested by sleep problems or difficulty sitting or standing. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2016); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Cataracts A September 2013 letter from the Veteran's private optometrist indicates that he has a cataract in his right eye. The first elements of the Shedden and Wallin analysis have been met. With regard to direct service connection, a review of the Veteran's service treatment records does not reveal that he was treated for or diagnosed with any eye-related disorders, including cataracts, during his military service. There are no service treatment records referencing such and his separation examination was normal for his eyes. Moreover, the Veteran has not indicated that he has had cataracts since service, but only since his more recent use of prednisone for his service-connected low back disability. There is simply no evidence, lay or medical, of inservice cataracts. The second element of Shedden is not met and the direct service connection claim fails on that basis. With regard to the secondary service connection, the Board notes that the Veteran is service connected for a low back disability. The second element of Wallin is met. However, despite the current diagnosis and low back service-connected disability, there is no evidence of a medical nexus to support a grant of service connection on a secondary basis for cataracts. Specifically, the Veteran submitted a September 2013 letter from his private optometrist, as noted above. She indicated that the Veteran had used prednisone for his low back disability and that prednisone can cause cataracts and increased eye pressure. However, she concluded that prednisone did not cause his right eye cataract because it is not the type of cataract that is caused by prednisone. She explained that prednisone caused cataracts with increased eye pressure. As the Veteran had normal eye pressure with his cataract, she was unable to link it to his prednisone use. In light of the negative nexus opinion and lack of positive opinion to contradict the negative evidence, there is simply no basis for a grant of service connection on either a direct or secondary basis for cataracts. Further, the Veteran himself has indicated that he agrees that his cataract was not caused by prednisone use. See NOD, January 2014. Finally, the Board is aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. Cataracts are not one of the listed chronic diseases and there is no medical or lay evidence, to include the Veteran's own statements, that indicates that the Veteran has experienced cataracts since service. The nexus element of Shedden/Caluza may not be met via continuity of symptomatology. Accordingly, the Board finds that the claim of entitlement to service connection for cataracts must be denied under any theory of entitlement. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a disability manifested by sleep problems is denied. Entitlement to service connection for a disability manifested by difficulty sitting and standing is denied. Entitlement to service connection for cataracts is denied. REMAND Although the Board sincerely regrets the additional delay, the Veteran's remaining claims must be remanded before the Board is able to make a determination on the merits. Specifically, as further explained below, additional development is required. With regard to the GI disorder and ED claims, the Veteran was afforded VA examinations and opinions in April 2012 and December 2013 respectively. The April 2012 examiner concluded that the Veteran's alternating diarrhea and constipation were related to his eating chocolate-covered raisins. However, the examiner failed to provide a thorough rationale for this conclusion or to address the treatment records showing the Veteran's complaints of constipation and reflux when on pain medication with no apparent relationship to his chocolate-covered raisin consumption. The December 2013 VA examiner also provided a negative opinion, indicating that the Veteran did not have cauda equina syndrome on his most recent (2010) MRI. However, the neurological causes of ED listed by the examiner included spinal cord or back injury generally. There is no indication that ED can only be caused by a back injury in the presence of cauda equina syndrome. In light of the examiners' failure to provide full explanations in light of all of the evidence, the Board finds that the VA examinations and opinions of record are inadequate to decide the claims. The GI and ED claims must be remanded for new VA opinions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). With regard to the lumbar spine and LLE radiculopathy claims, the Veteran has claimed that these disabilities have worsened since his last VA examination in April 2012. See Veteran statement, March 2014. Specifically, he claims that he now has additional symptoms that he did not report at his last VA examination. See internet research submitted by the Veteran in January 2014. In light of this suggestion of a possible worsening, the low back and LLE radiculopathy claims must be remanded for a new VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). With regard to the TDIU and SMC claims, these claims are based on the functional effects of his service-connected low back disability and associated radiculopathy. As such, the further development and readjudication of the low back and LLE radiculopathy claims may affect the resolution of the TDIU and SMC claims. The issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The AOJ must first develop and readjudicate the increased rating claims before readjudicating the TDIU and SMC claims. Additionally, 38 U.S.C.A. § 1114(r)(2) requires that the need for aid and attendance must be determined by a VA physician or, in areas where no such physician is available, by a physician carrying out such function under contract or fee arrangement. The April 2012 examiner is a nurse practitioner. Therefore, a new examination and opinion on the Veteran's need for aid and assistance should be provided by a VA or contracted physician. As the case is being remanded, the Board will take the opportunity to obtain any outstanding VA treatment records. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records from the VA Western New York Healthcare System and any other VA facility identified by the Veteran. All attempts to obtain these records should be documented in the claims file. 2. Thereafter, the Veteran's claim file should be provided to an appropriate examiner other than the April 2012 examiner to determine the nature and etiology of his GI disorder(s) and ED. The examiner must review the entire claims file and the opinion must reflect that such a review was conducted. The Veteran may be recalled for examination if deemed necessary. With regard to the GI claim, the examiner must identify all GI-related disorders that the Veteran has been diagnosed with during the appeals period (November 2009 to the present), including any that may have resolved. For each such diagnosis, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that such a diagnosis was caused or aggravated (made worse) by his service-connected low back disability. If the examiner finds that any GI-related diagnosis has been aggravated by his low back disability, he or she should attempt to quantify the degree of aggravation beyond the baseline level of disability. IN PROVIDING THIS OPINION, THE EXAMINER MUST CONSIDER THE VETERAN'S REPORTS OF EXPERIENCING CONSTIPATION AND GERD WHEN TAKING PAIN MEDICATIONS FOR HIS LOW BACK DISABILITY AND THE DOCUMENTED GI SIDE EFFECTS OF OXYCODONE. With regard to the ED claim, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's ED was caused or aggravated (made worse) by his service-connected low back disability. If the examiner finds that the Veteran's ED has been aggravated by his low back disability, he or she should attempt to quantify the degree of aggravation beyond the baseline level of disability. IN PROVIDING THIS OPINION, THE EXAMINER MUST CONSIDER THE VETERAN'S REPORTS OF EXPERIENCING ED AS HIS LOW BACK DISABILITY WORSENED. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Thereafter, the Veteran should be scheduled for a VA examination with VA or contract physician in order to determine the current nature and severity of his service-connected low back disability and associated LLE radiculopathy. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected low back disability, including any associated neurological symptoms. All appropriate testing, including range of motion and neurological testing, should be performed. The examiner should determine whether the Veteran is unable to maintain gainful employment as a result of his service-connected low back disability and LLE radiculopathy. In providing this opinion, the examiner must address the October 2010 note from the Veteran's VA physician indicating that he is unemployable in any capacity. The examiner should also opine as to the effect of the Veteran's service-connected disabilities on his ability to perform activities of daily living. Specifically, the examiner should answer: * Is the Veteran unable to dress or undress himself and keep himself ordinarily clean and presentable? * Does the Veteran require frequent adjustment of any special prosthetic or orthopedic appliance that cannot be done without aid? * Is the Veteran unable to feed himself through loss of coordination of upper extremities or though extreme weakness, or unable to attend to the wants of nature? * Does the Veteran have incapacity, physical or mental, that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment? * Does he have any disability that requires he remain in bed? A rationale for all requested opinions shall be provided. If the examiners cannot provide an opinion without resorting to mere speculation, they shall provide a complete explanation stating why this is so. In so doing, the examiners shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the above actions, the Veteran's service-connection and increased-rating claims should be readjudicated. Thereafter, the TDIU and SMC claims should be readjudicated. If any of the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs