Citation Nr: 1753479 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 07-32 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for arthritis, to include generalized arthritis and/or chronic pain syndrome/myofascial syndrome as secondary to a service-connected disability. 2. Entitlement to service connection for a penis deformity with erectile dysfunction, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1963 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board, among other things, remanded the issues remaining on appeal for additional development in November 2015 and April 2017. The April 2017 remand directives, in essence, clarified that the service connection claim for arthritis included generalized arthritis and/or chronic pain syndrome/myofascial syndrome. The issues listed on the title page have been revised to reflect the matters presently for appellate review. The Veteran's motion to advance the appeal on the Board's docket, pursuant to 38 C.F.R. § 20.900(c) (2016), is granted. 38 U.S.C.A. § 7107(a)(2) (West 2014). The record shows he is over age 75 and meets the criteria for docket advancement. FINDINGS OF FACT 1. Arthritis, to include generalized arthritis and/or chronic pain syndrome/myofascial syndrome, was not demonstrated during service; arthritis was not manifest within one year of active service discharge; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service or to a service-connected disability. 2. A penis deformity with erectile dysfunction was not demonstrated during service; a related organic disease of the nervous system was not manifest within one year of active service discharge; and, the preponderance of the evidence fails to establish that a present related disability is etiologically related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis, to include generalized arthritis and/or chronic pain syndrome/myofascial syndrome, have not been met. 38 U.S.C.A. §§ 1110, 1131, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a penis deformity with erectile dysfunction have not been met. 38 U.S.C.A. §§ 1110, 1131, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, in an October 2017 brief, asserted that a June 2017 VA medical opinion as to his arthritis claim was inadequate because the examination was performed by a nurse practitioner. Specifically, it was noted that the examiner is not shown to have any particular expertise, experience, training, or competence in commenting on chronic pain disorders. Upon review of the complete record, the Board finds the examination and opinion are adequate and in substantial compliance with the prior remand directives. No affirmative evidence has been provided demonstrating that either the nurse practitioner involved in the June 2017 examination or the provided etiology opinion itself are inadequate or not competent. VA examiners are entitled to a general presumption of competence in the absence of evidence to the contrary and VA is not required to establish medical competent in the absence of such evidence. See Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (a VA medical professional is presumed competent in the absence of affirmative evidence to the contrary); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (discussing the general presumption of competence afforded to VA medical professionals). Reference is made to a September 2016 private medical statement and an April 2017 VA medical opinion indicating that the Veteran had been exposed to Agent Orange during his service aboard the USS KLONDIKE (AR 22) from August 1965 to November 1967. No additional information was provided indicating how this matter had been established. The Board notes that the available evidence does not include statements from the Veteran indicating actual service in or visitation to the Republic of Vietnam and he did not respond to a February 2017 VA letter requesting additional information. To the contrary, in a June 2011 VA mental disorder examination, the Veteran reported he served in the Philippines and in Japan but provided no information indicating any service in Vietnam. Service records are negative for any indication of service in Vietnam and VA reports (updated on November 1, 2017) of ships associated with service in Vietnam and exposure to herbicide agents note only that the USS KLONDIKE (AR 22) had anchored in Vung Tau Harbor in April 1969, well after the Veteran left service. In the absence of sufficient specific information as to herbicide exposure or service in Vietnam, the Board finds no further VA action as to these matter is required. Further VA assistance was to this matter would be futile. Neither the Veteran nor his representative has raised any other issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Claims 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). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). When aggravation of a nonservice-connected condition is proximately due to or a result of a service-connected disability a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Certain chronic diseases, including arthritis and organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307. Certain disorders may be presumed service connected, including type II diabetes mellitus, if manifest to a degree of 10 percent or more for a herbicide exposed Veteran, and early-onset peripheral neuropathy, if manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2017). Service in the Republic of Vietnam includes service on the landmass or on the inland waterways, but for service based upon visitation on the landmass a Veteran must actually set foot on land within the borders of Vietnam in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (VA's distinguishing "blue water" naval service from "brown water" service in Vietnam is a reasonable regulatory interpretation); VAOPGCPREC 27-97 (1997), 62 Fed. Reg. 63604 (1997). VA has been instructed to reevaluate its definition of inland waterways, particularly as applied to Da Nang Harbor. The Veteran is not shown, however, to have served aboard any ship that entered a Vietnam harbor or inland waterway such that VA's reevaluation of the criteria to constitute an inland waterway would be applicable in this case. See Gray v. McDonald, 27 Vet. App. 313 (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Arthritis and organic diseases of the nervous system are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2017). The Veteran contends, in essence, that he has arthritis, to include generalized arthritis and/or chronic pain syndrome/myofascial syndrome, and a penis deformity with erectile dysfunction as a result of active service or a service-connected disability. He contends, in essence, that these disorders developed as a result of his service-connected posttraumatic stress disorder (PTSD) and, alternatively, that his erectile dysfunction developed as a result of his exposure to herbicides aboard ship in the waters near the Republic of Vietnam. He has also provided statements asserting that he was exposed to toxic chemicals in his duties as an electrician mate aboard the USS KLONDIKE. He provided copies of medical article abstracts in support of his claims of a relationship between chronic pain and his service-connected PTSD. Service treatment records are negative for complaint, diagnosis, or treatment related to arthritis, generalized arthritis, chronic pain syndrome, myofascial syndrome, penis deformity, or erectile dysfunction. A June 1966 report noted treatment for urethral discharge and an August 1966 report noted a diagnosis of nonspecific urethritis. Service records show the Veteran served aboard the USS KLONDIKE from August 1965 to November 1967. VA records show service connection is established for central blepharospasm (100 percent), chronic bronchitis (30 percent), PTSD (30 percent), pseudofolliculitis barbae scars (30 percent), bilateral hearing loss (10 percent), tinnitus (10 percent), and dermatitis (0 percent). Service connection for type II diabetes mellitus was denied in a June 2017 rating decision. There is no indication of any disagreement with that determination. An October 2009 VA medical statement from a physical therapist noted the Veteran had asked for a medical statement regarding the relationship between his PTSD and his physical pain. The physical therapist noted that "[a]s PTSD is an ongoing repetitive experience, e.g. nightmares, it is reasonable to expect that there will be an accompanying chronic musculoskeletal response to that horror." A March 2012 VA medical statement from M.S.C., M.D., noted the Veteran began receiving treatment for erectile dysfunction in 2008 and that in the following year he received a diagnosis of type II diabetes mellitus. It was the physician's opinion that his erectile dysfunction was a result of his hypertension related to type II diabetes mellitus and PTSD, and perhaps the natural aging process. In June 2012, the Veteran provided copies of medical article abstracts in support of his claims. The article "Chronic posttraumatic stress disorder and chronic pain in Vietnam combat veterans" noted that PTSD veterans who reported chronic pain also reported significantly higher somatization as measured by psychological testing. The article "The relationship between symptoms of post-traumatic stress disorder and pain, affective disturbance and disability among patients with accident and non-accident related pain" described recent studies as reporting a high prevalence of symptoms of PTSD among individuals with chronic pain. The article "The relation of post-traumatic stress symptoms to depression and pain in patients with accident-related chronic pain," J Pain, 2008 Jul;9(7):588-96. Epub 2008 March 17., noted symptoms of PTSD were a common comorbidity in patients with accident-related chronic pain and depression. A March 2015 VA medical opinion from a staff physician found it was less likely that the Veteran's erectile dysfunction was a result of or was permanently aggravated beyond normal progress his service-connected PTSD or medication taken for a service-connected disability. It was noted that VA records revealed he had taken antidepressant medication which can cause erectile dysfunction, but that the records showed he was not currently taking any medication for his PTSD and that any dysfunction due to these medication would be transient and would resolve with discontinued use. The examiner also noted that he had multiple other risk factors for erectile dysfunction including antihypertensive and morphine medication use as treatment for nonservice-connected disabilities. VA treatment records include a May 2016 Agent Orange Registry Examination report noted, in essence, that herbicide exposure was reported as a result of service aboard the USS KLONDIKE from August 1965 to November 1967. A diagnosis of type II diabetes mellitus was provided. A June 2016 VA medical opinion from a nurse practitioner (N.J.) noted there was no evidence in the Veteran's service treatment records of complaint or treatment for erectile dysfunction. The examiner then stated that "[t]herefore, it is at least as likely as not that . . . erectile dysfunction had its onset during[,] or is otherwise related to, the Veteran's period of active service." A September 2016 private medical opinion from A.W., M.D., noted the Veteran had received treatment including for type II diabetes mellitus and erectile dysfunction. It was noted that the Veteran had received confirmation that he was exposed to Agent Orange during service in the Vietnam era and was a "Blue Water Veteran" having been exposed to Agent Orange during service aboard the USS KLONDIKE from August 1965 to November 1967. It was the physician's opinion to a reasonable degree of certainty that the Veteran's exposure to Agent Orange had a causal relationship to his type II diabetes mellitus and erectile dysfunction, which was a consequence of his diabetes. In an April 2017 VA medical opinion N.J. stated that it was at least as likely as not that the Veteran's erectile dysfunction was incurred in or caused by an in-service injury, event, or illness. As rationale it was first noted that there was no evidence based research to support or show a link between erectile dysfunction and urethral discharge, gonorrhea, or nonspecific urethritis, and that the Veteran's military service treatment records did not show any complaints or treatments for erectile dysfunction. The examiner stated, however, that he had served on the USS KLONDIKE (AR-22) from August 1965 to November 1967 "which was present in Vietnam and exposed to Agent Orange." It was further noted that type II diabetes mellitus was a presumptive illness related to Agent Orange exposure and that erectile dysfunction can occur in almost any disease that affects or damages the nervous, vascular, or hormonal systems. The examiner also noted that various diseases may produce changes in the smooth muscle tissue of the penis or influence mood and behavior. The Veteran, it was noted, had a history of diabetes mellitus and hypertension, disorders that affect the vascular system and can cause sexual dysfunction. Therefore, it was at least as likely as not that his erectile dysfunction had its onset during or was otherwise related to his period of active service from December 1963 to November 1967 and on the USS KLONDIKE from August 1965 to November 1967. No comments were provided indicating how it was determined that the USS KLONDIKE was present in Vietnam and exposed to Agent Orange from August 1965 to November 1967. A June 2017 VA examination conducted by a nurse practitioner (S.L.D.) provided a diagnosis of myofascial pain syndrome with a date of diagnosis in 2009. Related findings, signs, and symptoms included widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbance, paresthesias, headache, depression, and anxiety. In an associated medical opinion the examiner found that it was less likely than not that the claimed disorder was proximately due to or the result of the Veteran's service-connected condition. As rationale it was noted that PTSD and other mental health conditions are not risk factors for myofascial pain syndrome or fibromyalgia. Possible risk factors were identified as including family history/genetics, age, sex, and rheumatoid arthritis. It was noted that the Veteran was provided diagnoses of pain syndrome in 2009 and of PTSD in 2016, and that PTSD and myofascial pain syndrome were comorbid conditions for this particular individual without clinical evidence of a cause and effect relationship. It was further not the have been aggravated beyond its natural progression by his service-connected PTSD as there were no reports of worsening of symptoms over the past two years. Based on the foregoing, the Board finds no evidence that arthritis, to include generalized arthritis and/or chronic pain syndrome/myofascial syndrome, or a penis deformity with erectile dysfunction were manifest during active service. There is also no evidence that arthritis or an erectile dysfunction as a result of an organic disease of the nervous system were manifested within a year of service discharge. Symptoms or treatment attributable to arthritis and erectile dysfunction are not shown to have developed until many years after the Veteran's discharge from active service. The preponderance of the evidence also fails to establish that the present disabilities are etiologically related to service or to a service-connected disability, to include as a result of medication taken for service-connected disabilities. The overall evidence of record is found to be persuasive as to these matters. The opinions of the March 2015 and June 2017 VA examiners are considered to be of greater probative weight based upon consistency with the overall evidence of record. The examiners are shown to have reviewed the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board notes that the April 2017 opinion of N.J., a VA nurse practitioner, is credible to the extent she found there was no evidence based research to support or show a link between erectile dysfunction and urethral discharge, gonorrhea, or nonspecific urethritis. The opinion is shown to have been based upon an accurate recitation of established facts as to this matter. Her June 2016 opinion, however, is internally inconsistent and is found to be not credible to establish etiology for the Veteran's erectile dysfunction. The positive nexus opinion appears to be a typographical error. In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan v. Nicholson, 451 F.3d at 1337 (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The April 2017 opinion from N.J. and the September 2016 opinion of Dr. A.W. relating the Veteran's erectile dysfunction to Agent Orange are also found to be not credible. Although these reports found the Veteran had been exposed to Agent Orange during his service aboard the USS KLONDIKE (AR 22) August 1965 to November 1967, no additional information was provided indicating how this matter had been established. The Board finds the opinions based upon that determination that the Veteran was exposed to Agent Orange aboard the USS KLONDIKE are not credible due to inconsistency with the other evidence of record and, significantly, VA documents based upon service reports indicating the ship had not been shown to have visited Vietnam nor to be known as associated with herbicide exposure during this period. See Monzingo, 26 Vet. App. at 107 ("If [an] opinion is based on an inaccurate factual premise, then it is correct to discount it entirely." (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) ("[A]n adequate medical report must rest on correct facts and reasoned medical judgment so as [to] inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports."); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."). The Board further notes that "the Court has expressly declined to adopt a 'treating physician rule' which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician." Winsett v. West, 11 Vet. App. 420, 424-25 (1998) (citing Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Williams v. Brown, 4 Vet. App. 270, 273 (1993) ("Nowhere is it provided in law or regulation that opinions by the examining psychiatrists are inherently more persuasive than that of other competent mental health professionals."). The Court has held, however, that "[a] private medical opinion may not be discounted solely because the opining physician did not review the claims file." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, "the Board may not prefer a VA medical opinion over a private medical opinion solely because the VA examiner reviewed the claims file." Id. The level of training, education, and experience of the person conducting the examination is a factor that, if the Board affords more or less weight to the report because of that reason, must be thoroughly explained in its decision. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)). The October 2009 VA physical therapist's statement noted that "[a]s PTSD is an ongoing repetitive experience, e.g. nightmares, it is reasonable to expect that there will be an accompanying chronic musculoskeletal response to that horror." No additional rationale was provided for this opinion. Nor was any information provided as to how it was determined that the Veteran's repetitive experience had resulted in a chronic musculoskeletal response. It is also significant that no comments were provided indicating any knowledge or awareness of the Veteran's medical history and nonservice-connected disabilities. Similarly, the Board notes that the March 2012 VA medical statement from Dr. M.S.C., finding that the Veteran's erectile dysfunction was a result of his hypertension related to type II diabetes mellitus and PTSD, and perhaps the natural aging process, was provided without any specific comments as to how his PTSD was implicated in the development of his erectile dysfunction. No medical or scientific studies were cited in support of either of these statements. As such, these opinions are found to be of little probative. The Board has also reviewed the medical article abstracts submitted by the Veteran and finds the June 2017 VA examiner's opinion is consistent with the information provided in these abstracts. In fact, it was specifically acknowledged that PTSD and myofascial pain syndrome were comorbid conditions for the Veteran, but that there was no clinical evidence of a cause and effect relationship. The examiner is shown to have reviewed the pertinent evidence of record and to have noted that PTSD and other mental health conditions were not risk factors for myofascial pain syndrome or fibromyalgia. Additionally, the Veteran was found to have possible risk factors for such disorders identified as including family history/genetics, age, sex, and rheumatoid arthritis. Medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin, 11 Vet. App. 509. In this case, the Board finds the abstracts submitted by the Veteran provide general information, primarily indicating no more than comorbidity between chronic pain and PTSD, without a specific connection to the details of the Veteran's claimed disability. Consideration has also been given to the Veteran's personal assertion that he has arthritis, to include generalized arthritis and/or chronic pain syndrome/myofascial syndrome, and a penis deformity with erectile dysfunction related to active service and his service-connected disabilities. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue, including arthritis and erectile dysfunction, are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. In conclusion, the Board finds that service connection for arthritis, to include generalized arthritis and/or chronic pain syndrome/myofascial syndrome, and a penis deformity with erectile dysfunction is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against these claims. ORDER Entitlement to service connection for arthritis is denied. Entitlement to service connection for a penis deformity with erectile dysfunction is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs