Citation Nr: 1754101 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 14-06 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to a left ankle disability. 2. Entitlement to service connection for a bilateral hip condition, to include as secondary to a left ankle disability. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to a back or hip disability. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel INTRODUCTION The Veteran had active military service from July 1968 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran's back disability did not manifest in service, is not otherwise related to service, and is not caused or aggravated by a service-connected disability. 2. The Veteran's bilateral hip disability did not manifest in service, is not otherwise related to service, and is not caused or aggravated by a service-connected disability. 3. The Veteran's erectile dysfunction did not manifest in service, is not otherwise related to service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability, to include as secondary to a left ankle disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a bilateral hip disability, to include as secondary to a left ankle disability, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for erectile dysfunction, to include as secondary to back and hip disabilities, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, adjudication of his claim at this time is warranted. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. All service treatment records, VA treatment records, and private medical treatment records identified by the Veteran have been obtained. Furthermore, the Veteran testified at a Board hearing and a transcript of the hearing is of record. While a VA medical opinion was not provided in relation to the Veteran's claims decided herein, there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, VA's obligation under 38 U.S.C. § 5103A (d) (2012) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the only evidence that the Veteran's disabilities are related to active service are his own statements linking them to service. While the record does contain a private medical opinion from Dr. Price dated October 2010 relating his back disability to an in-service injury, the Board finds that there is no record of an in-service injury. As such, that medical opinion was not based in fact and is afforded no probative value. Accordingly, the Board finds that there is no medical evidence to support any alleged relationship. Therefore, the Veteran's statements are insufficient to trigger VA's duty to provide an examination with an opinion. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). 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). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. 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. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran asserts that his back disability and hip disability and are related to his ankle disability, and that his erectile dysfunction is related to his back and hip disabilities. The Veteran was denied service connection for an ankle condition in an August 1973 rating decision, for which he never perfected an appeal. The rating decision currently on appeal included a denial of reopening the Veteran's left ankle claim, for which the Veteran did not appeal. Further, as discussed below, service connection for the Veteran's back disability is denied. As such, the Veteran cannot have a secondary service connection for any of his current claims, as he does not have the asserted service-connected disabilities to support his secondary service connection contentions. Lacking any service-connected disabilities, direct service connection must be established for each disability on appeal. Back and Hip Disabilities As stated above, the Veteran's back and hip disabilities cannot be secondarily service-connected to his ankle disability, as his ankle disability is not service-connected. Regarding direct service connection for these disabilities, the Veteran has a current undisputed diagnosis of degenerative disc disease (arthritis) of the back and arthritis of the hip. As such, these claims turns on the other two elements of service connection: in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disabilities and the disease or injury incurred or aggravated during service. The Veteran's service treatment records do not show treatment for an in-service injury or reports or treatment for a back or hip disability. The Veteran testified that he fell down stairs in service, but there are no reports of such an incident in his service treatment records. The Veteran went before a medical Board, but made no mention of any fall. Likewise, the Veteran filed a claim for service connection for his ankle several years after service, but made no mention of any back trouble. In filing this claim, the Veteran provided several statements about service aggravating his ankle, but made no mention of any fall. Had the Veteran fallen and injured himself in the manner he now contends, the Board believes that there would have been some mention of either the fall, or back problems, in the service treatment records, the medical board report, the medical statement approximately six years after service or the Veteran's claims assertions shortly after service. The Board believes finds that if such a fall did occur, the Veteran was not injured as a result of it, as he did not seek medical treatment. Moreover, the Veteran never indicated in his post-service medical records that he was injured in service. He did report in a December 2011 private treatment record that he had hip and low back pain that had been present ever since he started Lipitor. Further, in his post-service medical records, he consistently reported an injury to his left ankle which occurred in childhood. Following service, in 1973, Dr. Proffit wrote a letter about the Veteran's ankle problems, but made no mention of any back problems or in-service injury. The Board finds that the Veteran would have mentioned to his treatment providers if he had in fact experienced a significant injury in service, being that he reported other medical histories, but he did not mention an in-service event. Therefore, the second element of a direct service connection, an in-service occurrence, is not met. Lacking an in-service occurrence to link to the Veteran's current back and hip disabilities, no discussion of a medical nexus is needed. However, the Board notes that this element is also not met as there is no credible medical evidence linking the Veteran's back or hip disabilities to an in-service event. As discussed above, the October 2010 private treatment nexus opinion submitted by Dr. Price stated that the Veteran's back disability was related to an injury in service, but the Board has not found that the Veteran sustained an injury in service. As such, the medical opinion is found to be based on an inaccurate factual premise, and there for the Board does not afford any probative value to this opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). None of the Veteran's other medical records provide an opinion linking his back or hip disabilities to his service. The Board notes that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of back and hip disabilities like arthritis, the issue of causation of such medical conditions is medical determinations outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's back and hip disabilities are related to his service, the Board has not uncovered any credible medical evidence which supports such a connection and the Veteran lacks the medical expertise to competently determine the etiology of his back and hip disabilities. Furthermore, the Veteran's service treatment records do not contain any complaints, treatment, or diagnoses of back or hip arthritis. At his August 1968 Medical Board assessment before separating from service, arthritis of the back or hips were not noted among the health problems the Veteran was found to have. The record contains no evidence establishing the Veteran's back or hip arthritic disabilities were diagnosed in active service, within one year of active service, or are due to an event or injury during his active service. Moreover, the Veteran's medical treatment records after his separation show that he was not diagnosed with arthritis of the back and hips until 2012, more than forty years after leaving active service after less than two months of service. As such, service connection on a direct basis or presumptive basis is also not warranted. Erectile Dysfunction As stated above, the Veteran's erectile dysfunction cannot be secondarily service-connected to his back and hip disabilities, as back and hip disabilities are not service-connected. Regarding a direct service connection for this disability, the Veteran testified that he has erectile dysfunction, which is a condition readily observable by the senses and of which he is competent to report. As such, this claim turns on the other two elements of service connection: in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service Service treatment records do not show any diagnosis of erectile dysfunction and the Veteran testified that his erectile dysfunction began approximately 25 years ago, which would have been at least 15 years after service. Clearly there is no in-service event or injury to which the Veteran's erectile dysfunction can be linked. Furthermore, the Veteran has no service-connected disabilities to allow for a secondary service connection for his erectile dysfunction. Accordingly, service connection for erectile dysfunction is denied. ORDER Service connection for a back disability, to include as secondary to a left ankle disability, is denied. Service connection for a bilateral hip disability, to include as secondary to a left ankle disability, is denied. Service connection for erectile dysfunction, to include as secondary to a back or hip disability, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs