Citation Nr: 1803158 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 11-04 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a neurologic disability, bilateral lower extremity. 2. Entitlement to service connection for erectile dysfunction. 3. Entitlement to service connection for bladder dysfunction. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1978 and from January to March 1991 with additional Reserve service. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran failed to report for a hearing before the Board in November 2017. He has not shown good cause for failing to report nor has he requested that the hearing be rescheduled. As such, the request for a Board hearing is considered withdrawn. See 38 C.F.R. § 20.704(e) (2017). The issue of entitlement to service connection for a cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A neurologic disability of the lower extremities has not been demonstrated since the claim was filed. 2. Erectile dysfunction, first demonstrated long after service, did not have clinical onset during or as a result of service and is not proximately related to service-connected spondylolysis. 3. Bladder dysfunction, first demonstrated long after service, did not have clinical onset during or as a result of service and is not proximately related to service-connected spondylolysis. 4. Hypertension did not have clinical onset during a period of active duty service or active duty for training (ACDUTRA). CONCLUSION OF LAW 1. The criteria for service connection for a neurologic disability of the lower extremities are not met. 38 U.S.C. §§ 1110, 1112 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for service connection for bladder dysfunction are not met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 REASONS AND BASES FOR FINDINGS AND CONCLUSIONs VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in April 2008, prior to the initial adjudication of the issues on appeal. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's service treatment records and all identified and authorized treatment records. While the Veteran reported treatment with various providers in his February 2008 application for service connection benefits, he did not provide the information and authorization necessary for VA to obtain such records, as requested in the April 2008 VCAA letter. In the December 2017 Appellant's Brief, the Veteran, through his representative, argued that the Veteran was provided VA examinations for the claimed conditions in September 2008 and that the examinations were inadequate and therefor VA has not met its duty to assist the Veteran in obtaining evidence to substantiate his claims. The Veteran failed to appear for a VA examination scheduled in November 2016. The examination request documents that the examination was to be held with QTC Medical Services and was an examination for hypertension, erectile dysfunction, bladder dysfunction, and bilateral lower extremity neurological disability. The Veteran has not indicated that he did not receive the notice for the November 2016 examination, nor has he advanced any other arguments with regard to why he did not attend the examinations. When a claimant fails to report for a scheduled examination in connection with an original service connection claim, without good cause, the claim will be considered on the basis of the evidence of record. 38 C.F.R. § 3.655 (2017). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty training (ACDUTRA) or injury incurred or aggravated by inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1110, 1131 (2012). Under 38 U.S.C. § 101(22) (a) and (c) ACDUTRA means, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training and full-time duty as members of the Army National Guard or Air National Guard of any State. Id. Service connection is provided for a disability, which is proximately due to, or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2017). The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Neurologic Disability, Bilateral Lower Extremity The Veteran contends that he incurred a neurologic disability of the lower extremities, specifically due to his service-connected spondylolysis (herein lumbar spine disability). Indeed, service treatment records document complaints or suggestions of sciatica related to spondylolysis. However, since the claim was filed in February 2008, there is no medical evidence of any neurologic disability of the lower extremities. Upon VA examination in September 2008, the VA examiner noted the Veteran's complaints regarding lower extremity symptoms such as pain and burning. However, for both lower extremities, straight leg testing was negative, sensory functioning was within normal limits, reflexes of the knees and ankles were normal, and motor function was within normal limits. The VA examiner noted the in-service notation of sciatica, but stated that there was no evidence of sciatica or nerve involvement upon examination and that the symptoms seem to have resolved. There is no other competent and credible evidence demonstrating a current neurologic disability of the lower extremities. To the extent the Veteran has reported certain symptoms and referred to them as a specific diagnosis, the Board notes that he is not competent to diagnose such a disability. To diagnose a specific disability and opine as to the etiology of such symptoms requires medical expertise when the question is a complex one, as is so in this case. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show that the Veteran has such expertise. The Board notes that the Veteran failed to report for both a VA examination and a Board hearing. Evidence from each may have helped the Veteran's claim and cannot be considered. Based on the forgoing, the Board finds that service connection for a neurologic disability of the lower extremities is not warranted. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Erectile Dysfunction The Veteran claims that he incurred erectile dysfunction (herein ED) as a result of his service-connected lumbar spine disability. The Board finds that service connection for ED is not warranted. The Veteran has only claimed a proximate connection to his service-connected lumbar spine disability. He reported during a September 2008 VA examination that his ED symptoms began about eight years prior. Indeed, the Board notes that service treatment records are negative for any complaints or diagnoses of ED and the first evidence of ED symptoms is the Veteran's 2008 claim for service connection benefits. The 2008 VA examiner stated that there is no evidence of any organic disorders, spinal cord involvement, or cauda equine syndrome and that it is extremely unlikely that the lumbosacral spine condition could otherwise cause ED. As such, the examiner stated that the Veteran's ED is not service-related and has nothing to do with the lumbar spine disability. There is no other competent and credible evidence demonstrating that the reported ED is proximately related to service. To the extent the Veteran has asserted such a connection between ED and his service-connected disability, the Board notes that he is not competent to provide such an opinion. To diagnose a specific disability and opine as to the etiology of such symptoms requires medical expertise, which he has not been shown to possess. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not submitted competent medical evidence that his current ED is proximately related to his lumbar spine disability. In fact, the only competent medical evidence of record is the opinion of the VA examiner, which is against the claim. The Board notes that the Veteran failed to report for both a VA examination and a Board hearing. Evidence from each may have helped the Veteran's claim. Based on the forgoing, the Board finds that the evidence is against a finding of a proximate connection between claimed erectile dysfunction and service-connected spondylolysis. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Bladder Dysfunction The Veteran claims that he incurred a bladder dysfunction disability as a result of his service-connected lumbar spine disability. The Board finds that service connection is not warranted. The Veteran has only claimed a proximate connection to his service-connected lumbar spine disability. He reported during a September 2008 VA examination that his bladder dysfunction symptoms began about four years prior. Indeed, the Board notes that service treatment records are negative for any complaints or diagnoses of any bladder dysfunction disability and the first evidence of such symptoms or disability is the Veteran's 2008 claim for service connection benefits. The 2008 VA examiner noted the Veteran's reports regarding his bladder dysfunction. However, the examiner failed to provide an etiology opinion regarding the claimed bladder dysfunction. The Board notes that the Veteran failed to report for a new VA examination in November 2016 and also failed to report for a Board hearing scheduled for November 2017. Evidence from each may have helped the Veteran's claim. However, the claim must now be adjudicated based on the evidence of record. The Board finds that there is no competent and credible evidence demonstrating that the reported bladder dysfunction is proximately related to a service-connected disability. To the extent the Veteran has asserted such a connection between bladder dysfunction and his service-connected disability, the Board notes that he is not competent to provide such an opinion. To diagnose a specific disability and opine as to the etiology of such symptoms requires medical expertise, which he has not been shown to possess. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Based on the forgoing, the Board finds that the evidence is against a finding of a proximate connection between claimed bladder dysfunction and service-connected spondylolysis. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Hypertension The Veteran claims that he incurred hypertension during service. The Board finds that service connection is not warranted. The Board notes that hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters or greater, and isolated systolic hypertension is defined as systolic blood pressure that is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. 38 C.F.R. § 4.104, Diagnostic Code 7101 (Note 1) (2017). Generally, to support a diagnosis of hypertension, the blood pressure readings must be taken two or more times on at least three different days. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service treatment records document that the Veteran's blood pressure upon examination in March 1977 was 120/70. Upon separation examination in July 1978, his blood pressure was 132/92. The examiner noted "rule out high blood pressure." However, there is no mention of hypertension thereafter in the record until an August 1982 report of medical history, in which the Veteran denied high blood pressure. An examination in March 1987 demonstrated blood pressure of 138/80 and a March 1990 examination revealed a blood pressure reading of 130/80. The first indication that the Veteran had a diagnosis of hypertension is in a June 1990 report of medical history in which it was noted that the Veteran had been on medication for hypertension for eight months. A March 1991 report of medical history indicated the use of medication for hypertension for one year and a December 1991 treatment record indicated that the Veteran had had hypertension for two years. Based on the forgoing, the Board concludes that the Veteran's hypertension had onset in between his periods of active duty service, sometime after July 1978 and before January 1991. While there was some question of whether hypertension was present upon separation in July 1978, subsequent examinations revealed blood pressure to be within normal limits and the Veteran himself denied having high blood pressure more than four years post-discharge from active duty service. It wasn't until around 1989 to 1990, prior to the Veteran's next period of service, that he was found to have, and be taking medication for, hypertension. While an enlistment examination from the Veteran's January to March 1991 service is not of record, it is clear that the Veteran had and was receiving for hypertension at the start of that service. The claims file does not demonstrate, nor does the Veteran contend, that he was serving during a period of active duty or ACDUTRA at the time he was diagnosed with and began treatment for hypertension, which, again, was around 1989 to 1990 according to his reports to examiners in 1990 and 1991. The Board finds that there is no competent and credible evidence demonstrating that hypertension had onset during active duty or ACDUTRA service or that hypertension was aggravated by military service. To the extent that such an assertion can be implied in any of the Veteran's statements, the Board notes that he is not competent to provide such an opinion. To diagnose a specific disability and opine as to the etiology of such symptoms requires medical expertise when the questions are complex ones - as these are. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not demonstrated such expertise. The evidence of record is clear as to the onset of hypertension outside of a period of active duty or ACDUTRA; as such, a VA examination is not warranted. Nevertheless, the Board notes that the Veteran failed to report for such an examination in November 2016 and that he failed to report for a Board hearing in November 2017. . Evidence from each may have helped the Veteran's claim. However, the claim must now be adjudicated based on the evidence of record. Based on the forgoing, the Board finds that the evidence is against a finding of a service connection for hypertension. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a neurologic disability, bilateral lower extremity, is denied. Service connection for erectile dysfunction is denied. Service connection for bladder dysfunction is denied. Service connection for hypertension is denied. REMAND It appears that the AOJ sought a medical opinion in 2008 with regard to whether the Veteran's cervical spine disability was related to his active service or to his service connected spondylosis of the lumbar spine. The September 2008 QTC opinion does not sufficiently address this question. The examinations ordered in 2016, to which the Veteran did not attend, do not appear to include an examination with regard to his cervical spine. Hence, a remand is necessary to afford the Veteran an examination of his cervical spine and obtain a medical opinion. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran is scheduled for a compensation and pension examination with regard to his cervical spine disability. The examiner must review the claims file in conjunction with the examination. The examiner is asked to complete the following: (a) Identify all disabilities of the cervical spine that the Veteran has had at any time since he filed his claim in 2008 to the present. (b) Provide a medical opinion as to the following: (i) Whether it is at least as likely as not (a 50 percent or greater probability) that a current cervical spine disability had onset during or was directly caused by the Veteran's active service or was caused or chronically worsened by a period of Reserve service. The examiner must support any opinion with a rationale. (ii) Whether it is at least as likely as not (a 50 percent or greater probability) that a current cervical spine disability was caused by the Veteran's service-connected spondylolysis of the thoracolumbar spine. The examiner must support any opinion with a rationale. (iii) Whether it is at least as likely as not (a 50 percent or greater probability) that a current cervical spine disability has been chronically worsened by the Veteran's service-connected spondylolysis of the thoracolumbar spine. The examiner must support any opinion with a rationale. 2. Then readjudicate the claim of entitlement to service connection for a cervical spine disability. If the benefit sought remains denied, furnish to the Veteran and his representative a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs