Citation Nr: 1803206 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-23 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating higher than 60 percent for thrombophlebitis of the right leg (right leg disability). 2. Entitlement to service connection for diverticulosis. 3. Entitlement to service connection for erectile dysfunction. 4. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure. 5. Entitlement to service connection for a heart disorder, claimed as ischemic heart disease, to include as due to herbicide agent exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from July 1967 to June 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2011 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The August 2011 rating decision, in pertinent part, denied entitlement to service connection for type II diabetes mellitus, ischemic heart disease, erectile dysfunction, and diverticulosis. An August 2012 rating decision, in pertinent part, continued a 40 percent rating for a right leg disability. A May 2013 rating decision increased the rating from 40 percent to 60 percent for the Veteran's right leg disability, effective August 24, 2011. However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to service connection for diverticulosis and a rating higher than 60 percent for thrombophlebitis, right leg is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not serve on active duty in the Republic of Vietnam and is not presumed to have been exposed to herbicide agents such as Agent Orange. 2. The Veteran's currently diagnosed type II diabetes mellitus, erectile dysfunction, and heart disorder were not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish an etiological relationship between these disabilities and his active service. CONCLUSION OF LAW Type II diabetes mellitus, erectile dysfunction, and a heart disorder, were not incurred in or aggravated by service and may not be presumed related to service. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In this case, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to these claims. Pertinent medical evidence associated with the claims files consists of the available service treatment records (STRs), VA treatment records, and private treatment records. While the Board is remanding for additional VA treatment records potentially relevant to the Veteran's claims for service connection for diverticulosis and an increased rating for a right leg disability, in conjunction with a request for VA medical examinations and a VA medical opinion, neither the Veteran nor the record provides a reason to believe any outstanding records may be relevant to the claims of service connection for diabetes mellitus, a heart disorder, or erectile dysfunction. Specifically, the Veteran does not contend that there are any outstanding VA treatment records which address the etiology of the Veteran's claimed diabetes mellitus, a heart disorder, or erectile dysfunction or relate the claimed disabilities to his periods of service. Accordingly, a remand of this claim for the procurement of the treatment records pertaining to his diabetes mellitus, a heart disorder, or erectile dysfunction would serve no useful or meaningful purpose and only instead result in unnecessarily imposing additional burdens on VA with no potential benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430Vet. App. (1994). The Board notes that a VA medical examination and opinion were not obtained in this case to address the etiology of the Veteran's claimed diabetes mellitus, heart disorder, or erectile dysfunction. The Board finds that the medical evidence currently of record is sufficient to decide the claims and no VA medical examinations or opinions are warranted. 38 U.S.C. § 5103A(a). See Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 (c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-79. Here, the only evidence that any type II diabetes mellitus, erectile dysfunction, or a heart disorder are related to the Veteran's service, is the Veteran's own conclusory generalized lay statements, which are unsupported by the medical evidence or medical opinions. This finding does not undermine the Veteran's service to this country. It is simply a finding based on the current state of the law, which the Board must uphold. Although the Veteran believes that he has type II diabetes mellitus, erectile dysfunction, and a heart disorder, should be service connected, the fact remains that none of his arguments have been bolstered by the opinion of any medical professional and the post-service treatment record provides highly probative evidence against these claims, indicating problems that began many years after service. Accordingly, the Board finds that referral for a VA medical examination or opinion is not warranted. As such, the lay statements that are of record are simply insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as diabetes mellitus and organic heart disease, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, 38 U.S.C.A. § 1154 (a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board will initially discuss the Veteran's contentions that he has diabetes mellitus and a heart disorder, claimed as ischemic heart disease, related to herbicide agent exposure during service in the Philippines and Germany. The Veteran does not argue that he set foot in Vietnam so as to trigger presumptive exposure to herbicide agents. See 38 C.F.R. §§ 3.307, 3.309. Service connection for type II diabetes mellitus and heart disorder, including ischemic heart disease, is therefore not available on this basis. However, the Veteran's arguments about exposure in Germany and the Philippines are also insufficient to establish exposure to herbicide agents. In an April 2011 letter, the Veteran was asked to provide VA with the approximate dates, location, and nature of his alleged exposure. In a May 2011 response, the Veteran stated that he was exposed to herbicide agents during service in Germany from the mid to late 1970s when he used the herbicide agent to kill weeds around an aircraft parking area. He stated that the herbicide agent was stored in 55 gallon drums and that some of the liquid spilled on him. In a July 2011 memorandum, the Joint Services Records Research Coordinator (JSRRC) indicated that after a review of the Veteran's personnel records and STRs were reviewed, no evidence of the alleged herbicide agent exposure was found. In an August 2011 notice of disagreement, the Veteran continued to allege that he was exposed to herbicide agents during his service in the Philippines and Germany. He stated that he sprayed the pavement and ground with an herbicide agent on a daily basis and that he came into contact with the herbicide agent during spills of the liquid. However, based on a detailed review of the evidence in question, the Board must find that the evidence, overall, provides evidence against the Veteran's claim of herbicide agent exposure during service. Next, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the merits of the claims, the STRs are void of findings, complaints, symptoms, or any diagnoses of diabetes mellitus or a heart disorder. A March 1980 clinical note indicates a complaint of erectile dysfunction related to "premarital worries" and anxiety. Post-service, with regard to a heart disorder private treatment records include an April 1999 report which indicates an impression of chest pain. A May 2001 chart note indicates a diagnosis atherosclerotic coronary disease, by cardiac catheterization in June 1999. A May 2003 report indicates a diagnosis of a history of mild to moderate three vessel coronary disease and mild LV dysfunction diagnosed by cardiac catheterization in 1999. VA treatment records include an April 2006 note which indicates a diagnosis of coronary artery disease (CAD) since the late 1990s myocardial infarction (MI). A May 2006 discharge summary indicates a diagnosis of ischemic heart disease and a heart attack ten years ago. An August 2006 report indicates a history of CAD status post MI in the late 1990s. In an August 2011 notice of disagreement, the Veteran acknowledged that his heart disease was first diagnosed in October 2000 and stated that he had only minor chest pains during service. With regard to erectile dysfunction, VA treatment records include a May 1999 note which reflects a diagnosis of erectile dysfunction secondary to diabetes mellitus. VA treatment records include an April 2008 report which indicates a diagnosis of impotence of organic origin. In an August 2011 notice of disagreement the Veteran stated that he was treated for erectile dysfunction on three separate occasions during service. With regard to diabetes mellitus, VA treatment records include an April 1998 note which indicates a diagnosis of diabetes mellitus since 1986. An October 2005 report indicates a diagnosis of insulin dependent diabetes mellitus. An April 2006 note indicates a diagnosis of type II diabetes mellitus since the 1980s. In an April 2011 statement, the Veteran stated that he was borderline diabetic in 1984 and claimed that his symptoms began during service. Nevertheless, the Board finds that the claims must be denied. There is no medical evidence to show that the Veteran has type II diabetes mellitus, a heart disorder, or erectile dysfunction that is related to his service and, as previously addressed, there is no evidence of in-service herbicide agent exposure. Moreover, the Veteran's STRs are void of any diagnosed type II diabetes mellitus or a heart disorder and there is only one notation of erectile dysfunction. Post-service, medical records do not reflect or reference any history of diabetes mellitus until April 1998, a heart disorder until April 1999, and erectile dysfunction until May 1999. More importantly, there is no competent medical evidence to show that the Veteran has diabetes mellitus, a heart disorder, or erectile dysfunction that is related to his service, including his perceived herbicide agent exposure. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the earliest post-service medical evidence of the Veteran's disabilities is about 14 years after service. This long period without problems weighs against the claims. With regard to the Veteran's claimed diabetes mellitus and heart disorder, continuity of symptomatology has also not been established, either through the competent evidence of record or through the Veteran's statements. Finally, there is no competent medical evidence that the Veteran has type II diabetes mellitus, a heart disorder, or erectile dysfunction that is related to his service. While the medical evidence suggests that the Veteran has erectile dysfunction that is related to his type II diabetes mellitus, service connection has not been granted for type II diabetes mellitus. Therefore, type II diabetes mellitus may not serve as a predicate service-connected disability upon which to base his claim, and this claim based on "secondary" service connection fails as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no evidence to show that a service-connected disability caused or aggravated erectile dysfunction. The Board has taken the Veteran's contentions that his claimed type II diabetes, erectile dysfunction, and heart disorder were caused by or related to his service with great care and detail. The Board has also closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of type II diabetes mellitus, a heart disorder, and erectile dysfunction, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection for type II diabetes mellitus, a heart disorder, and erectile dysfunction, and there is no doubt to be otherwise resolved. As such, these claims are denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017). ORDER Service connection for erectile dysfunction, is denied. Service connection for type II diabetes mellitus, is denied. Service connection for a heart disorder, is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. With regard to the Veteran's claim for service connection for diverticulosis, STRs include a September 1979 report which indicates a complaint of rectal bleeding, cramps, and hemorrhoids, but on examination nothing abnormal was found. A May 1981 periodic examination noted no genitourinary or digestive issues. However, a January 1983 report indicates a diagnosis of genitourinary bleeding with complaint of blood in stools and similar complaints in March 1984. Post service, a May 2006 discharge summary indicates a diagnosis of lower GI bleeding likely from diverticulosis or colon polyps. Private treatment records include a March 2012 colonoscopy which revealed diverticulosis. In an August 2011 notice of disagreement, the Veteran contended that he had diverticulitis since 1979 with GI bleeding. Upon a thorough review of the evidence, it remains unclear whether the Veteran has a currently diagnosed gastrointestinal disability that is related to his service, an examination and medical opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the Veteran's claim for an increased rating for his right leg disorder, in an October 2012 statement indicated that after his compression hosiery no longer relieved the pressure in his leg, he began using a lymph press to reduce swelling. Since updated VA treatment records are being requested and the most recent VA artery and vein conditions Disability Benefits Questionnaire examination was in January 2012, the prudent and thorough course of action is to also obtain a current examination and updated findings regarding the severity of the Veteran's right leg disorder. See, Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). VAOPGCPREC 11-95 (1995). On remand, any additional VA treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA medical records related to the Veteran's right leg and gastrointestinal disabilities, including those from the Memphis VAMC, dated since July 2011. All records and/or responses received should be associated with the claims file (the Veteran himself can also submit all records he believes to be pertinent-this will also expedite the case). 2. After the foregoing has been completed, schedule the Veteran for a VA examination which addresses the nature and etiology of his gastrointestinal disability, claimed as diverticulosis. All indicated tests and studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. Diagnose any current gastrointestinal disability, including diverticulosis. Is it at least as likely as not (a 50 percent probability or greater) that any gastrointestinal disability, including diverticulosis, had its onset in or is etiologically-related to the Veteran's active duty service? The report of examination should include the complete rationale for all opinions expressed. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of his right leg disability. The claims file should be made available to the examiner. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative, and after the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. §§ 5109B, 7112 (West 2012). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs