Citation Nr: 1805402 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 11-31 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected diabetes. 2. Entitlement to service connection for a bladder condition, to include as secondary to service-connected diabetes. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes. 4. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as secondary to service-connected diabetes. 5. Entitlement to service connection for a respiratory condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2009 and October 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2014, the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The claim was previously before the Board in January 2015 when it was remanded for further development. The Board is satisfied that there has been substantial compliance with the remand directives with respect to the issues of entitlement to service connection for a bladder condition and erectile dysfunction. Consequently, the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). However, the issues of entitlement to service connection for GERD, peripheral neuropathy of the upper extremities, and a respiratory condition require more development, so the Board is again REMANDING them to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The most probative evidence of record weighs against finding that the Veteran's currently diagnosed bladder disability was caused or aggravated by his service-connected Type II diabetes mellitus, or is otherwise related or attributable to his active duty service. 2. The most probative evidence of record weighs against finding that the Veteran's erectile dysfunction was caused or aggravated by his service-connected Type II diabetes mellitus, or is otherwise related or attributable to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bladder condition have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing entitlement to service connection generally requires having probative evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a link (i.e., "nexus") between disease or injury in service and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection still may be granted if the evidence, including that pertinent to service, establishes the disability was incurred in service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Service connection also may be established on a secondary basis for disability that is proximately due to, the result of, or being aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) and (b). Establishing service connection on this alternative secondary basis requires having evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran is claiming entitlement to service connection for both a bladder condition and erectile dysfunction. He has maintained that each of these conditions are secondary to his service-connected Type II diabetes mellitus. See October 2010 Notice of Disagreement. Although the Veteran has not maintained that either his bladder condition or erectile dysfunction are directly related to active service, the Board has nonetheless considered whether the Veteran is entitled to service connection on a direct basis for either of these conditions. The Veteran's service treatment records show no evidence of any complaints, treatment or diagnoses for any of these conditions. A review of the Veteran's post-service VA and private treatment records reflect that he has a past medical history of benign prostatic hyperplasia (BPH) and erectile dysfunction. However, these medical records do not show that any examiner has ever related either condition to either his active duty service or to his service-connected diabetes. Neither the Veteran nor any of his representatives have made any assertions that either condition manifested during service or was directly related to active duty. Following a thorough review of the evidence, the Board finds that service connection for either a bladder condition or erectile dysfunction on either a direct or presumptive basis has not been met. In November 2012, the Veteran underwent VA examinations in which he was noted to have diagnoses of erectile dysfunction and BPH. The VA examiner noted at the time that the Veteran's VA claims file was reviewed. Following a January 2015 Board remand, the claims were returned to the November 2012 VA examiner for more responsive opinions on the etiology of the respective conditions. In March 2015, the VA examiner concluded it was less likely than not that the Veteran's claimed bladder condition was proximately due to or the result of his service-connected condition. In support of this conclusion, the examiner stated that the Veteran urinated about every two hours during the day because he took Hydrochlorothiazide, a diuretic. Every morning, the Veteran also took the maximum recommended dose for hypertension, which was not service-connected. The examiner further stated that this was not related to diabetes or "sciatic nerve neuritis," his only two service-connected conditions. The VA examiner also stated that the Veteran got up to urinate about once time at night because he had BPH with obstruction. The examiner stated that this was "an extremely common malady in older males. It is very rare to have a male over 60 who does not require medication for this." The VA examiner further stated that this was not related to the Veteran's service-connected disabilities. The March 2015 VA examiner also concluded that the Veteran's claimed bladder condition was not aggravated by his service-connected diabetes. In support of this conclusion, the examiner stated that the Veteran's diabetes was under good control. Therefore, his bladder condition during the day was due to his diuretic, and it was due to BPH at night. The March 2015 VA examiner also concluded it was less likely than not that the Veteran's erectile dysfunction was proximately due to or the result of his service-connected condition. He also concluded that the Veteran's erectile dysfunction was not aggravated by his service-connected diabetes. In support of these conclusions, the examiner stated that the Veteran had numerous medical conditions that can cause or contribute to erectile dysfunction. Further, in 2012 the Veteran was found to have low testosterone for which he received a testosterone patch. He has also been on medication for his non-service connected hypertension, which is known for causing erectile dysfunction. With both the Veteran's hypertension medication and his history of low testosterone, the VA examiner stated that the Veteran "would be expected to be impotent." The Board finds the March 2015 VA examiner opinions of record are entitled to great probative weight. The opinions were provided following examination of the Veteran and a review of the claims file. The examiner addressed the Veteran's assertion as to the origin of both his bladder condition and erectile dysfunction, and provided adequate rationales for the conclusions reached based on the record and the examination findings. Monzingo v. Shinseki, 26 Vet. App. 97 (2012). The evidence of record also includes a March 2017 VA contract examination in which an examiner concluded that the Veteran's erectile dysfunction was at least as likely as not due to his diabetes mellitus. However, the Board finds that this opinion warrants less probative weight than the March 2015 VA opinions of record. Notably, the March 2017 VA contract examiner provided no rationale to support his conclusion and also noted in the report that the claims file was not requested and no records were reviewed in connection with the examination. As such, the Board finds that service connection for the Veteran's bladder condition and erectile dysfunction claims are not warranted on a secondary basis. The preponderance of the evidence weighs against a finding that the Veteran's bladder condition or erectile dysfunction are either due to or aggravated by his service-connected diabetes mellitus. The Board acknowledges the Veteran's belief that his bladder condition and erectile dysfunction are each related to his diabetes. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide the etiology opinion under the facts of this case. The onset and etiology of his respective conditions are complex questions and the Veteran has not been shown to possess the medical training and expertise required to provide such an opinion. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). In sum, the Board finds that the preponderance of the evidence is against the Veteran's claims seeking service connection for a bladder condition and erectile dysfunction on either a direct basis or as secondary to service-connected diabetes mellitus. 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 respective claims, that doctrine is not applicable. See 38 U.S.C.A § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a bladder condition is denied. Entitlement to service connection for erectile dysfunction is denied. REMAND Additional development is needed before the Board can adjudicate the remaining claims. GERD The Veteran is claiming entitlement to service connection for GERD that he has maintained is secondary to his service-connected Type II diabetes mellitus. See October 2010 Notice of Disagreement. In January 2015, the Board remanded the claim in order to afford the Veteran a VA examination to determine whether the Veteran was, in fact, diagnosed with GERD and to obtain an opinion on its etiology. In March 2015, the Veteran underwent a VA compensation examination for his diabetes mellitus. The VA examiner stated that the Veteran has not been diagnosed with GERD. Further, the Veteran did not mention any symptoms of GERD and was not on any medications for GERD or heartburn. However, the section of the March 2015 VA examination report addressing the Veteran's GERD was copied verbatim from the November 2012 VA examination report the Board had previously determined was inadequate to adjudicate the GERD claim. It does not appear from a review of the record that the Veteran has ever been scheduled for a VA examination to determine whether he, in fact, suffers from GERD. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Veteran should be afforded a VA examination with opinion on this issue. Peripheral neuropathy The Veteran is claiming entitlement to service connection for peripheral neuropathy of the bilateral upper extremities that he has alternatively maintained was either directly due to Agent Orange exposure while on active duty service or as secondary to his service-connected Type II diabetes mellitus. See October 2010 Notice of Disagreement. A March 2015 VA diabetic sensory-motor peripheral neuropathy examination observed that the Veteran had a "bilateral upper and lower extremity, sensory-only, diabetic peripheral neuropathy." However, the disability benefits questionnaire does not elaborate how the VA examiner arrived at this finding. The examiner noted in the report that the Veteran's claims file was not reviewed. No responses were provided by the examiner under the section in the report addressing whether a neurologic exam was performed. And the examiner did not state whether EMG studies or any other diagnostic tests were performed. Further, the VA examiner's opinion was internally inconsistent and thus inadequate to adjudicate the claim. While she concluded that it was less likely than not that the Veteran's condition was proximately due to or the result of the Veteran's service-connected condition, the examiner then stated without elaboration that the Veteran's neuropathy in his upper and lower extremities had a "stocking glove pattern" of neurologic symptoms consistent with diabetes. In July 2016, the Veteran was afforded a second VA examination where he was diagnosed with bilateral carpal tunnel syndrome. The examiner provided negative nexus opinions concerning the diagnosed carpal tunnel syndrome but provided no discussion of the diabetic peripheral neuropathy noted in the record. In March 2017, the Veteran was afforded a VA contract examination which noted the Veteran had "an upper extremity diabetic peripheral neuropathy." However, the examiner did not elaborate in the report which upper extremity showed findings of diabetic peripheral neuropathy. Further, the examiner noted that the Veteran's claims file was not reviewed. In light of the above-noted deficiencies in the VA examination reports of record and the apparently contradictory findings as to the nature and etiology of the Veteran's claimed condition, he should be afforded a new VA examination with opinion on whether any diagnosed upper extremity peripheral neuropathy is directly related to active duty service or secondary to diabetes mellitus. Respiratory disorder The Veteran was originally diagnosed during service with pneumonia and a pleuritic pain. He was hospitalized from May 19, 1966 to June 2, 1966. He complained of breathing and chest pain at that time. The Veteran claims that his breathing problems continued from that time; however, it has changed in severity. The VA treatment records contain various diagnoses since November 2003, including pneumonia, pleural thickening, hypoxia, and shortness of breath. However, those records do not include any opinion on etiology. Following the January 2015 Board remand, the Veteran was afforded a VA respiratory conditions examination in March 2015 in which the Veteran was diagnosed with chronic obstructive pulmonary disease (COPD) and restrictive lung disease. However, the VA examiner did not provide any opinion on whether either of these diagnosed conditions were related to the Veteran's active duty service. Rather, the VA examiner provided a conclusory opinion that the condition claimed was less likely than not proximately due to or the result of the Veteran's service-connected condition. Further, the VA examiner stated that there were no sequelae of his past pneumonia in the military, and that the Veteran's lung volumes were restricted by his obesity and "the eventration of his hemidiaphragm in 2 places." The examiner provided no commentary on whether any other diagnosed respiratory condition noted in the Veteran's records were related to active duty service, and the examination report specifically noted that the Veteran's claims file was not reviewed. In light of these deficiencies, the Veteran must be provided with a new VA examination with opinions on this issue. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran dated since August 2017. If no medical records are available, this should be noted in the Veteran's claims file. 2. Then schedule the Veteran for an appropriate VA examination to ascertain the current nature and likely etiology of any diagnosed GERD. The claims folder is to be furnished to the examiner for review in its entirety. Any indicated testing should be conducted. Following a review of the relevant evidence and examination of the Veteran, the examiner must address the following questions: (a) Is the Veteran presently diagnosed with GERD and has he been diagnosed with GERD at any point during the period on appeal since July 12, 2010? (b) Is it at least as likely as not (50 percent or higher degree of probability) that any diagnosed GERD was caused by his service-connected Type II diabetes mellitus? (c) Is it at least as likely as not that any diagnosed GERD was aggravated by his service-connected Type II diabetes mellitus? Detailed rationale is requested for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then schedule the Veteran for an appropriate VA examination to ascertain the current nature and likely etiology of any diagnosed peripheral neuropathy of the upper extremities. The claims folder is to be furnished to the examiner for review in its entirety. Any indicated testing should be conducted. Following a review of the relevant evidence and examination of the Veteran, the examiner must address the following questions: (a) Has the Veteran been diagnosed with peripheral neuropathy affecting either upper extremity at any point during the period on appeal since July 12, 2010? (b) Is it at least as likely as not (50 percent or higher degree of probability) that any diagnosed peripheral neuropathy of either upper extremity had its onset in or was otherwise related to his active duty military service? (c) Is it at least as likely as not (50 percent or higher degree of probability) that any diagnosed peripheral neuropathy of either upper extremity was caused by his service-connected Type II diabetes mellitus? (d) Is it at least as likely as not (50 percent or higher degree of probability) that any diagnosed peripheral neuropathy of either upper extremity was aggravated by his service-connected Type II diabetes mellitus? Detailed rationale is requested for all opinions provided. The VA examiner is asked to specifically address VA examination reports dated in March 2015, July 2016 and March 2017 which show diagnoses of diabetic peripheral neuropathy and bilateral carpal tunnel syndrome. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Then schedule the Veteran for an appropriate VA examination to ascertain the current nature and likely etiology of any diagnosed respiratory condition. The claims folder is to be furnished to the examiner for review in its entirety. Any indicated testing should be conducted. Following a review of the relevant evidence and examination of the Veteran, the examiner must address the following questions: (a) Please identify all diagnoses related to the Veteran's claimed respiratory condition. (b) Is it at least as likely as not (50 percent or higher degree of probability) that any diagnosed respiratory condition had its onset in or was otherwise related to his active duty military service? Detailed rationale is requested for all opinions provided. The VA examiner is asked to specifically address VA treatment records showing the Veteran experienced pneumonia, pleural thickening, hypoxia, and shortness of breath, as well as a March 2015 VA examination which noted diagnoses of COPD and restrictive lung disease. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. After conducting any other development deemed necessary, readjudicate the Veteran's claims. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters 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 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs