Citation Nr: 18141195 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-09 613 DATE: October 9, 2018 ORDER Service connection for a back disorder is denied. Service connection for a bilateral lower extremity disorder is denied. Service connection for bilateral upper extremity arthritis is denied. Service connection for an eye disorder is denied. Service connection for tinnitus is denied. Service connection for hypertension is denied. Service connection for hypercholesterolemia is denied. Service connection for erectile dysfunction is denied. Service connection for headaches is denied. Service connection for an acquired psychiatric disorder, to include depression and trouble sleeping, is denied. FINDINGS OF FACT 1. The Veteran’s back disorder was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 2. The Veteran’s bilateral lower extremity disorder was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 3. The Veteran’s bilateral upper extremity arthritis was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 4. The Veteran’s eye disorder was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 5. The Veteran’s tinnitus was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 6. The Veteran’s hypertension was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 7. The Veteran’s hypercholesterolemia is a laboratory finding for which service connection may not be granted. 8. The Veteran’s erectile dysfunction was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 9. The Veteran’s headaches were not shown in service or for many years thereafter, and is not otherwise related to active duty service. 10. The Veteran does not have a current diagnosis of a psychiatric disorder for VA compensation purposes during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a bilateral lower extremity disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for bilateral upper extremity arthritis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for an eye disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 6. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 7. The criteria for entitlement to service connection for hypercholesterolemia have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 8. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 9. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 10. The criteria for entitlement to service connection for a psychiatric disorder, to include depression and trouble sleeping, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to July 1983. The Board observes that in January 2013, the Regional Office (RO) denied the Veteran’s claim of service connection for a back disorder. In April 2013, the Veteran submitted a new claim of service connection for a back disorder. While this was not a notice of disagreement, per se, the Veteran also submitted a statement from a colleague, that the Board finds was new and material to the claim. As such, a new rating decision in response to this evidence was warranted. See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Since the next rating decision was not issued until December 2014, which was the rating ultimately appealed, it is actually the January 2013 rating decision that is on appeal for this particular issue. Further, while the RO determined that the Veteran’s claim was a claim to reopen his previously denied claim of service connection for a back disorder, the Board notes that the February 2016 statement of the case nevertheless actually addressed and adjudicated whether or not the Veteran’s back disorder was related to service, despite finding that new and material evidence was not submitted to reopen the claim. Therefore, as the RO considered entitlement to service connection for a back disorder on its merits, the Board finds that a remand is unnecessary for re-adjudication of this issue. The Board acknowledges that the Veteran is claiming entitlement to service connection for a psychiatric disorder. During the course of this appeal, the Veteran has characterized his psychiatric symptoms as depression and trouble sleeping. However, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, as reflected herein, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board acknowledges the Veteran’s request for a VA examination for all of the disorders on appeal. However, to the extent the Veteran contends that VA examinations should be provided, the Board finds that given the absence of in-service evidence of chronic manifestations of these disorders, and no evidence of these disorders until many years after service, a VA examination is not warranted for these disorders. 38 C.F.R. § 4.2; cf. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr, 21 Vet. App. 303 (2007). Importantly, the Board observes that while the Veteran had a single instance of left hip pain during service, such an acute finding does not automatically trigger VA’s duty to provide an examination. In any event, the Board finds that a hip condition is a separate disorder apart from the Veteran’s bilateral lower extremity claim – especially in light of the fact that the Veteran has not alleged hip pain as part of the disorder on appeal. Cf. Clemons, 23 Vet. App. 1. In any event the available records and medical evidence is sufficient to make an adequate determination as to these claims. In arriving at this conclusion, the Board also acknowledges the Veteran’s assertions that he sustained numerous injuries during service which caused these disorders. Nevertheless, for the reasons explained below, the Veteran’s assertions are not supported, and in some cases contradicted, by the evidence of record. Further, the Board notes that the Veteran has also submitted a statement from his friend regarding the current severity of his disorders. However, given that his friend does not have any first-hand accounts of his injuries during service (or shortly thereafter), the Board finds these statements to be of little probative value for the purposes of determining whether an examination is warranted. Therefore, the Board finds that the statements from the Veteran and friend are not sufficient to warrant a VA examination(s). Additionally, the Board also acknowledges the Veteran’s contentions that his tinnitus VA examination was inadequate because the examiner relied on the fact that the Veteran’s separation examination was missing and that there was no continued treatment for his disorder after service. Nevertheless, the Board finds that the examiner reviewed the Veteran’s past medical history, recorded his current complaints and history, conducted appropriate evaluations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the VA examination report is adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Lastly, the Board notes that the RO received new medical treatment records that were not previously considered in its last SOC. However, a review of these records reveals that the vast majority of them are irrelevant, and that to the extent there are relevant records, these records were previously on file, are redundant and cumulative of the records already on file, and/or the Board is granting the full benefit sought on appeal. As a result, there is no prejudice to the Veteran for the Board to consider these records in the first instance and a remand for the RO’s initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). Service Connection 1. Entitlement to service connection for a back disorder 2. Entitlement to service connection for a bilateral lower extremity disorder 3. Entitlement to service connection for bilateral upper extremity arthritis 4. Entitlement to service connection for an eye disorder 5. Entitlement to service connection for tinnitus 6. Entitlement to service connection for hypertension 7. Entitlement to service connection for hypercholesterolemia 8. Entitlement to service connection for erectile dysfunction 9. Entitlement to service connection for headaches 10. Entitlement to service connection for an acquired psychiatric disorder, to include depression and trouble sleeping The Veteran generally asserts that his back, bilateral upper extremity arthritis, eye disorder, tinnitus, hypertension, hypercholesterolemia, erectile dysfunction, headaches, bilateral lower extremity disorder, and psychiatric disorder are related to his service. As a preliminary matter, the Board concludes that the Veteran does not have a current diagnosis of a psychiatric disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Specifically, the Board finds that after a thorough reading of the evidence of record, including the VA treatment records from May 2012, May 2014, and May 2017, the evidence does not reflect a current diagnosis related to a psychiatric disorder at any time during the period on appeal. The Board acknowledges the Veteran’s assertions and belief that he has a psychiatric disorder, however, he is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, to the extent the Veteran is competent to report sleep trouble and feeling depressed, the medical evidence is not sufficient to demonstrate a diagnosed disability for VA purposes. As such, the preponderance of the evidence is against a finding that the Veteran has a psychiatric disorder at any point during the time on appeal. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Additionally, the Board observes that the Veteran has been diagnosed with several eye disorders, to include refractive error. However, to the extent the Veteran is seeking service connection for a refractive error, the Board notes that congenital or developmental defects, such as a refractive error are not considered “diseases or injuries within the meaning of applicable legislation” and, hence, do not constitute disability for VA compensation purposes. See 38 C.F.R. § 3.303 (c), 4.9. Similarly, hypercholesterolemia is a medical term for high cholesterol, and is defined as "excessive cholesterol in the blood." See Dorland's Illustrated Medical Dictionary 887 (32nd ed. 2012). Elevated cholesterol is a laboratory finding and not a disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20440, 20445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule). As such, without evidence of something more, service connection is not warranted for this disorder. With respect to an eye disorder (not including refractive error), back disorder, bilateral upper extremity arthritis, tinnitus, hypertension, erectile dysfunction, headaches, and a bilateral lower extremity disorder, the Board concludes that while the Veteran has a current diagnosis of these disorders, the preponderance of the evidence weighs against finding that these disorders began during service or are otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. Specifically, aside from an acute report of bilateral hip pain without any evidence of an injury, the service treatment records are silent for any complaints, symptoms, or a diagnosis relating to these disorders on appeal. Next, while the Veteran’s post-service treatment records include statements to his medical providers regarding symptoms of these disorders since service, the objective medical evidence nevertheless does not demonstrate any symptoms of a back and/or bilateral lower extremity disorder until approximately 1997. The medical evidence does not report symptoms of upper extremity arthritis, and hypertension until 2001. Further, the objective evidence does not reflect symptoms of a headache disorder until 2003, erectile dysfunction until 2007, and an eye disorder until 2011. Moreover, the Veteran first reported symptoms of tinnitus in 2014 that began in approximately 2011. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While the Veteran is competent to report that he experienced symptoms, including pain, limitation of motion, headaches, and tinnitus, since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his disorders have persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless not sufficient by itself to establish a relationship between his complaints and active duty. As an initial matter, the large gap in treatment for these disorders weighs against the Veteran’s claims. Moreover, the Veteran’s VA treatment records from May 2003, January 2004, October 2007, and October 2009, and October 2010, are inconsistent with the assertions that his symptoms have persisted since service. Additionally, the Board notes that the Veteran filed a claim for VA benefits many years prior to filing the claims on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorders he now claims, weighs heavily against his credibility. Although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorders on appeal, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. In this case, the Board places significant probative value on the opinions from the November 2014 VA examiner that performed a detailed review of the Veteran’s service and medical treatment records, as well as a comprehensive physical examination. In this case, the examiner opined that the Veteran’s tinnitus was not related to service. In support, she noted that the Veteran did not have any significant changes in his hearing sensitivities in the frequencies known to be affected by hazardous noise exposure from the time of enlistment to present. Specifically, the Board notes that while the Veteran’s separation examination was not of record, the Veteran did have several audiometric evaluations during service, which did not reflect hearing loss or significant threshold shifts. Additionally, the examiner stated that the Veteran only reported experiencing tinnitus in the last three years – which is over 25 years after service. As a result of the foregoing, she opined that his tinnitus was less likely than not related to service. Further, the evidence reflects that he was diagnosed with muscular dystrophy in 1997, which caused significant lower extremity weakness. Moreover, the evidence indicates that the Veteran developed chronic back pain shortly thereafter. However, the is no objective medical evidence linking these disorders to service. With respect to hypertension, while he was diagnosed with these disorders in 2001, there is not sufficient evidence in the medical records to demonstrate a nexus between his active service and these disorders. Similarly, the Veteran had headaches in 2003, a diagnosis of erectile dysfunction in 2007, and a diagnosed eye disorder in 2011; however, there is no objective medical evidence linking these disorders to service. Additionally, the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence to establish a nexus between his complaints and active service. As part of this claim, the Board recognizes the statements from the Veteran and his friend, regarding the relationship between his disorders and active service. Nevertheless, while they are competent to provide testimony regarding observable symptomatology such as pain, limitation of motion, headaches, and tinnitus, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency.   In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claims of service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel