Citation Nr: 18144060 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 16-29 081 DATE: October 23, 2018 ORDER Entitlement to service connection for positive Mantoux test (TB) is denied. Entitlement to service connection for diabetes mellitus II (DM II), to include as secondary to TB, is denied. Entitlement to service connection for gout, to include as secondary to DM II, is denied. REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for hypertension, to include as secondary to DM II, is remanded. Entitlement to service connection for cardiomyopathy, to include as secondary to hypertension is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has TB that had its onset in service or is otherwise related to any in-service disease, injury, or event. 2. The Veteran’s DM II did not originate in service, within a year of service, and is not otherwise etiologically related to any in-service disease, injury, or event. 3. The preponderance of the evidence does not demonstrate that the Veteran’s gout had its onset in service or is otherwise related to any in-service disease, injury, or event. CONCLUSIONS OF LAW 1. The criteria for service connection for TB have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for DM II have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for gout have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to June 1968. In a March 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for tinnitus. Therefore, as the issue has been granted in full, it is not before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection for certain listed chronic diseases, such as diabetes mellitus, may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service, if such disability became manifest to a compensable degree within one year of separation from active duty. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element for certain chronic disabilities listed in 38 C.F.R § 3.309(a) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for tuberculosis, pulmonary, chronic, inactive The Veteran contends that his tuberculosis occurred while he was in service. The Veteran’s STRs notes in April, February, and November 1966, the Veteran tested negative for TB. In May 1967, his results were OMM. During his June 1968 Report of Medical Examination: Discharge exam, the Veteran lungs and chest were notes as being normal. The Veteran noted that he did not have tuberculosis, shortness of breath, and/or pain or pressure in his chest. In April 2013, the Veteran was afforded a VA examination to determine the nature and etiology of his condition. The examiner reviewed the claims file and performed an in-person examination. The examiner stated that after the Veteran left the Navy in 1968, he received a letter stating that he tested positive for tuberculosis. The STRs document a positive Tb skin test of 11 mm in 1968. The Veteran was followed by VA and underwent testing including CXR5 and sputum samples. However, he was never treated with medicine and never had any symptoms or manifestations of tuberculosis. The examiner noted that the Veteran had not been diagnosed with pulmonary or non-pulmonary tuberculosis. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that although the Veteran had a positive skin test for TB, he had not ever been diagnosed with active latent tuberculosis. A March 2013 chest x-ray revealed no infiltrate or effusion or focal lung lesion. The examiner stated that the Veteran had no residuals of tuberculosis, he only had a positive TB skin test. He was never treated for TB and never had any symptoms, pulmonary, or otherwise. In March 2015, x-ray revealed a 4 MM right middle lobe pulmonary nodule. The examiner stated that the nodule was most consistent with a benign etiology, likely normal interfissural lymph node. Based on the evidence of record, the Board concludes that during the period on appeal, the Veteran did not have a diagnosis for TB. As such, element one under Shedden is not met. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board notes that x-rays revealed a pulmonary nodule, however, as noted above, the examiner stated that it is most consistent with a benign etiology, likely normal interfissural lymph node. Therefore, the preponderance of the evidence is against the claim for service connection for TB. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for DM II The Veteran contends that his DM II is due to military service or in the alternative, secondary to TB. The Veteran has been diagnosed with diabetes. As such, element one under Shedden and Wallin is met. Regarding secondary service connection, the Veteran is not service connected for TB. As such, element two under Wallin is not met. Therefore, service connection on a secondary basis is not warranted. The Veteran’s STRs do not document treatments, complaints, or diagnosis of DM II. During his August 1965 Report of Medical History: Enlistment and June 1968 Discharge examinations, testing revealed no sugar or albumin in the Veteran’s urine. His endocrine system was noted as being normal. During his April 2013 General Pension examination, the examiner stated the Veteran was diagnosed with DM II in 2010. At the time of the exam, he was asymptomatic. However, the Board notes that the Veteran’s VA treatment records, active problem lists note DM II from 2001. Based on the evidence of record, the Board finds that service connection for DM II is not warranted. The Veteran’s STRs do not show complaints, treatments, or diagnoses for DM II. The first medical evidence of DM II was in 2001, i.e., over 33 years after his discharge from active service. The fact that there were no records of any complaints or treatment involving the Veteran’s DM II for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). Regarding presumptive service connection, the Board finds that service connection for DM II on a presumptive basis is not warranted as the record does not show evidence of DM II within one year of the Veteran’s separation from active duty. As noted above, the first competent evidence suggestive of DM II was in 2001. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 U.S.C. §§ 1112, 1137 and 38 C.F.R. §§ 3.303, 3.307, 3.309 cannot be applied. As such, the Board finds that elements two and three under Shedden have not been met. Therefore, service connection for DM II is not warranted on a direct or presumptive basis. The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s DM II. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran’s DM II and service, is 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). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran’s DM II to his service. The Board notes that the Veteran was not afforded a VA examination nor was an opinion obtained for his DM II; however, neither an examination nor an opinion is warranted as the duty to assist has not been triggered. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Although McClendon sets a low bar, that bar has not been met here as there is no indication of a link between the Veteran’s current condition and his active service. The first medical evidence of the Veteran’s DM II was in 2001, i.e., 33 years after active service. The only evidence of a possible connection between the Veteran’s disability and his service are the Veteran and his representative’s own broad and conclusory statements that the condition is related to service, and such statements are not sufficient to trigger VA’s obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). In the absence of a nexus, the claim for service connection for DM II is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See Gilbert, 1 Vet. App. at 55-56; 38 U.S.C. § 5107(b). 3. Entitlement to service connection for gout The Veteran contends that his gout is directly related to his military service or in the alternative possibly secondary to DM II. The Veteran has current diagnosis of gout. As such, element one under Shedden and Wallin is met. Regarding secondary service connection, the Veteran is not service connected for DM II. As such, element two under Wallin is not met. Therefore, service connection on a secondary basis is not warranted. The Veteran’s STRs do not document treatments, complaints, or diagnosis of gout. During his August 1965 Report of Medical History: Enlistment and June 1968 Discharge examinations, the examiner noted the Veteran’s upper extremities were normal. In March 2009, the Veteran was seen at the New Orleans VAMC complaining of pain and swelling in his left wrist. The Veteran was diagnosed with gout. Based on the evidence of record, the Board finds that service connection for gout is not warranted. The Veteran’s STRs do not document complaints or treatments for gout. The first medical evidence of cardiomyopathy was in 2009, i.e., over 41 years after his discharge from active service. The fact that there were no records of any complaints or treatment involving the Veteran’s gout for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran’s gout to his service. Therefore, service connection for gout is not warranted. The Board has considered the Veteran’s statements regarding the etiology of his gout. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between gout and service, is 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). The Board acknowledges that there is no VA opinion regarding the Veteran’s theories of entitlement. However, as there is no credible lay evidence or competent medical evidence indicating that the Veteran’s disability was present in service or may be associated with his active service, a medical nexus opinion is not warranted, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (a conclusory lay nexus statement is not sufficient to trigger VA’s duty to provide an examination). In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for gout. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND The Veteran has been diagnosed with erectile dysfunction and hypertension. The Veteran contends that his erectile dysfunction, including loss of/loss of use of a creative organ is due to his military service or in the alternative, due to any medications he takes for his service-connected disability. The Board notes that the Veteran is service-connected for bilateral hearing loss and tinnitus. Neither his VA examination nor his VA treatment records note that the Veteran is being treated with medication for his service-connected disabilities. Therefore, the Board will consider whether the Veteran’s erectile is due to military service on a direct basis. The Board notes that while in service, the Veteran was seen for penile issues. However, he has not been afforded a VA examination and opinion to determine whether his current diagnosed condition is related to military service, including his in-service complaints. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the issue is remanded to afford the Veteran a VA examination. Regarding his hypertension, in his August 2017 statement, the Veteran, through his representative, stated that the Veteran’s August 1965 entrance exam noted a blood pressure reading of 110/52 while his June 1968 separation blood pressure reading was 120/90. The representative further stated that these readings showed the start of the Veteran’s hypertension in service. VA regulations define the term hypertension to mean diastolic blood pressure that is predominantly 90 mm or greater, and the term isolated systolic hypertension to mean systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2017). Further, M21-1, Part III, Subpart iv, 4.e.1.d defines pre-hypertension as systolic blood pressure 120-139 mm and diastolic blood pressure 80-89 mm. The Board finds that the Veteran’s separation blood pressure reading falls within the ranges of pre-hypertension. Therefore, the Board finds that a remand is necessary to determine whether the Veteran’s current diagnosis is related to his active service. The Veteran has been diagnosed with non-ischemic cardiomyopathy. The Veteran contends that his disability is related to his military service or in the alternative, as secondary to hypertension. As the issue of entitlement to non-ischemic cardiomyopathy can be impacted by resolution of the Veteran’s hypertension claim, the Board finds that the issue of entitlement to non-ischemic cardiomyopathy must be deferred, as it is inextricably intertwined with the issue being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other) The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Contact the Veteran and request that he identify all private providers who have treated him for his erectile dysfunction and hypertension. After obtaining authorization, obtain all outstanding, non-duplicative records. If the records are unavailable, document the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Schedule VA examinations to determine the nature and etiology of the Veteran’s erectile dysfunction and hypertension. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. A. Based on a review of the entire record, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction had its onset during military service or is etiologically related to the Veteran’s military service, to include any symptomology therein. B. Regarding the Veteran’s hypertension, based upon a review of the pertinent evidence of record, to include consideration of the Veteran’s June 1968 discharge blood pressure reading discussed above, the physician should offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s hypertension had its onset during active service? The supporting rationale for all opinions expressed must be provided. The examiner should consider the Veteran’s lay statements. 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel