Citation Nr: 18144523 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-39 182 DATE: October 24, 2018 ORDER Entitlement to service connection for a gastrointestinal disability, to include diverticulitis, a ventral hernia, and a colon polyp, is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for degenerative joint disease (DJD) of the cervical spine is remanded. Entitlement to service connection for DJD of the lumbar spine is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a disability manifested by dizziness and lightheadedness, to include as secondary to diabetes mellitus and hypertension, is remanded. Entitlement to service connection for depression, to include as secondary to service-connected disabilities, is remanded. Entitlement to an evaluation in excess of 10 percent for hypertension is remanded. Entitlement to an initial compensable evaluation for erectile dysfunction is remanded. Entitlement to an evaluation in excess of 10 percent for acne keloidalis of the posterior neck is remanded. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus is remanded. Entitlement to a separate compensable evaluation for diabetic retinopathy/cataracts is remanded. Entitlement to an evaluation in excess of 10 percent for carpal tunnel syndrome of the left upper extremity is remanded. Entitlement to an evaluation in excess of 10 percent for carpal tunnel syndrome of the right upper extremity is remanded. Entitlement to an evaluation in excess of 10 percent for diabetic neuropathy of the left lower extremity is remanded. Entitlement to an evaluation in excess of 10 percent for diabetic neuropathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for a disability manifested by fecal incontinence is remanded. Entitlement to service connection for a disability manifested by urinary incontinence is remanded. FINDINGS OF FACT 1. The Veteran’s gastrointestinal disability of diverticulitis, a colon polyp, and a hernia did not arise in active duty service and are not otherwise etiologically related to active duty service. 2. The record does not contain competent evidence of a current diagnosis of PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal disability, to include diverticulitis, a ventral hernia, and a colon polyp, have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a), 4.125(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from December 1969 to September 1971, including in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) in January 2012 and February 2012. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be awarded on a presumptive basis for veterans who were exposed to an herbicide agent during active service for certain diseases. 38 C.F.R. §§ 3.307, 3.309. However, diverticulitis, hernias, and incontinence are not among the disabilities for which presumptive service connection may be granted due to exposure to an herbicide agent. 1. Entitlement to service connection for a gastrointestinal disorder, to include diverticulitis The Veteran filed a claim received in December 2009 seeking service connection for diverticulosis or diverticulitis with extreme pain. Notably, however, the record does not contain any significant contentions suggesting that any gastrointestinal disability arose in service, is otherwise etiologically related to service, or has otherwise been caused or aggravated by a service-connected disability. In the February 2012 notice of disagreement, the Veteran suggested that many of the disabilities for which he is seeking service connection, including incontinence, were due to his diabetes. Noticeably absent from that list was diverticulitis or any other gastrointestinal disability. Rather, that notice of disagreement appears to contain only a bare assertion of disagreement with the denial of service connection for diverticulitis. The record also contains a statement received by the Veteran’s wife in February 2017. At that time, the Veteran’s wife explained that even with medications, the Veteran had digestive problems daily and expressed her concern with the state of his health. It is notable that this statement does not contain any contention that a gastrointestinal disability occurred in service or any contention that any gastrointestinal condition is otherwise related to the Veteran’s active duty service. The Veteran’s representative submitted a June 2018 brief in which the Board was urged to grant service connection for diverticulitis due to the lay statement of the Veteran’s spouse. However, as explained above, that statement does not contain any competent evidence suggesting that any gastrointestinal symptom or disability arose in or is due to the Veteran’s active duty service. The Board also finds that there is no competent evidence or assertion that any gastrointestinal disability is proximately due to or has been aggravated by the Veteran’s service-connected disabilities, to include diabetes and hypertension. Rather, the claims file includes only a bare request for service connection for a gastrointestinal disability, to include diverticulitis and diverticulosis, with no associated explanation or assertion how this disability arose in or was caused by service or how it has been worsened by or is proximately due to any service-connected disability. In the absence of any competent and probative evidence linking a gastrointestinal ability to service or to another service-connected disability, the Board cannot find that the criteria for service connection for a gastrointestinal disability have been met. Likewise, 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. In making this determination, the Board recognizes that the Veteran has not been afforded a VA medical examination to address the question of whether any current gastrointestinal disability arose in or was otherwise caused by active duty service. VA’s duties to assist a claimant in the development of a claim may include providing such a medical examination. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Specifically, VA must provide such an evaluation when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the claimant’s service or with another service-connected disability, and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran’s claims file includes competent diagnoses of a ventral hernia in April 2009, diverticulitis in August 2009, and a polyp in May 2014. A January 1970 service treatment record also includes a report of stomach cramps for 30 days. Although an examination at that time was reported to be negative and the Veteran’s abdomen and viscera were noted to be normal at the time of his separation examination in August 1971, the Board finds that the January 1970 treatment record could reasonably represent evidence of an in-service event or disease. However, there is no competent evidence of record or even a competent and concrete assertion suggesting that any current abdominal or gastrointestinal disability is associated with any specific aspect of the Veteran’s active duty service, to include that in-service report of cramps. 2. Entitlement to service connection for PTSD In addition to the general requirements for service connection, the regulations include additional criteria that must be met before the Board may grant a claim of service connection for PTSD. 38 C.F.R. § 3.304(f). As a preliminary matter, those criteria require that such a grant requires “medical evidence diagnosing the condition” in accordance with 38 C.F.R. § 4.125(a). Id. Section 4.125(a) clarifies that diagnoses of mental disorders must conform to the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5). That regulation was revised effective August 2014, during the pendency of the current appeal. The pre-revision version of that regulation was nearly identical, but required instead that a diagnosis of a mental disorder conform to the fourth edition of the DSM. 38 C.F.R. § 4.125(a) (2013). To evaluate the Veteran’s claim for service connection for PTSD, he was afforded VA psychological evaluations in March 2010 and November 2011. After personally examining the Veteran in accordance with the applicable DSM, each of the clinicians who evaluated him gave a diagnosis for depression and the November 2011 examiner explicitly stated that the Veteran did not meet the diagnostic criteria for PTSD. A review of the remainder of the claims file fails to uncover any evidence that the Veteran has been diagnosed by a mental health professional with PTSD. The Board does not doubt the sincerity of the Veteran’s belief that he has PTSD. However, there is no evidence that he possesses the medical knowledge, training, or experience to opine on the medically complex question of which diagnostic criteria his symptoms meet. Overall, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Where, as here, there is no competent evidence that the Veteran has a current diagnosis for the claimed condition of PTSD, the Board is precluded from granting his claim for service connection and the doctrine of the benefit of the doubt is not for application. Accordingly, the Veteran’s claim for service connection for PTSD must be denied. REASONS FOR REMAND 1. Entitlement to service connection for DJD of the cervical spine, DJD of the lumbar spine, a left hip disability, and a right hip disability is remanded. As was the case with the Veteran’s claim for service connection for a gastrointestinal disability, he has not yet been provided a medical evaluation relating to his claim for service connection for any of these musculoskeletal or joint-related disabilities. However, unlike his claim for service connection for diverticulitis, his February 2012 notice of disagreement includes a competent evidence of both current symptoms in each of these joints, a competent assertion of an in-service fall, and a competent statement that at least indicates that the current symptoms or disabilities are associated with that contended in-service event. Given the low threshold set forth in McLendon, the Board finds that VA must arrange for the Veteran to attend a medical examination to determine the nature and etiology of any cervical spine, lumbar spine, right hip, or left hip disability. 2. Entitlement to service connection for a disability manifested by dizziness and lightheadedness, to include as secondary to diabetes mellitus and hypertension, is remanded. The Veteran has also yet to be provided a medical examination to determine whether his symptoms of dizziness and lightheadedness represent manifestations of a disability that is either related to service or is secondary to his service-connected diabetes or hypertension. In his February 2012 notice of disagreement, the Veteran suggested that these symptoms are secondary to his service-connected hypertension. VA treatment records from February and July 2012 indicate that the Veteran’s symptoms of dizziness or lightheadedness have been reported during periods of abnormal blood pressure or blood glucose readings. The Board finds that a medical examination must be provided to determine the relationship between any disability manifested by dizziness or lightheadedness and the Veteran’s service-connected hypertension and diabetes. 3. Entitlement to service connection for depression, to include as secondary to service-connected disabilities, is remanded. As the Board finds the results of the verification of the Veteran’s reported stressors are also relevant to his claim for service connection for depression, the Board does not find that it has sufficient evidence to adjudicate the claim for depression. In addition, the record indicates that the Veteran attended VA-provided psychological evaluations in March 2010 and November 2011. The examiner who evaluated the Veteran in 2011 opined that the Veteran did not meet the criteria for PTSD and pointed to the negative 2010 opinion regarding the etiology of the Veteran’s depression. Of particular note, the March 2010 opinion does report that the Veteran’s depression is less likely than not related to his diabetes. However, that examiner did not provide a supporting rationale for this opinion and instead stated that it would be mere speculation to find that the diabetes itself caused or aggravated depression due to the Veteran’s numerous other physical disabilities. Numerous statements by the Veteran suggest that he experiences significant depressive symptoms due to his service-connected erectile dysfunction and the Board finds that the omission of any statement regarding the likelihood that the Veteran’s depression is proximately due to or has been aggravated by this disability or the Veteran’s service-connected carpal tunnel syndrome renders the March 2010 opinion inadequate. 4. Entitlement to an evaluation in excess of 10 percent for hypertension, to an initial compensable evaluation for erectile dysfunction, to an evaluation in excess of 10 percent for acne keloidalis of the posterior neck, to an evaluation in excess of 20 percent for diabetes mellitus, to an evaluation in excess of 10 percent for carpal tunnel syndrome of the left upper extremity, and to an evaluation in excess of 10 percent for carpal tunnel syndrome of the right upper extremity is remanded. In the June 2018 appellate brief, the Veteran’s representative asserted that his erectile dysfunction, diabetes, carpal tunnel syndrome, hypertension, and acne keloidalis had worsened and that the criteria for a higher evaluation was warranted. He has not been afforded a VA medical exmaination relating to any of these claims for increased evaluations since March 2010. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of these disabilities. 5. Entitlement to service connection for a disability manifested by incontinence is remanded. Although the Veteran has not attended a VA medical examination that specifically addresses his claim for service connection for a disability manifested by incontinence, he did attend a March 2010 diabetic evaluation. That examination form prompted the examiner to state whether various symptoms other than incontinence were due to the Veteran’s diabetes. Unfortunately, although the examiner noted that the Veteran did have bowel incontinence, the form did not appear to prompt the examiner to address the question of any etiological relationship between that incontinence and the Veteran’s service-connected diabetes. In light of the Veteran’s competent contentions that these symptoms did not arise until after he developed diabetes, the Board finds that an addendum opinion must be secured to address the issue of secondary service connection. 6. Entitlement to service connection for a disability manifested by urinary incontinence is remanded. In contrast to many of the other disabilities for which the Veteran is currently seeking service connection, he was afforded a June 2014 VA medical evaluation to determine the nature and etiology of any current disability manifested by urinary incontinence. Although the Veteran was found not to have any diagnosed condition of the bladder, urethra, or urinary tract, he submitted a form in August 2018 authorizing the release of medical records to VA. In that form, the Veteran appears to have transcribed additional VA treatment records relating to his symptoms of urinary incontinence that are not currently of record and include reports of possible bladder wall thickening, cystitis, muscular hypertrophy, prostatomegaly, and impingement of the bladder base by the prostate. As this evidence is central to the question of whether the Veteran has a current disability manifested by urinary incontinence, VA must obtain this evidence and consider it in connection with his claim. 7. Entitlement to an evaluation in excess of 10 percent for diabetic neuropathy of the left lower extremity, to an evaluation in excess of 10 percent for diabetic neuropathy of the right lower extremity, to a separate compensable evaluation for diabetic retinopathy/cataracts, and to a TDIU is remanded. In correspondence received in February 2012, the Veteran disagreed with the January 2012 rating decision that denied entitlement to a TDIU or increased evaluations for these other disabilities. In his disagreement, he explicitly mentioned his dissatisfaction with the decision regarding his neuropathy, diabetic retinopathy, and inability to work. The claims file does not include an SOC with respect to these issues and they must be remanded for further adjudicative action. 38 C.F.R. 19.9 (c) (2017); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. 2. Schedule the Veteran for a psychiatric examination to obtain an opinion addressing the nature and etiology of his depression or any other acquired psychiatric disability. The examiner must provide an opinion regarding the following questions: (a.) Is it at least as likely as not that any acquired psychiatric disability arose in or is otherwise etiologically related to service? (b.) Is it at least as likely as not that any acquired psychiatric disability is proximately due to any service-connected disability, to include the Veteran’s erectile dysfunction? (c.) Is it at least as likely as not that any acquired psychiatric disability has been aggravated by (worsened in severity beyond the natural progression of the disability) any service-connected disability, to include the Veteran’s erectile dysfunction? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cervical spine disability, lumbar spine disability, left hip disability, and right hip disability. The examiner must opine whether it is at least as likely as not that any such disability is related to an in-service injury, event, or disease, including the Veteran’s contended in-service fall. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current disability manifested by bowel incontinence or urinary incontinence. The examiner must provide an opinion regarding the following items: (a.) Is it at least as likely as not that any disability manifested by bowel incontinence or urinary incontinence arose in or is otherwise etiologically related to service? (b.) Is it at least as likely as not that any disability manifested by bowel incontinence or urinary incontinence is proximately due to any service-connected disability, to include the Veteran’s diabetes? (c.) Is it at least as likely as not that any disability manifested by bowel incontinence or urinary incontinence has been aggravated by (worsened in severity beyond the natural progression of the disability) any service-connected disability, to include the Veteran’s diabetes? 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current disability manifested by symptoms of dizziness or lightheadedness. The examiner is asked to provide an opinion regarding the following questions: (a.) it at least as likely as not that any disability manifested by dizziness or lightheadedness arose in or is otherwise etiologically related to service? (b.) Is it at least as likely as not that any disability manifested by dizziness or lightheadedness is proximately due to any service-connected disability, to include the Veteran’s diabetes or hypertension? In answering this question, please consider the treatment notes suggesting that symptoms of dizziness have arisen in the context of abnormal blood pressure or blood glucose readings, including in February and July 2012. (c.) Is it at least as likely as not that any disability manifested by dizziness or lightheadedness has been aggravated by (worsened in severity beyond the natural progression of the disability) any service-connected disability, to include the Veteran’s diabetes or hypertension? In answering this question, please consider the treatment notes suggesting that symptoms of dizziness have arisen in the context of abnormal blood pressure or blood glucose readings, including in February and July 2012. 6. Schedule the Veteran for an examination by an appropriate clinician to obtain evidence as to the current severity of his service-connected hypertension, diabetes, erectile dysfunction, and carpal tunnel syndrome of the right and left upper extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to hypertension, diabetes, erectile dysfunction, or carpal tunnel syndrome alone and discuss the effect of the Veteran’s hypertension, diabetes, erectile dysfunction, or carpal tunnel syndrome on any occupational functioning and activities of daily living. (Continued on the next page)   7. Send the Veteran and his representative a statement of the case that addresses the issues of increased evaluations for diabetic neuropathy of the left lower extremity, diabetic neuropathy of the right lower extremity, a separate compensable evaluation for diabetic retinopathy/cataracts, and a TDIU. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel