Citation Nr: 18145517 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-19 968A DATE: October 29, 2018 ORDER Service connection for sleep apnea, to include as secondary to diabetes mellitus type II (diabetes), is granted. Service connection for an acquired psychiatric disorder, to include anxiety and PTSD, is granted. Service connection for ischemic heart disease (IHD) is granted. Service connection for borderline first degree AV block is denied. Service connection for gastroenteritis is denied. Service connection for chronic constipation is denied. Service connection for bilateral gynecomastia is denied. An increased rating of 10 percent, but no higher, for anterior chest wall syndrome with atypical chest pain is granted. FINDINGS OF FACT 1. The Veteran’s sleep apnea is proximately due to his service connected diabetes. 2. The Veteran’s psychiatric disorder was incurred in and due to his time in service. 3. The veteran’s IHD was incurred in and due to his time in service. 4. The Veteran’s borderline first degree AV block was not incurred in or due to his time in service. 5. The Veteran’s gastroenteritis was not incurred in or due to his time in service. 6. The Veteran’s chronic constipation was not incurred in or due to his time in service. 7. The Veteran’s bilateral gynecomastia was not incurred in or due to his time in service, to include exposure to herbicide agents. 8. The Veteran’s anterior chest wall syndrome with atypical chest pain is manifested by slight symptoms. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea to include as secondary to diabetes are met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for IHD are met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for borderline first degree AV block are not met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for gastroenteritis are not met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for chronic constipation are not met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. The criteria for service connection for bilateral gynecomastia, to include as due to herbicide exposure, are not met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 8. The criteria for entitlement to a 10 percent rating, but no higher, for anterior chest wall syndrome with atypical chest pain have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.73, Diagnostic Code (DC) 5321. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1969 to December 1973 and from February 1974 to December 1977. As a preliminary matter, the Board notes the Veteran is already 100 percent service connected. The Veteran has also been in receipt of a total disability rating based on individual unemployability (TDIU) since March 2005. Additionally, the Veteran receives special monthly compensation (SMC) for loss of a creative organ. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, “herbicide agents” are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with exceptions not applicable in the instant case. 38 C.F.R. § 3.307 (a)(6)(ii). Sleep Apnea The Veteran contends he has sleep apnea which is proximately due to his service connected diabetes. In a July 2014 letter, one of the Veteran’s doctors opined the Veteran’s sleep apnea was more likely than not due to his diabetes. The examiner explained the Veteran had put on a significant amount of weight due to his diabetes, which, in turn, caused his sleep apnea. The Veteran had an examination in June 2015 for his sleep apnea. The examiner opined the Veteran’s sleep apnea was less likely than not proximately due to his diabetes. The remainder of the Veteran’s record is negative for other mention of whether the Veteran’s sleep apnea is proximately due to any of his service connected conditions. Therefore, the Board finds the evidence to be in equipoise, and granting the benefit of the doubt to the Veteran, will grant the claim. Further development is simply not warranted in this case, on this issue. Acquired Psychiatric Disorder The Board notes the Veteran originally filed separate claims for PTSD and for depression. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran’s description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claim for service connection for PTSD and depression pursuant to Clemons and re-characterized it as shown on the cover page of this decision. The Veteran contends he has an acquired psychiatric disorder that was incurred in and due to his time in service. While the Veteran does not have a diagnosis of PTSD, he does have a diagnosis of anxiety. (See February 2013 examination.) The Veteran’s service treatment records (STRs) show he was treated for anxiety while in service. The February 2013 examiner opined the Veteran’s diagnosed anxiety was at least as likely as not due to his time in service. Therefore, the claim will be granted. Again, further development is simply not warranted in this case, on this issue. IHD The Veteran contends he has IHD that was incurred in and due to his time in service. The Veteran has been diagnosed with IHD. (See July 2018 examination.) In addition to being exposed to herbicides while serving in Vietnam (See September 2015 correspondence), the Veteran’s STRs are replete with complaint and treatment for chest pains. Lastly, the June 2018 examiner opined it was at least as likely as not the Veteran’s heart disability was proximately due to the Veteran’s service connected diabetes and hypertension. Therefore, the claim will be granted. Borderline AV Block The Veteran contends his has a borderline AV block that was incurred in and due to his time in service. The Veteran was seen in November 1976 while in service for a borderline first-degree AV block. The Veteran’s STRs also show multiple complaints of chest pain. (See April 1971, May 1971, August 1972 treatment records.) The Veteran was afforded an examination for his heart in October 2013. After examining the Veteran and reviewing the Veteran’s file, the examiner opined the Veteran’s first-degree AV block was less likely than not due to any AV block incurred during service. The examiner explained the Veteran had only 1 EKG reading consistent with a first-degree AV block, which was designated as borderline. The examiner explained this does not constitute a diagnostic and subsequent ECGs have not displayed this finding. The remainder of the Veteran’s record is negative for any link between an AV block in service and any current AV block the Veteran may have. Therefore, the claim must be denied. Gastroenteritis and Chronic Constipation The Veteran contends he has gastroenteritis and chronic constipation that were incurred in and due to his time in service. The Veteran had been diagnosed with hemorrhoids and anal fistulas in service. The Veteran’s STRs contain complaint and treatment for constipation (See September 1975, August 1976). However, the Veteran’s separation examination was negative for any mention of continuing or ongoing gastrointestinal problems. The Veteran’s treatment records show he continues to take mediation for constipation. (See January 2007, August 2009, June 2013, June 2017, December 2017, July 2018 treatment notes.) The Veteran’s record also indicates he had a colonoscopy. (See September 2016 treatment notes.) The Veteran had a hemorrhoidectomy in 1977 and a fistulotomy in February 2002. In February 2015, the Veteran was afforded an examination for these conditions. The examiner noted the Veteran’s previously diagnosed hemorrhoidectomy/fistulectomy. However, the examiner opined the Veteran’s current complaints of constipation and gastroenteritis had no relation to his previous problems and were less likely than not due to his previous hemorrhoidectomy in the 1970s. The examiner also explained the complaints of gastro disturbance in the Veteran’s STRs were most likely acute transient phenomenons which resolved without residual disability and were unrelated to the Veteran’s current symptomatology. The Veteran has stated he has had constipation since service and has continued to take medication for this condition. However, the objective medical evidence does not show continuous treatment or symptoms since service. Bilateral Gynecomastia The Veteran contends his bilateral gynecomastia is due to his exposure to herbicide agents while serving in Vietnam. The Veteran was diagnosed with moderate right and mild left gynecomastia. (See April 2011 treatment note.) The Veteran has been treated for this condition and has had surgery. (See November 2011, January 2013 treatment notes.) However, this condition is not listed as one of the enumerated diseases that qualify for the herbicide exposure presumption. Therefore, it cannot be the basis for a finding of service connection. The Board has considered whether the Veteran’s condition could be granted under a theory of direct service connection. However, the Veteran’s STRs, including his separation examination, are negative for any complaint or treatment for this condition and the Veteran’s record is silent for any link between the Veteran’s current condition and any symptoms he may have had in service. The Board has also considered the print out the Veteran submitted in February 2014 that shows herbicide agent exposure symptoms include gynecomastia. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1). However, treatise evidence must “not simply provide speculative generic statements not relevant to the [claimant]’s claim.” Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, “standing alone,” must discuss “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Id. In this case, the article submitted by the Veteran only provides general information regarding exposure to herbicide agents and gynecomastia. It is not accompanied by any corresponding clinical evidence specific to the Veteran, and does not suggest a relationship between the Veteran’s gynecomastia with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. As such, the Board gives the article little probative weight and must deny the claim. Increased Rating Anterior Chest Wall Syndrome with Atypical Chest Pain Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. In this case, the rating schedule does not provide a specific diagnostic code for the Veteran’s anterior chest wall syndrome with atypical chest pain, so it has been rated analogously under DC 5321 for an injury to Muscle Group XXI, the muscles of respiration of the thoracic muscle group. 38 C.F.R. § 4.73, Diagnostic Code 5321. Under DC 5321, a slight injury warrants a noncompensable evaluation. A moderate injury warrants a 10 percent rating. A moderately severe or severe injury warrants a 20 percent rating. The Veteran is currently in receipt of a noncompensable rating for his chest wall syndrome with atypical chest pain. For the reasons below, the Board finds that a 10 percent, but no higher, rating is warranted. The Veteran’s chest wall pain remains on his problem list. (See December 2017, July 2018.) The Veteran was seen in July 2017 for chest paid that lasted three days for a few seconds for each episode. The Veteran was seen in the emergency room in June 2018 with a typical chest pain. The Veteran was seen for intermittent chest wall pain in January 2007. The Veteran had an examination for this condition in October 2013. The examination did not indicate the severity of the Veteran’s chest wall syndrome symptoms. Based on the above, the Board finds the Veteran suffers from slight symptoms. The Board bases this on the fact the evidence shows the Veteran’s pains are intermittent and do not last for long periods of time. The Board finds that a higher 20 percent rating for moderate symptoms is not warranted because, while the Veteran has chest pains, they are not such that require attention frequently or longer periods of hospitalization or monitoring. Neither the Veteran nor her representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding all the claims above, the Board acknowledges the Veteran’s, his spouse’s and his neighbors’ statements that his claimed disabilities constantly bother him, causing him pain and discomfort, and that he believes they are all due to his time in service, including his time in Vietnam. The Board also recognizes the Veteran continues to seek medical treatment and takes medication for many of these conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is important for the Veteran to understand that the medical finding provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his disabilities are the result of service, providing a highly clear basis for the opinion. Therefore, the Board provides more weight to the medical evidence of record, which is why some of the claims above remain denied. (Continued on the next page)   Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel