Citation Nr: 18152302 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-42 474 DATE: November 21, 2018 ORDER The petition to reopen a previously denied claim of entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected disability, is granted. The petition to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disability, is granted. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for a kidney disorder is denied. Entitlement to service connection for erectile dysfunction is denied. A disability rating in excess of 10 percent for the service-connected residuals of a right varicocele ligation is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a disability rating in excess of 10 percent, to include separate ratings for lumbar spine radiculopathy, is remanded. FINDINGS OF FACT 1. A December 2004 rating decision denied the Veteran’s claim of entitlement to service connection for a cervical spine disorder; the Veteran did not file a notice of disagreement or submit new and material evidence within a year of the rating decision and it became final. 2. In a June 2006 rating decision, the Veteran’s claim of entitlement to service connection for posttraumatic stress disorder (PTSD) was denied based on the lack of a diagnosis of PTSD; the Veteran did not file a notice of disagreement or submit new and material evidence within a year of the rating decision and it became final. 3. Evidence received since the December 2004 rating decision that denied entitlement to service connection for a cervical spine disorder includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 4. Evidence received since the June 2006 rating decision that denied entitlement to service connection for PTSD includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 5. A cervical spine disorder was not shown in service and the weight of the evidence is against a finding that is etiologically related to or caused by his active duty service or secondary to a service-connected disability. 6. A kidney disorder was not shown in service and the weight of the evidence is against a finding that it is etiologically related to or caused by his active duty service or caused or aggravated by medications for a service-connected disability. 7. Erectile dysfunction was not shown in service and the weight of the evidence is against a finding that it is etiologically related to or caused by his active duty service or caused or aggravated by the service-connected residuals of a right varicocele ligation. 8. Residuals of a right varicocele ligation include recurrent symptomatic infection requiring drainage/frequent hospitalization, and/or requiring continuous intensive management. CONCLUSIONS OF LAW 1. The July 2010 rating decision, which declined to reopen the claim of entitlement to service connection for a cervical spine disorder, is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 2. New and material evidence has been received since the July 2010 rating decision sufficient to reopen the previously denied claim of entitlement to service connection for a cervical spine disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The July 2010 rating decision, which denied entitlement to service connection for PTSD, is final. 38 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 4. New and material evidence has been received since the July 2010 rating decision sufficient to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 5. The criteria for service connection for a cervical spine disorder, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2018). 6. The criteria for service connection for a kidney disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2018). 7. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2018). 8. The criteria for a disability rating in excess of 10 percent for residuals of right varicocele ligation have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code 7525 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from December 1985 to September 1993, to include service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). As to the issue of entitlement to service connection for an acquired psychiatric disorder, the claim initially was developed as a claim of entitlement to service connection for PTSD. See Rating Decision, June 2006. Notably, the U.S. Court of Appeals for Veteran Claims (Court) held that a claim for service connection for a psychiatric disorder encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the issue of service connection for PTSD was denied in the June 2006 rating decision, the Veteran was subsequently diagnosed with other psychiatric disorders. Per Clemons, the Veteran’s initial claim of entitlement to service connection for PTSD is part and parcel of the broader claim of entitlement to service connection for an acquired psychiatric disorder. As such, the issue on appeal has been recharacterized. New and Material Evidence Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Cervical Spine Disorder In March 2010, the Veteran petitioned to reopen his claim of entitlement to service connection for a cervical spine disorder. His claim was denied in a July 2010 rating decision, and the Veteran neither appealed the rating decision, nor submitted any new and material evidence pertaining to this issue within a year of that rating decision, meaning that the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the July 2010 rating decision, the evidence of record did not contain competent lay or medical evidence showing that the Veteran’s cervical spine disorder was due to his active service. As such, the RO denied his claim. In a statement received in July 2011, the Veteran sought to have his previously denied claim for entitlement to service connection for a cervical spine disorder reopened. He asserted that his cervical spine disorder was secondary to his service connected lumbar spine disorder. The RO subsequently reopened the claim. Based on the evidence associated with the Veteran’s claims file subsequent to the RO reopening the claim, the Board finds that this additional evidence is new and material. Accordingly, the request to reopen the previously denied claim of service connection for a cervical spine disorder is granted. Acquired Psychiatric Disability The Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder was denied in July 2010. The Veteran did not appeal the July 2010 rating decision, nor did he submit any new and material evidence within a year of the July 2010 rating decision. See 38 C.F.R. §3.156(b). The July 2010 rating decision became final. At the time of the July 2010 rating decision, the record consisted of the Veteran’s service treatment records (STRs), VA treatment records, and private treatment records. Evidence received since the July 2010 rating decision includes additional VA treatment records showing the Veteran has been diagnosed with adjustment disorder and depressive disorder. This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously-denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the claim is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Cervical Spine Disorder The Veteran contends that his current cervical spine disorder is either the direct result of his active duty service or secondary to his service-connected lumbar spine disorder. The Veterans STRs do now show any symptoms, complaints, or diagnoses of a cervical spine disorder during his active duty service. The record contains no diagnosis of a cervical spine disorder either in service or within one year after service, which would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. The Veteran has not argued to the contrary and instead argues his cervical spine disorder is the result of his service-connected lumbar spine disorder. There is also no medical evidence linking the Veteran’s current cervical spine disorder to his active service, and he has not submitted any medical opinion that even suggests that his cervical spine disorder either began during or was otherwise caused by his military service or was caused by his service-connected lumbar spine disorder. See Shedden, 381 F.3d 1163, 1167. In February 2012, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the medical evidence failed to demonstrate injury or complaints of cervical spine problems during his active service. The examiner also reported that the Veteran’s cervical spine disorder was independent of his service connected lumbar spine disability and was not proximately due to or the result of his service connected lumbar spine disability. The examiner reported that the Veteran’s lumbar spine disability did not cause the Veteran’s cervical spine herniation. After weighing all the evidence, the Board finds great probative value in th February 2012 VA examiner’s opinion. This negative opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Consideration has been given to the Veteran’s personal assertion that his cervical spine disorder was caused by his service-connected lumbar spine disorder. 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 issues in this case, the etiology of a cervical spine disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). A cervical spine disorder is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that a physical examination is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of a cervical spine disorder, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating disorders such as a cervical spine disorder. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the Veteran’s assertions do not constitute competent medical evidence. The Veteran has not offered any medical opinion of record that refutes the conclusions of the expert medical opinion. As such, the VA medical opinion of record is given great weight. Accordingly, as the criteria for service connection for a cervical spine disorder have not been met, the Veteran’s claim is denied. Kidney Disorder and Erectile Dysfunction The Veteran filed his service connection claims for a kidney disorder and erectile dysfunction in July 2011, which were denied by March 2013 rating decision. The Veteran asserts that his kidney disorder was caused or aggravated by medications for his service-connected disabilities. He asserts that his erectile dysfunction was caused or aggravated by his service-connected residuals from a right vacicocele ligation. The Veterans STRs do now show that he had any symptoms, complaints, or diagnoses for a kidney disorder or erectile dysfunction during his active service. After his separation from active service, the Veteran was diagnosed with mild chronic renal insufficiency that was non-progressive in 2002, almost a decade after his separation from service. He was diagnosed with erectile dysfunction in 2008. As such, the record contains no diagnosis of a kidney disorder or erectile dysfunction either in service or within one year after service, precluding service connection on the basis of continuity of symptomology or on any presumptive basis. The Veteran has not argued to the contrary and instead argues his kidney disorder is the result of medications prescribed for his service connected disabilities and his erectile dysfunction is the result of his service-connected residuals from a right varicocele ligation. There is also no medical evidence linking the Veteran’s current kidney disorder or erectile dysfunction to his active service, and he has not submitted any medical opinion that even suggests that his kidney disorder or erectile dysfunction either began during or was otherwise caused by his military service. See Shedden, 381 F.3d 1163, 1167. In December 2011, the Veteran was afforded a VA examination for his kidney disorder. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s kidney disorder was not proximately due to or the result of medications taken for his service-connected lumbar spine disability. The examiner reported that the medical evidence does not show that he was taking excessive ibuprofen. The examiner reported that the Veteran’s renal function had very little change during the past nine years. In December 2011, the Veteran was afforded a VA examination for his erectile dysfunction. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner indicated that the Veteran did not have a diagnosis of erectile dysfunction. In February 2012, the Veteran was afforded a VA examination for his kidney disorder. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s kidney disorder was not proximately due to or the result of medications taken for his service-connected lumbar spine disability. The examiner agreed with the findings of the December 2011 VA examiner. The examiner also reported that there was no evidence of medication-induced kidney toxicity during his active service. The examiner reported that there was no compelling medical evidence to correlate the Veteran’s current kidney disorder with medications taken for his service-connected disabilities. In December 2014, the Veteran was afforded a VA examination for his erectile dysfunction. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s erectile dysfunction was not at least as likely as not due to his residuals from a right varicocele ligation. The examiner reported that varicocele surgery did not cause erectile dysfunction. After weighing all the evidence, the Board finds great probative value in the December 2011, February 2012, and December 2014 VA examiners’ opinions. These negative opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray, supra. Consideration has been given to the Veteran’s personal assertion that his kidney disorder and erectile dysfunction were caused by medications for his service-connected diabetes or his residuals from a right varicocele ligation. Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra, as to the specific issues in this case, the etiology of a kidney disorder and erectile dysfunction, falls outside the realm of common knowledge of a lay person. See Jandreau, supra. A renal disorder and erectile dysfunction are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include kidney function studies are needed to properly assess and diagnose the disorders. See Davidson, supra. That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of a kidney disorder and erectile dysfunction, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating disorders such as a kidney disorder, erectile dysfunction, or residuals from a right varicocele ligation or the effects of medications prescribed for his service-connected disabilities. See King, supra. Accordingly, the Veteran’s assertions do not constitute competent medical evidence. The Veteran has not offered any medical opinion of record that refutes the conclusions of the VA clinicians. As such, those opinion are given greater weight. Accordingly, as the criteria for service connection for a kidney disorder and erectile dysfunction have not been met; the Veteran’s claims are denied. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In July 2011, the Veteran filed an increased rating claim for the residuals of a right varicocele ligation, which was denied in a December 2012 rating decision. The Veteran asserts that he is entitled to a higher rating. The Veteran’s residuals from a right varicocele ligation are rated under 38 C.F.R. § 4.4115 (b), Diagnostic Code 7525, which evaluates residuals from a right varicocele ligation based on urinary tract infection under Ratings of the Genitourinary System – Dysfunctions. Thereunder, a 10 percent rating is assigned for long-term drug therapy, one to two hospitalizations per year, and/or requiring intermittent intensive management. A 30 percent rating is assigned for recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. 38 C.F.R. § 4.4115b, Diagnostic Code 7525. The Veteran’s medical records do not document any urinary tract infections. In December 2011, the Veteran was afforded a VA examination. The examiner indicated that the Veteran did not have recurrent urinary tract infections secondary to obstruction. Thus, applying the regulations to the facts in the case, the Board finds that the criteria for a disability rating in excess of 10 percent are not met for the Veteran’s residuals from a right varicocele ligation. The Veteran does not have recurrent symptomatic infection requiring drainage/frequent hospitalization, and/or requiring continuous intensive management. As such, a rating in excess of 10 percent is not warranted. The Board has considered all other potentially applicable Diagnostic Codes, but has found that no other Diagnostic Codes would result in more favorable findings. As such, the schedular rating criteria reasonably describe the symptoms caused by the service-connected disability on appeal. The criteria for a schedular rating in excess of 10 percent for the Veteran’s residuals from a right varicocele ligation have not been met and his claim is denied. REASONS FOR REMAND Regarding the Veteran’s service connection claim for an acquired psychiatric disorder, the Veteran’s medical records show that he has been diagnosed with adjustment disorder and depressive disorder. Specifically, in January 2009, he was diagnosed with adjustment disorder related to his physical limitations. While the Veteran was afforded a VA examination in November 2012, he should be afforded a new VA examination to determine the etiology of any current acquired psychiatric disorder. Regarding the Veteran’s increased rating claim for a lumbar spine disability, the Veteran was last afforded a VA examination in December 2011. However, the Veteran’s medical records show that he was diagnosed with radiculopathy in March 2010. In April 2010, he reported having lumbar spine pain that radiated into his left lower extremity. In January 2011, he reported having lumbar spine pain that radiated into his right lower extremity. As such, a remand is required to provide a new examination and determine if the Veteran has lumbar spine radiculopathy. 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. Thereafter, arrange for the Veteran to be afforded an examination by an appropriate clinician to determine the nature and likely etiology of any acquired psychiatric disorder. The examiner should provide opinions responding to the following: a. What psychiatric diagnoses does the Veteran currently manifest? b. For each psychiatric disorder diagnosed, please provide an opinion as to whether such at least as likely as not (50 percent or better probability) either began in or was otherwise caused by the Veteran’s active service. c. For each psychiatric disorder diagnosed, please provide an opinion whether it is as at least as likely as not (50 percent or greater) that such psychiatric disorder was caused by a service-connected disability? Why or why not? d. For each psychiatric disorder diagnosed, please provide an opinion whether it is as at least as likely as not (50 percent or greater) that such acquired psychiatric disorder was aggravated (made worse) by a service-connected disability? Why or why not? If aggravation is found, the examiner should determine whether the condition was aggravated beyond the natural progression of the disorder. The examiner is also requested to attempt to establish the baseline level of severity of the acquired psychiatric disability by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the acquired psychiatric disability. 3. Schedule the Veteran for a VA examination to determine the current severity of his lumbar spine disability and any residuals associated therewith, to include radiculopathy. In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the report include results of active and passive motion, in addition to the results following repetitive motion testing. If it is not possible to complete any of the range of motion testing described above, it should be explained. 4. Then, after any other indicated development is completed, the Veteran’s claims should be readjudicated. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before returning the case to the Board for further appellate action. 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). These claims 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. 38 U.S.C. §§ 5109B, 7112 (2012). K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel