Citation Nr: 18152454 Decision Date: 11/23/18 Archive Date: 11/21/18 DOCKET NO. 15-10 903 DATE: November 23, 2018 ORDER Service connection for a low back disorder is denied. Service connection for a joint disorder, to include knee and elbow pain, is denied. Service connection for epilepsy is denied. Service connection for glaucoma is denied. Service connection for a prostate disorder is denied. REMANDED Entitlement to service connection for a chronic fatigue disorder. Entitlement to service connection for an acquired psychiatric disorder. Entitlement to a non-service connected pension. FINDINGS OF FACT 1. The Veteran had active service from June 1967 to January 1969. 2. A low back disorder was not identified or noted at the time of the Veteran’s entrance into active service; a low back disorder did not preexist active service. 3. A low back disorder was not shown in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, was not shown for many years after service, and is not causally or etiologically related to service. 4. A joint disorder, to include knee and elbow pain, and epilepsy were not shown in service, were not continuous since service, were not shown to a compensable degree within one year of separation from service, were not shown for many years after service, and are not causally or etiologically related to service. 5. Glaucoma was not shown in service and is not causally or etiologically related to service. 6. A prostate disorder, to include benign prostatic hypertrophy (BPH) was not shown in service and is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in or aggravated by active service. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). 2. A joint disorder, to include elbow and knee pain, was not incurred in service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.317 (2017). 3. Epilepsy was not incurred in service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.317 (2017). 4. Glaucoma was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.317 (2017). 5. A prostate disorder was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2015. A transcript of that hearing has been associated with the claims file. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Low Back Disorder In addition to the laws and regulations outlined above, veterans are considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into active service, except where clear and unmistakable evidence demonstrates that an injury or other disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. In cases where no conditions are noted upon entry into service, the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The “clear and unmistakable evidence” standard is a much more formidable evidentiary burden to meet than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254 (1999). It is “onerous,” and requires that the preexistence of a condition and no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116 (2003); Quirin v. Shinseki, 22 Vet. App. 390 (2009). If the government rebuts the presumption of soundness, then the veteran is not entitled to service-connected benefits but may claim service connection for aggravation of a preexisting disorder. If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. As an initial matter, the Veteran has not argued that his back disorder is secondary to a service-connected disability; therefore, secondary service connection will not be addressed. However, degenerative joint disease (DJD) is a chronic disorder under 38 C.F.R. § 3.309(a); therefore, presumptive service connection is for application. Additionally, he has argued that his current back disorder pre-existed his entrance into and was aggravated by active service. Accordingly, the presumption of soundness will be addressed. Finally, direct service connection will be considered. The Veteran has been diagnosed with a current low back disorder. Specifically, a June 2010 VA examination diagnosed lumbar degenerative disc disease (DDD), lumbar DJD, lumbar malalignment, and lumbar radiculitis. Accordingly, a current disorder has been shown and the first element of service connection has been met. As to a pre-existing disorder, on induction, the Veteran self-reported that he injured his back when he was 16 years old. Notably, a May 1967 pre-induction medical examination found his spine to be clinically normal. Furthermore, no medical records have been submitted to confirm a pre-existing low back disorder. The clear and unmistakable standard is a formidable evidentiary burden that has not been met in this case. It is onerous and requires that the pre-existence of a condition be supported by evidence that cannot be misunderstood or misinterpreted and is undebatable. The evidence submitted does not satisfy the clear and unmistakable evidence standard that is required to establish that a disorder pre-existed active service. Therefore, he is presumed to have entered active service in sound condition. Turning to direct service connection, a June 2010 VA examiner diagnosed multiple lumbar disorders, including DDD, DJD, malalignment, and radiculitis. Therefore, a current disorder is shown. Next, as to in-service incurrence, a review of the STRs does not contain complaints, treatment, or diagnoses of a low back disorder. Indeed, the Veteran’s spine was again found to be clinically normal in his January 1969 separation examination. Therefore, a chronic low back disorder was not noted in the STRs and the second element of direct service connection – in-service incurrence – has not been met. As such, the medical evidence does not support the claim for service connection on a direct basis. Turning to the one-year presumption, a low back disorder did not manifest to a compensable degree within a year of separation from service. In April and May 1979 letters, multiple doctors indicated that the Veteran was treated for a severe lumbosacral strain as early as April 1973. Even assuming that he developed a low back disorder in 1973, that is outside the one-year legal presumption for certain chronic diseases such as DJD. Therefore, the medical evidence does not support presumptive service connection. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted, the evidence shows that the Veteran’s symptoms began in 1973 at the earliest, 4 years after his separation from service. Therefore, a low back disorder was not shown until 1973, with documentation beginning in 1979. Accordingly, the medical evidence weighs against the claim for service of connection based on continuity of symptomatology. In addition, the June 2010 VA examiner opined that it was at least as likely as not that the Veteran’s low back disorder was aggravated by service. The examiner noted that the Veteran had an episode of back pain prior to service and that his pain increased while service as a gunner in Vietnam. However, a claim based on aggravation requires a pre-existing disorder. As discussed above, the evidence does not establish that Veteran’s low back disorder pre-existed his entrance into active service. Therefore, the June 2010 VA examination is of lesser probative value and the medical evidence does not support the aggravation claim. Joint Disorder and Epilepsy As an initial matter, the Veteran has not asserted that either his joint disorder or his epilepsy is secondary to a service-connected disability; accordingly, secondary service connection will not be considered for either claim. However, osteoarthritis and epilepsy are chronic diseases under 38 C.F.R. § 3.309(a); therefore, presumptive service connection and direct service connection will be addressed in both cases. Turning first to direct service connection, the Veteran has been diagnosed with a joint disorder and epilepsy. Specifically, December 2011 and August 2014 medical treatment notes diagnosed knee osteoarthritis. Similarly, July 2003 and August 2010 medical treatment notes diagnosed a seizure disorder. Accordingly, a current disorder has been shown and the first element of service connection has been met in both cases. A review of the Veteran’s STRs reveals that his upper extremities were found to be clinically abnormal in his May 1967 pre-induction examination. However, the clinician explained that he had a history of an old hand fracture, rather than a joint condition. Subsequently, his upper and lower extremities were found to be neurologically normal in his January 1969 separation examination and that he reported in a related Report of Medical History that he did not have or had not had a painful or trick shoulder or elbow, and a trick or locked knee. Further review of the Veteran’s STRs shows that he was found to be neurologically normal in his January 1969 separation examination and reported in a related report of medical history that he did not have or had not had epilepsy. As such, a joint condition and epilepsy were not noted in his STRs. Therefore, the second element of direct service connection – in-service incurrence – has not been met and the medical evidence does not support the appeals on a direct basis. Turning to the one-year presumption, a joint disorder did not manifest to a compensable degree within a year of separation from service. In May 2009, the Veteran complained of left knee pain with no catching, buckling, or locking, that subsequently resolved in October 2009. Ultimately, he was diagnosed with arthritis in his knees in December 2011. Similarly, in March 2003, April 2003, and July 2003 medical treatment notes, clinicians diagnosed a seizure disorder. In the July 2003 medical treatment note, the clinician noted that the Veteran had 4 seizures in the previous four years. Even assuming that he developed arthritis in his knees in 2009 and epilepsy in 1999, this is well outside the one-year legal presumption for certain chronic diseases such as osteoarthritis and epilepsy. Therefore, the medical evidence does not support the claims on the basis of presumptive service connection. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted, the evidence shows that the Veteran’s symptoms began as early as 2009 and 1999, 40 and 30 years after his separation from service, respectively. Therefore, a joint disorder was not shown until 2009, with documentation beginning the same year, and epilepsy was not shown until 1999, with documentation of epilepsy beginning in 2003. Accordingly, the medical evidence weighs against the claim based on continuity of symptomatology. Glaucoma As an initial matter, glaucoma is not a chronic disorder under 38 C.F.R. § 3.309(a); therefore, presumptive service connection is not for application. Additionally, the Veteran has not argued that his glaucoma was caused or aggravated by a service-connected disability; therefore, secondary service connection will not be considered. However, direct service connection will be addressed. Turning to the evidence, the Veteran was diagnosed with glaucoma in an April 2006 medical treatment note. Accordingly, a current diagnosis has been shown and the first element of service connection has been met. A review of the Veteran’s STRs shows that the Veteran’s eyes were clinically normal in his January 1969 separation examination and that he reported in an associated Report of Medical History that he did not have and had not had eye trouble. As such, glaucoma was not noted in his STRs. The Board further notes that in testimony before the undersigned Veterans Law Judge, the Veteran testified that he did not remember suffering an in-service eye injury. Therefore, the second element of direct service connection- in-service incurrence – has not been met, the medical evidence weighs against the claim on a direct basis. Prostate Disorder As an initial matter, while the Veteran has been diagnosed with a prostate disorder, he has not been diagnosed with a gastric or duodenal ulcer. Accordingly, his prostate disorder is not a chronic disorder under 39 C.F.R. § 3.309(a); therefore, presumptive service connection is not for application. Additionally, he has not argued that his prostate disorder is secondary to a service-connected disability. Therefore, secondary service connection will not be considered. However, direct service connection will be discussed. First, the Veteran has been diagnosed with a prostate disorder. Specifically, a May 2011 VA examination diagnosed with BPH. Accordingly, a current disorder has been shown and the first element of service connection has been met. A review of the STRs shows that on multiple occasions between June 1967 and October 1968, the Veteran complained of urethral discharge and slight dysuria and was diagnosed with nonspecific urethritis and intermittent discharge with dysuria. Subsequently, a December 1968 treatment note reveals that he complained of a month plus history of a skin lesion in his groin area. Therefore, an in-service incurrence has been shown and the second element of direct service connection has been met. As to medical nexus, in a May 2011 VA examination, the Veteran reported that he was treated for a sexually transmitted disease (STD) while in service. He complained that he had voiding problems with a frequently weaker urination stream and more frequent nocturia. He said that his prostate disorder caused him to wake up more frequently during the night. The examiner ultimately diagnosed BPH and opined that it was less likely than not related to his active service. The examiner remarked that while prostatitis can be associated with STDs in young men, the Veteran’s current voiding problems were indicative of BPH rather than an STD. In a subsequent May 2015 hearing before the undersigned Veterans Law Judge, the Veteran testified that he had a prostate disorder and that he was tired of waking up ten times per night. He said that he found his condition to be disgusting and that medication was needed to help his flow and urination. He noted that he did not have prostate problems in service. Based on the above, service connection is not warranted. In this regard, BPH has been diagnosed and STRs establish that the Veteran was treated for urethral discharge and a skin lesion. However, the medical evidence does not establish a nexus between his BPH and his in-service conditions. Therefore, the medical evidence does not support the claim for service connection. With respect to all the service-connection claims, the Board has considered the Veteran’s lay statements and sworn testimony, and statements from fellow servicemembers regarding the etiology and current severity of the disorders addressed above. Lay witnesses are competent to report symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, lay witnesses are not competent to offer opinions as to the etiology or current severity of any current disorder due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Therefore, the appeals are denied. Finally, the Veteran has not raised any other outstanding issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Non-Service Connected Pension: A review of the record indicates that April 2010 and March 2015 inquiries found that the Veteran was found eligible for Social Security benefits and began receiving benefits in September 2008 in amounts that ranged from $718.00 per month beginning September 2008 to $1108.00 per month beginning December 2014. However, the record is silent as to whether he has continued to receive Social Security benefits since December 2014 and the amount of any benefits he may have received. Additionally, further review of the record reveals that in a February 11, 2011 application for non-service connected pension, the Veteran asserted that his net worth was $302,050, including the value of real property outside of his home, that he received $760.00 per month in Social Security benefits, and that he expected to receive $10.00 per month over the succeeding 12 months from interest and dividends. In a subsequent March 9, 2015 accounting of expenses, the Veteran estimated his monthly expenses to be $2424 per month and his medical expenses to be $4,000 per year. However, data for his income is missing for the period between February 2011 and March 9, 2015 and the period following March 9, 2015. Accordingly, a remand is necessary to obtain Social Security Administration (SSA) records, to include the amount of any benefits received, beginning December 2014, and his income data for the period between February 11, 2011 and March 9, 2015 and the period following March 9, 2015. Acquired Psychiatric Disorder: In a July 2011 VA examination, the examiner diagnosed a mood disorder NOS and found that the Veteran did not meet the criteria PTSD. In a May 2012 medical treatment note, a clinician found that the Veteran met the full criteria for diagnoses of PTSD and bipolar disorder. Subsequently in May 2015 testimony before the undersigned Veterans Law Judge and a July 2015 buddy statement, the Veteran described the impact of his duties as a military police officer and a fellow servicemember described how the Veteran witnessed the death of a mutual friend. In light of the Veteran’s subsequent diagnosis of PTSD and testimony related to stressors, additional development should be undertaken to determine the nature and etiology of any currently present acquired psychiatric disability. Chronic Fatigue Disorder: The claim of service connection for chronic fatigue is inextricably intertwined with the pending claim asserting service connection for an acquired psychiatric disorder detailed above. Therefore, action on the claim must be deferred. The matters are REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA, private treatment, and SSA records, to include the amount of any SSA benefits received beginning December 2014, not already of record. 2. Request that the Veteran submit a complete report of his family’s income, net-worth, and expenses for each year from 2011 to 2018 (VA Form 5655), to include that of his spouse and dependent child if applicable. Additionally, request that he submit information as to any paid and unpaid medical expenses on a VA Form 21-8416 (Medical Expense Report) for each year from 2011 to 2018. 3. Schedule the Veteran for an examination to determine the nature and etiology of any currently present acquired psychiatric disability, to include a mood disorder, PTSD, and memory loss. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently present acquired psychiatric disability, to specifically include fatigue, a mood disorder, PTSD, and memory loss, is etiologically related to the Veteran’s active service. In forming the opinions, the examiner should address the May 2012 medical treatment notes, the Veteran’s May 2015 testimony, and the July 2015 buddy statement. The rationale for all opinions must be provided. 4. Then, readjudicate the claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel