Citation Nr: 18154476 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 16-23 758 DATE: November 30, 2018 ORDER Entitlement to service connection for gout is denied. Entitlement to service connection for a bilateral knee condition other than gout is denied. Entitlement to service connection for residuals of benzene exposure is denied. REMANDED Entitlement to service connection for low back pain is remanded. Entitlement to service connection for impotence, claimed as sexual dysfunction, is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that gout began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The evidence does not demonstrate that the Veteran currently has, or had at any time during the appeal period, a bilateral knee condition other than gout. 3. The evidence does not demonstrate that the Veteran has residual disability associated with in-service exposure to benzene. CONCLUSIONS OF LAW 1. The criteria for service connection for gout are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for entitlement to service connection for a bilateral knee condition other than gout are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 3. The criteria for service connection for residuals of benzene exposure are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1967 to August 1991. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for gout. The Veteran contends that he has gout as a result of service. See August 2016 Statement in Support of Claim. The Board concludes that, while the Veteran has a current diagnosis of gout, the preponderance of the evidence is against a finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are negative for any complaints of, diagnoses of, or treatment for gout. On his July 1991 report of separation, a clinical evaluation of all systems was normal. The Veteran does not assert that his gout is related to any specific injury incurred in service. To the extent he now argues that he experienced symptoms related to gout during service and continuously to this day, the Board finds such assertions to lack credibility based on observations that (1) the Veteran had a “normal” clinical evaluation of the upper and lower extremities at his retirement examination in July 1991; (2) he specifically denied experiencing swollen or painful joints; arthritis rheumatism or bursitis; bone, joint or other deformity; lameness; painful shoulders, elbows, or back; a trick or locked knee; or foot trouble on his July 1991 Report of Medical History upon his retirement from service; and (3) post-service, he specifically reported at a June 15, 2012 consultation with Dr. R.W.L. that he had a history of gout “starting approximately two years ago when he developed pain in the great toe and ankle of the right foot.” The Board places greater weight of probative value on the history the Veteran presented to medical professionals for treatment purposes (i.e., during active service and years thereafter) that it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). In addition, the Veteran’s history of prior inconsistent statements weigh against his credibility. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board acknowledges the Veteran’s contention that he has not been afforded a VA examination regarding his claim for service connection for gout. In this case, the Board finds that a VA examination for gout is not necessary, as there is no credible evidence that the Veteran exhibited symptoms of gout during his military service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service). Insofar as the Veteran has argued that he did not go to sick call because of threats by superiors of deportation, see October 2011 Statement in Support of Claim, the Board observes that while there are limited service records showing treatment from 1967 to 1975, there are extensive notations of visits to sick call from 1975 to 1991. Gout has not been identified in service, and the evidence of record is against a finding that any pain symptoms noted during service are related to in-service onset of gout, for the reasons discussed above. While the Veteran himself may believe that his gout is related to service, he is not competent to provide a nexus opinion in this case. The etiology of the Veteran’s disability is a complex medical question that involves internal and unseen system processes unobservable by the Veteran, and the Veteran is not shown to have the medical expertise required to provide an opinion linking his gout to service. For these reasons, the preponderance of the evidence is against the claim of entitlement to service connection for gout. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a bilateral knee condition other than gout. The Veteran claims that he has a bilateral knee condition other than gout that is due to service. While the Veteran did report occasional discomfort in his knees on a September 1988 Report of Medical History, the evidence of record does not demonstrate that the Veteran has a current right or left knee disability for which service-connection may be granted. The Board recognizes that on a December 5, 2012 VA Primary Care Follow Up Note, it was noted that the Veteran experienced severe attacks of gout, especially at the knees, but the Board has denied entitlement to service connection for gout for the reasons discussed above. There is no other indication that any disability of the knees other than gout exists. Notably, at a June 15, 2012 Consultation with Dr. R.W.L., the Veteran’s knees were assessed. At the time, the Veteran’s knees were cool without effusion, crepitus, pain on, or restriction of motion. There was no subtalar or tibiotalar warmth, swelling, or discoloration or effusions. Subsequently, in another progress note from Dr. R.W.L. dated September 13, 2017, the Veteran’s knees were examined, showing no warmth, effusion, pain on or limitation of motion of either knee, no crepitus, no ligamentous or meniscal abnormality, and no subtalar or tibiotalar abnormality. A March 2018 letter from the Veteran’s long-term provider, Dr. A.N.T. listed the conditions for which he treated the Veteran, which included low back pain, but did mention any knee disability. The Veteran and his attorney have generally contended that the Veteran warrants service connection for a knee disability, but have not made any more specific assertions as to the nature of the knee disability or whether any pain symptoms cause functional impairment. Indeed, the Board has considered the Court of Appeals for Veterans Claims recent holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), and finds that while the Veteran has been noted to have knee pain due to nonservice-connected gout, the evidence cited above fails to identify any functional impairment of either knee such that a disability for VA purposes is shown. The threshold requirement for service connection is competent evidence of the current existence of the claimed disorder. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Without evidence of a knee condition other than gout at any time during the period on appeal, service connection cannot be granted. As noted above, the evidence is against a finding that the Veteran suffers from functional impairment of the knees. For these reasons, the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral knee condition other than gout. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for residuals of benzene exposure. The Veteran has asserted that he has residual disability due to in-service exposure to benzene. See August 2011 Veterans Application for Compensation or Pension. Neither he, nor his attorney have specified what residuals of such exposure exist, if any. A claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. See 38 U.S.C. § 5107 (2012). Insofar as no residuals have been alleged by the Veteran, and the evidence of record does not otherwise contain indication or suggestion of a link between any current disability and benzene exposure, the Board will deny the appeal. To the extent the Veteran has independently alleged that he suffers from residuals of in-service herbicide exposure, specifically identifying breathing and sleeping problems to include sleep apnea, this contention will be discussed in the Remand section below. REASONS FOR REMAND 1. Entitlement to service connection for low back pain. 2. Entitlement to service connection for impotence, claimed as sexual dysfunction. Service treatment records show that the Veteran was involved in a motor vehicle accident in April 1977, after which he complained of pain in his low back. Though the Veteran’s July 1991 separation examination does not show that the Veteran continued to suffer from back pain, the Veteran has continued to assert that his current back pain stems from his time in service, to include as due to his duties which required him to be in a “laboring position,” cleaning ships and barracks and lifting projectiles that weighed 55 pounds. See March 2018 Correspondence. Given the Veteran’s lay statements, current treatment for a low back condition, and the instance of documented low back pain following a motor vehicle accident in service, the Board finds that the Veteran should undergo an examination. The Veteran’s attorney has submitted that the Veteran’s claimed impotence is potentially related to his low back condition. See March 2018 Correspondence. Because the Board is remanding this appeal in part so that the Veteran may be scheduled for a back examination, and at that examination associated neurological impairment will be assessed, the Board will defer adjudication of the issue of impotence pending the results of the examination ordered on remand. 3. Service connection for obstructive sleep apnea is remanded. 4. Service connection for hypertension is remanded. The Veteran and his attorney have asserted that the Veteran’s diagnosed sleep apnea had in-service onset, or is otherwise related to in-service exposure to herbicides (asserting breathing and sleep problems, due to such exposure). The Veteran has contended that in 1989, in service, his roommate at the time repeatedly told the Veteran that he snored and occasionally stopped breathing in his sleep. He said he ignored the breathing incidents until he retired from service, when his wife told him the same thing. See April 2018 Correspondence. The Veteran is competent to attest to what his fellow service member and wife told him. Service treatment records note a history of fatigue in November 1987. On remand, an examination should be scheduled, and an opinion obtained addressing the etiology of the Veteran’s sleep apnea disability. The Board adds that the Veteran served aboard the USS Rich, which has been noted by VA on its list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents as having docked to pier at Da Nang on December 13, 1972. The Veteran’s service records confirm service aboard the USS Rich on that date, and the Board finds no reason at this time to call into question his assertion that he took trash off the ship when docked, touching ground on mainland Vietnam. With respect to currently diagnosed hypertension, the Veteran stated that he first learned in 1992 from his family doctor that he had hypertension. For some chronic diseases, including hypertension, presumptive service connection is available if the disease became manifest to a degree of 10 percent within 1 year from date of termination of such service. 38 C.F.R. §§ 3.307, 3.309(a). Given the Veteran’s contention that he was diagnosed with hypertension in 1992 and his separation from service in 1991, the Veteran should be given an opportunity to provide private treatment records he may have in his possession related to hypertension treatment, or authorize VA to obtain them on his behalf. In the alternative, the Veteran has argued that his hypertension has been caused or aggravated by sleep apnea, and has submitted an Internet article in support. An examination and opinion as to the etiology of the Veteran’s hypertension should also obtained on remand. The matters are REMANDED for the following action: 1. Send the Veteran a letter requesting that he submit any relevant treatment records he has in his possession pertaining to private treatment from his family doctor in 1992 for hypertension. The Veteran may also authorize VA to request and obtain such records on his behalf upon completion of a VA Form 21-2142 (Authorization and Consent to Release Information to the Department of Veterans Affairs). 2. Obtain any outstanding VA records of care. 3. Schedule the Veteran for a VA examination with a qualified examiner to address the nature and etiology of his low back condition. The claims file should be made available to, and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should take a history from the Veteran as to the progression of the claimed disability. After review of the file, interview and examination of the Veteran, the examiner is asked to address the following: (a.) Identify all low back disabilities. If no diagnosis is shown, the examiner must still consider pain manifesting in functional impairment as a disability for VA purposes. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any low back disability had onset in, or is otherwise related to the Veteran’s military service, to include the Veteran’s April 1977 motor vehicle accident, or strenuous lifting required in performance of his duties as he has so described. (c.) In particular, upon examination of the spine, the examiner should identify all neurological impairment associated with the low back disability, to specifically include any associated erectile dysfunction, if present. If it is at least as likely as not that associated neurological impairment exists, the examiner should assess the severity of that impairment. 4. Schedule the Veteran for a VA examination with a qualified examiner to address the nature and etiology of his sleep apnea. The claims file should be made available to, and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his sleeping problems. Following review of the file, interview and examination of the Veteran, the examiner is asked to address the following: Is it at least as likely as not (50 percent or greater probability) that obstructive sleep apnea had onset in, or is otherwise related to the Veteran’s period of military service, to include in-service herbicide exposure and/or in-service collapsed lungs after a 1977 motor vehicle accident? For purposes of this opinion, the examiner should accept as true that the Veteran was exposed to herbicide agents in service. The examiner should consider the Veteran’s statement that he was told in service about snoring and stopped breathing while sleeping. The opinion provided should be supported with a medical explanation or rationale. 5. Schedule the Veteran for a VA examination with a qualified examiner to address the nature and etiology of his hypertension. The claims file should be made available to, and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his hypertension. Following review of the file, interview and examination of the Veteran, the examiner is asked to address the following: (a) Is it at least as likely as not (50 percent or greater probability) that hypertension had onset in, or is otherwise related to the Veteran’s period of military service, to include in-service herbicide exposure? For purposes of this opinion, the examiner should accept as true that the Veteran was exposed ot herbicide agents in service. The examiner should consider the Veteran’s statement that he was first diagnosed with hypertension in 1992. (b) Notwithstanding the above, is it at least as likely as not that the Veteran’s hypertension was caused or aggravated beyond its natural progression by his sleep apnea disability? The examiner should consider the Internet article provided by the Veteran in support of this association. The opinions provided should be supported with a medical explanation or rationale. 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel