Citation Nr: 18154954 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 10-45 370 DATE: December 3, 2018 ORDER Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected diabetes mellitus, posttraumatic stress disorder (PTSD), sciatic nerve peripheral neuropathy of the bilateral lower extremities, femoral nerve peripheral neuropathy of the bilateral extremities, and medications for these service-connected disabilities, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, PTSD, sciatic nerve peripheral neuropathy of the bilateral lower extremities, femoral nerve peripheral neuropathy of the bilateral extremities, and medications for these service-connected disabilities, is granted. REMANDED The claim of entitlement to an initial rating for in excess of 50 percent for service-connected PTSD is remanded. FINDINGS OF FACT 1. A gastrointestinal disorder, including irritable bowel syndrome, gastroesophageal reflux disease, hiatal hernia, gastritis, and colonic polyps, did not have onset in service, is not otherwise related to service, and is not caused or aggravated by a service-connected disability. 2. The Veteran’s erectile dysfunction was caused by his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for gastrointestinal disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 2. The criteria for service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to August 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO): an October 2009 rating decision granting service connection for PTSD and assigning a 50 percent rating, effective April 27, 2009; and an August 2010 rating decision denying service connection for erectile dysfunction, GERD, and IBS. These matters were previously before the Board in September 2015, July 2016, and September 2017 when they were remanded for additional development. In a May 2018 letter, the Veteran’s treating physician indicated that the Veteran had been diagnosed with advanced hepatobiliary dysfunction or cirrhosis and had a six to 12-month prognosis. Accordingly, the Veteran’s representative requested that the case be advanced on the docket in an October 2018 correspondence. The Board grants the request. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C. § 7107(a)(2) (2012). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases, including erectile dysfunction, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive 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. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Last, service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2018). 1. Entitlement to service connection for a gastrointestinal disorder In his January 2010 claim, the Veteran contended that he had IBS and GERD that were secondary to stress caused by his service-connected PTSD. In his July 2016 appellate brief, the Veteran asserted that his gastrointestinal disorders were caused or aggravated by the service-connected of diabetes mellitus, sciatic nerve and femoral nerve peripheral neuropathy of the lower extremities, and PTSD. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). VA examinations and opinions provided in June 2010, January 2016, January 2017, and March 2018 document diagnoses of colonic polyps, irritable bowel syndrome (IBS), gastroesophageal reflux disease (GERD), and a hiatal hernia. Second, the Board finds that there was an in-service injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Before discussing the in-service history, the Board notes that the Veteran has only claimed entitlement to service connection on a secondary theory. Because in-service gastrointestinal symptoms were noted, however, the Board has developed this claim on a direct theory as well. In an August 1967 service entrance report of medical history, the Veteran reported a history of frequent indigestion and stomach, liver, or intestinal trouble. On the August 1971 separation examination report, the Veteran was noted to have a history of indigestion since January 1967. An upper gastrointestinal series was noted to have been conducted in August 1968 for a history of indigestion and coughing up blood in the spring of 1967. The tests were found negative. The in-service element is met. Third, the Board finds that the evidence of record does not support a finding that the Veteran’s gastrointestinal disorders are related to active service or caused or aggravated by the Veteran’s service-connected PTSD, diabetes mellitus, type II, neuropathies of the lower extremities, or medications taken for those disabilities. Significant development has been undertaken to address the Veteran’s various assertions. The Veteran submitted a January 2002 private treatment record showing that the he had suffered from peptic ulcer disease and GERD for years. No etiological opinion was rendered for these diagnoses. A September 2002 private treatment note documents an esophagogastroduodenoscopy and biopsies. The procedure showed antral gastritis and mild GERD. VA provided an examination in June 2010. The Veteran related that he first had GERD in 1974, after service, and IBS in the mid-1970s, but was not diagnosed until 1982. In the opinion, the examiner opined that IBS and GERD were not caused by or a result of service or secondary to service-connected PTSD. As rationale, the examiner merely stated that the preponderance of the medical evidence did not support this nexus. In September 2015, the Board noted that the Veteran’s STRs suggested that the Veteran had reported gastrointestinal symptoms prior to his service and that, consequently, the June 2010 VA examination was based on the inaccurate premise that the Veteran’s gastrointestinal complaints had started after service. Thus, another examination was obtained. In a January 2016 opinion, a VA examiner found that the Veteran had present diagnoses of hiatal hernia, GERD, gastritis, IBS, and colonic polyps. The examiner opined that it was less likely than not that these conditions were caused by or a result of any pre-service gastrointestinal symptoms or caused by or the result of service. The examiner explained that upper gastrointestinal examinations in October 1967 and August 1968 were negative for any of the Veteran’s diagnoses, and these conditions were diagnosed more than 9 years after his separation from service. The examiner then opined that it was less likely than not that the Veteran’s diagnosed gastrointestinal disorders were caused by or the result of, or aggravated by his PTSD. There was a lack of a causal nexus, explained the examiner, and the Veteran’s symptoms were clearly documented as controlled, despite ongoing significant PTSD, which weighed against there being aggravation. The examiner explained that the etiology of the Veteran’s GERD was as likely as not his hiatal hernia. The examiner explained that the Veteran’s gastritis was as likely as not caused by hypersecretion of acid in the stomach. Regarding the Veteran’s IBS, the examiner opined that it was less likely than not that IBS was caused by or a result of any pre-service or in-service gastrointestinal symptoms because the STRs were silent for IBS. The examiner explained that IBS was diagnosed in the early 1980s or possibly later, more than 10 years post-service. The examiner explained further that IBS is a diagnosis of exclusion of pathology of the intestines, and so it was less likely than not that any event in service is the etiology of IBS. The examiner next opined that it was less likely than not that IBS was caused by or a result of, or aggravated by the Veteran’s PTSD because of the lack of a medical nexus and because IBS symptoms were clearly documented as controlled, despite ongoing significant PTSD. Regarding the diagnosis of colonic polyps, the examiner opined that the disorder was less likely than not caused by or the result of any symptoms pre-service or in-service and was not proximately due to or the result of, or aggravated by, the Veteran’s service-connected PTSD. The examiner explained that colonic polyps were diagnosed in 2004, more than 30 years post-service. Further, there was no nexus to connect PTSD with the polyps and the polyps had not recurred despite ongoing PTSD. Further, noted the examiner, the etiology of colon polyps was unknown unless it was hereditary, which in the Veteran’s case it was not. VA provided another opinion in January 2017. The examiner that it was less likely than not that the Veteran’s hiatal hernia, GERD, gastritis, IBS, and colonic polyps were caused by or the result of, or aggravated by the Veteran’s service-connected disabilities. Regarding hiatal hernia/GERD/gastritis, the examiner explained that these conditions were diagnosed in 1982, and the Veteran’s PTSD, diabetes, and secondary neuropathy in the lower extremities had been diagnosed many years later. The examiner further explained that the medical expertise does not currently exist to predict the progression of hiatal hernias, GERD, and gastritis in individuals. As such, there was no objective evidence to support worsening beyond the natural progression by diabetes, neuropathy, or medications for these conditions. Further, noted the examiner, in the absence of documented gastroparesis, the diabetes does not contribute to GERD. Regarding IBS, the examiner explained that the condition was diagnosed in 1982, many years before diabetes and secondary neuropathies were diagnosed. IBS was not caused by or a result of PTSD because IBS was diagnosed in 1982, and the psychosocial symptoms were first documented in 2002. Further, the medications for these conditions were not a recognized etiology of IBS. The examiner explained that condition is a gastrointestinal disorder characterized by chronic abdominal pain and altered bowel habits in the absence of any organic cause. Finally, the examiner noted that the medical expertise does not currently exist to predict the progression of IBS in individuals. As such, there was no objective evidence to support worsening beyond the natural progression of IBS by diabetes, secondary neuropathy, PTSD, or medications for these conditions. Regarding colonic polyps, the examiner noted that diabetes, neuropathy, PTSD, and medications for these conditions were not recognized causes of colon polyps. Advanced age is a major risk factor, the examiner explained. The examiner noted that the medical expertise does not currently exist to predict the progression of colonic polyps in individuals. As such, there was no objective evidence to support worsening beyond the natural progression of IBS by diabetes, secondary neuropathy, PTSD, or medications for these conditions. In a March 2018 opinion, a VA examiner opined that the claimed GERD, IBS, colonic polyps, and hiatal hernia were not caused by or aggravated by military service. The examiner noted that there were events of abdominal pain that were treated as a possible duodenal ulcer while in service, and the symptoms resolved without sequels. These symptoms could not cause any of the Veteran’s claimed conditions. An etiological nexus could not be supported by any current peer reviewed medical literature. First, the Board notes that the Veteran is presumed sound with regard to any gastrointestinal disorders on entry into active service. Though he noted a history of stomach issues and indigestion in August 1967 on the Report of Medical History, no findings were noted on examination. Further, the Veteran’s own report does not constitute clear and unmistakable evidence that a gastrointestinal disorder pre-existed service. 38 U.S.C. §§ 1101 (2018). In any event, the evidence preponderates against a finding that the Veteran’s current symptoms had onset in or are otherwise related to his service. In particular, the March 2018 VA opinion addressed the pertinent in-service events and provided an adequate explanation to support the negative nexus opinion. Accordingly, the Board assigns the opinion significant probative weight. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). Similarly, the January 2016 and January 2017 opinions support a finding that the Veteran’s gastrointestinal diagnoses are not caused or aggravated by the Veteran’s service-connected PTSD, diabetes mellitus, and associated neuropathies, or the medications for those disabilities. The examiner similarly provided detailed explanations to support their conclusions. The opinions also reflect consideration of the Veteran’s arguments and medical literature submitted to support his claim. In contrast, the only evidence that purports to link the Veteran’s gastrointestinal disorders to his service or service-connected disabilities are his own statements. In this regard, the Board finds the Veteran’s lay statements to be not competent. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, the specific etiology of specific gastrointestinal disorders, which are internal medical processes not capable of lay observation, is clearly distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Regardless, the Veteran’s assertions are outweighed by the medical evidence of record, which is more probative as it is based upon medical expertise. In conclusion, the Board finds that service connection is not warranted on direct and secondary theories of entitlement. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for erectile dysfunction In his January 2010 claim, the Veteran claimed that erectile dysfunction was secondarily related to his service-connected diabetes mellitus, type II. In a July 2016 appellate brief, the Veteran asserted his erectile dysfunction was secondarily related to his service-connected PTSD, coronary artery disease, sciatic nerve peripheral neuropathy of the bilateral lower extremities, and femoral nerve peripheral neuropathy of the bilateral lower extremities. Because the Board grants service connection on a secondary basis due to the Veteran’s diabetes, the other service-connected disorders will not be discussed herein. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Private treatment records from March 2001 document the Veteran presenting in March 2001 to have his cholesterol checked. He presented with complaints of increased weight, decreased muscle mass and physical activity, prostate problems, and sexual function changes over the previous year. Significantly, follow-up testing revealed a diagnosis of diabetes mellitus in April 2001. His treatment provider indicated in an April 2010 correspondence that he had treated the Veteran had for erectile dysfunction and diabetes mellitus since that time. Second, the Board resolves reasonable doubt in the Veteran’s favor and finds that his erectile dysfunction was caused by his service-connected diabetes mellitus. Allen v. Brown, 7 Vet. App. at 448; 38 C.F.R. § 3.310. The Board notes that there has been significant development of this issue and that there are conflicting opinions of record. In a June 2010 VA examination, the examiner noted that the Veteran’s erectile dysfunction had onset in 2000. Because erectile dysfunction pre-existed the Veteran’s diabetes mellitus, type II, which was diagnosed in April 2001, the examiner opined that it was not caused by or related to diabetes. In a December 2010 VA examination for diabetes, an examiner again noted that the Veteran’s erectile dysfunction preceded diabetes. The examiner also identified the Veteran’s known risk factors for erectile dysfunction as natural aging, hypertension, dyslipidemia, and diabetes mellitus. The examiner opined that it was less likely than not that erectile dysfunction was caused by or related to service or a service-connected condition. These opinions do not address the 2001 private medical evidence that indicates that these symptoms began around the same time. In a January 2016 opinion, a VA examiner opined that it was as likely as not that the etiology of the Veteran’s erectile dysfunction was his aging and hyperlipidemia because he had these conditions at the onset of erectile dysfunction and they are recognized causes of erectile dysfunction. The examiner also opined that it was less likely than not that the Veteran’s erectile dysfunction was aggravated beyond its natural progression by diabetes because the progression of the Veteran’s erectile dysfunction was consistent with his advancing age. This opinion also ignored the relevant private medical evidence. Most recently, in a March 2017 VA examination, an examiner opined that it was less likely than not that erectile dysfunction as caused by or a result of service connection diabetes, neuropathy of the lower extremities, PTSD, or medications for these conditions. The examiner also opined that the medical expertise does not currently exist to predict the progression of erectile dysfunction in individuals and there was no objective evidence to support that service-connected diabetes, secondary neuropathy of the lower extremities, PTSD, or the medications for these conditions, worsened erectile dysfunction beyond its natural progression. The examiner explained that after age 55 years, the vast majorities had erectile dysfunction due to natural age-related degeneration of the male organs. Forty percent of males have age related erectile dysfunction onset in their early 40s with further age-related progression. In support of his claim, the Veteran submitted an April 2010 letter from Dr. JDS, who had been his physician since March 2001. Explaining the Veteran’s medical history, Dr. JDS noted that erectile dysfunction could be a complication of diabetes mellitus, type II. In March 2018, VA received an opinion from Dr. BDF, a board-certified urologist who had treated the Veteran since December 2015. Dr. BDF indicated that he was familiar with the Veteran’s medical history and had examined the Veteran on several occasions. Dr. BDF opined that the Veteran’s organic impotence, or erectile dysfunction, was highly likely the result of the Veteran’s diabetes mellitus. The Board accords the private opinion from March 2018 more weight than the VA opinions in finding that the Veteran’s erectile dysfunction was caused by his service-connected diabetes mellitus. Significantly, the VA opinions are all predicated on the assumption that the Veteran’s erectile dysfunction preceded his diabetes. The Board acknowledges that the Veteran was not diagnosed with diabetes until April 2001. However, as noted above, the diagnosis of diabetes was precipitated by the Veteran’s request for testing in March 2001 after a year of symptoms such as weight changes, muscle loss, and sexual function changes. The private treatment records from March 2001 demonstrate that the Veteran was seeking treatment for symptoms that had been present for a while. This undermines the VA examination findings that erectile dysfunction preceded diabetes. It corroborates the private opinions from the Veteran’s treating physicians, however. Because of this, the Board resolves reasonable doubt in the Veteran’s favor and finds that service connection is warranted for erectile dysfunction on a secondary basis. REASONS FOR REMAND Remand is required for the Veteran’s claim of entitlement to an increased initial disability rating for his PTSD for compliance with the prior Board remand. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1) (2018). A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the September 2017 remand, the Board directed that efforts be made to obtain outstanding records of private treatment. Specifically, of record is a March 2017 assessment from a licensed clinical social worker indicating that the Veteran had received psychiatric treatment with the provider since March 2016. The Veteran corroborated this account with a contemporaneous statement. Noting that these records were not associated with the Veteran’s file, the Board directed that efforts be made to obtain them on remand in September 2017. On remand, the Veteran submitted properly executed authorizations and releases for the procurement of these records in December 2017. With the authorizations and releases, the Veteran submitted a copy of the March 2017 assessment with an appended note that this record, among others submitted, did not represent the entirety of the records that exist. No attempts have been made to obtain these outstanding private records. As noted in the September 2017 remand, these records are necessary for appellate review. Absent compliance with the previous remand, the Board must again remand so they may be obtained. The matters are REMANDED for the following action: 1. In compliance with the prior Board remand from September 2017, contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Particularly, records from the medical practitioner, K.Y-D., must be requested. In December 2017, the Veteran submitted executed 21-4142 and 21-4142a forms for this treatment provider. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel