Citation Nr: 18158689 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 15-20 138 DATE: December 18, 2018 ORDER Service connection for a right little finger disability is denied. Service connection for a lumbar spine disability is denied. Service connection for hypertension is denied. Service connection for erectile dysfunction is denied. Service connection for residuals of gynecomastia surgery is granted. Compensation under the provisions of 38 U.S.C. § 1151 for the residuals of dental work performed while in service is denied. Nonservice-connected pension benefits are granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a right finger disability due to a disease or injury in service. 2. The preponderance of the evidence is against finding that the Veteran has a lumbar spine disability due to a disease or injury in service. 3. The preponderance of the evidence is against finding that the Veteran has hypertension due to a disease or injury in service. 4. The preponderance of the evidence is against finding that the Veteran has erectile dysfunction due to a disease or injury in service. 5. The Veteran’s residuals of gynecomastia surgery began while in service. 6. The Veteran’s dental treatment received in service was not provided by a VA facility. 7. The Veteran is permanently and totally disabled from nonservice-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ring finger disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for residuals of gynecomastia surgery are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for compensation under 38 U.S.C. § 1151 for dental work completed during service have not been met. 38 U.S.C. § 1151, 5103, 5107; 38 C.F.R. § 3.361. 7. The criteria for an award of nonservice-connected pension benefits have been met. 38 U.S.C. §§ 1521, 1523; 38 C.F.R. § 3.321 (b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 2000 to November 2002. 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. Right little finger The Veteran contends that he suffers from a disability of the right little finger related to his service, however, he has not provided any report of injury to his finger in service or evidence that he currently suffers from a right little finger disability. The service treatment records do not reflect a right little finger disability, and the post-service treatment records do not demonstrate a current disability or any functional loss of the right little finger. Accordingly, because the elements of service connection have not been met, the Board finds that service connection for a right little finger disability must be denied. 2. A lumbar spine disability The Veteran contends that his current lumbar spine disability was caused or aggravated by his service. To that extent, the service treatment records demonstrate that the Veteran suffered from lower back pain during service. In August 2002, the Veteran had left-sided back and groin pain after lifting a heavy object. He was assessed to suffer from a lumbar sprain. Two weeks later, he reported ongoing back pain, though physical examination was normal. He was assessed to have mechanical lower back pain. On October 2002 separation examination, the Veteran reported a recurrent back problem. He had been treated in August 2002 but was still having pain. Post-service treatment records reflect that in October 2013, the Veteran was diagnosed with degenerative disc disease of the lumbar spine. In October 2014, a VA examiner interviewed the Veteran, conducted physical examination, and reviewed the service treatment records, finding that it was less likely than not that the Veteran’s lumbar spine disability was caused or aggravated by his service. The examiner explained that the treatment records showed no medical chronicity of care concerning the Veteran’s lumbar strain, nor was there evidence of functional limitation. The examiner further opined that while a sprain or strain to the back involved the muscles and ligaments of the spinal region, the Veteran’s current disability instead related to the degenerative process involving discs and vertebral bodies. These two processes were unrelated to one another. Because the Veteran’s lumbar spine disability was most likely related to the aging process, it was unlikely that it was caused or aggravated by the injury sustained in service. In this case, the Board finds that the 2014 VA opinion is competent, probative, and persuasive evidence against the Veteran’s claim. The examiner provided a medical rationale for the decision reached, and clearly explained that the injury sustained in service was of a different and unrelated pathology to the Veteran’s currently diagnosed low back disability. The Board notes that the Veteran has suffered from ongoing low back pain during the appeal period, and has considered his contentions that such is related to his service. However, the competent medical evidence does not support his contention that the sprain experienced in service is etiologically related to the current disc disease. In that regard, although the Veteran reported on psychiatric examination in 2009 that he had been discharged from service due to a back injury, such is inconsistent with the record. In the same document, he reported that he had served in Iraq, which is also inconsistent with the record. Furthermore, on 2014 VA examination, there was no indication of spasm or strain of the lumbar spine, and objective evidence of such has not been demonstrated in the VA treatment records. As explained on VA examination, there is a lack of indication of chronicity related to the in-service injury. Given the above, the Board finds that the evidence of record weighs against the Veteran’s claim, and service connection for a lumbar spine disability is not warranted. 3. Hypertension The Veteran contends that his hypertension is etiologically related to his service. However, a review of the service treatment records is negative for a diagnosis of hypertension or high blood pressure. On September 2017 VA examination, the examiner reviewed the service treatment records and found insufficient evidence to demonstrate hypertension while in service. The examiner noted that hypertension was not diagnosed until 2014. Therefore, it was less likely than not that hypertension was caused or aggravated by service. The Board finds that the competent, probative, and persuasive evidence of record is consistent with the 2017 VA opinion. Despite the Veteran’s report of a link between his current hypertension and service, the service treatment records and post-service treatment records do not support that claim. Accordingly, the Board finds that the weight of the evidence is against the Veteran’s claim, and service connection for hypertension is not warranted. 4. Erectile dysfunction The Veteran contends that his erectile dysfunction is etiologically related to his service. However, a review of the service treatment records is negative for a diagnosis of erectile dysfunction. The post-service treatment records also do not demonstrate continuity of symptoms since service or otherwise relate erectile dysfunction to service. Significantly, the Veteran has not reported a contention as to how his erectile dysfunction is related to service. Accordingly, service connection for erectile dysfunction is not warranted. 5. Residuals of gynecomastia surgery The service treatment records reflect that the Veteran underwent surgery to correct pre-existing gynecomastia in March 2001. The Veteran contends that he currently suffers from tenderness to the nipple and infrequent nipple discharge. An October 2014 VA examiner found that the Veteran’s gynecomastia pre-existed his service and was not aggravated by his service beyond its natural progression during service. However, given that the Veteran underwent surgery for this condition during service, and when considering his reported symptoms related to in-service treatment, the Board finds that the Veteran’s current residual symptoms are etiologically related to an event that occurred in service, and thus service connection for residuals of gynecomastia surgery is warranted. 6. 1151 claim The Veteran contends that dental work that he underwent while in service constitutes negligence under the criteria set forth pursuant to 38 U.S.C. § 1151. However, the Veteran did not undergo the contended treatment, removal of his wisdom teeth, at a VA facility. Thus, the claim cannot prevail under this regulation and must be denied. 7. Nonservice-connected pension The law provides that VA shall pay to each veteran of a period of war who meets the service requirements of this section (as prescribed in subsection (j) of this section) and who is permanently and totally disabled from nonservice-connected disability not the result of the Veteran’s willful misconduct, pension at the rate prescribed by this section. 38 U.S.C. § 1521 (a). Here, the Veteran’s DD Form 214 reflects that she served on active duty from April 2000 to November 2002, including service during the Persian Gulf War. Accordingly, the Veteran meets the service requirement for basic pension eligibility under 38 C.F.R. § 3.3. Next, “permanent and total disability” will be held to exist when an individual is unemployable as a result of disabilities that are reasonably certain to last throughout the remainder of that person’s life. 38 C.F.R. §§ 3.340 (b), 4.15. Pension cases must be adjudicated by applying both “objective” and “subjective” standards. Talley v. Derwinski, 2 Vet. App. 282, 285 (1992). A veteran may establish that he or she has a lifetime impairment which is sufficient to render it impossible for the “average person” to follow a substantially gainful occupation. 38 U.S.C. § 1502 (a)(1); 38 C.F.R. § 4.15. VA will consider a veteran to be permanently and totally disabled if he or she is a patient in a nursing home for long-term care due to disability, or determined to be disabled for SSA purposes. Pub. L. No. 107-103, Section 206(a), 115 Stat. 990 (Dec. 27, 2001). Otherwise, a finding of permanent and total disability based solely on objective criteria requires rating each disability under the appropriate diagnostic code of VA’s Schedule for Rating Disabilities, to determine whether the Veteran has a combined 100 percent schedular rating for pension purposes. Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992). Permanent and total disability evaluations for pension purposes will be authorized, provided other requirements of entitlement are met, for congenital, developmental, hereditary, or familial conditions, as well as for disabilities that require indefinite periods of hospitalization. 38 C.F.R. § 3.342 (b). Alternatively, a veteran may establish permanent and total disability for pension purposes even absent a combined 100 percent schedular evaluation by proving he or she has a lifetime impairment precluding him or her from securing and following substantially gainful employment. 38 U.S.C. §§ 1502, 1521(a); 38 C.F.R. § 4.17. However, if there is only one such disability, it must be ratable at 60 percent or more; if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 4.16 (a), 4.17. Finally, even if a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), the rating board should refer the claim to the Veterans Service Center Manager or the Pension Management Center Manager for extra-schedular consideration in all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of his or her disabilities, age, occupational background, and other related factors. See 38 C.F.R. § 3.321 (b)(2); 38 C.F.R. § 4.17 (b). In this case, the Veteran meets the minimum schedular criteria for consideration of nonservice-connected pension. For nonservice-connected pension purposes, he has been assigned a 50 percent rating for sleep apnea and a 30 percent rating for a psychiatric disorder, with a combined rating of 70 percent. The Board also finds that the evidence supports a finding that the Veteran’s psychiatric disorder causes a lifetime impairment precluding him from securing and following substantially gainful employment. The evidence demonstrates that the Veteran has not been employed throughout the appeal period generally due to his inability to work with others due to his psychiatric symptoms. In April 2018, a private psychologist opined that the Veteran’s progressive and debilitating mental health condition was severe enough that it precluded him from sustaining gainful employment. This opinion is supported by the record. In February 2015, the Veteran’s treating counselor stated that the Veteran had been hospitalized twice for psychiatric treatment since 2013, and had been diagnosed with schizoaffective disorder, major depression with psychosis, and anxiety. He suffered from hallucinations, anxiety, anger, and mood swings. The counselor opined that the Veteran was unable to work as his symptoms would prevent him from following directions, completing tasks and interacting with coworkers in an appropriate manner. Based upon these opinions, as well as a review of the record, the Board finds that the Veteran’s nonservice-connected psychiatric disorder likely causes a lifetime impairment that prevents his ability to follow substantially gainful employment. In that regard, there is no evidence to suggest that his countable income exceeds the threshold for an award of nonservice-connected pension. REASONS FOR REMAND 1. Left shoulder disability is remanded. The Veteran contends that his left shoulder disability is etiologically related to his service. The service treatment records reflect that the Veteran dislocated his left shoulder in August 2000. In October 2000 and then on October 2002 separation examination, he reported ongoing left shoulder pain. On September 2013 VA examination, the examiner found that the Veteran did not suffer from a current left shoulder disability, and therefore declined to offer the requested nexus opinion. However, the Veteran reported limited mobility of the shoulder and ongoing shoulder pain. Given that the Veteran suffers from some functional impairment of the left shoulder, a VA examination and opinion should be obtained to determine whether such impairment is related to his service. 2. An acquired psychiatric disorder is remanded. The Veteran contends that his psychiatric disorder is etiologically related to his service. It remains unclear whether the Veteran’s psychiatric disorder pre-existed his service and, if so, whether it was or was not aggravated by his service. Thus, the claim is remanded as further outlined in the directive below. 3. Sleep apnea is remanded. The Veteran contends that his sleep apnea was caused or aggravated by his psychiatric medications. Therefore, as this issue is intertwined with the claim for service connection for an acquired psychiatric disorder, it must be remanded and further developed as necessary. 4. TDIU is remanded. The Board finds that the issue of entitlement to a TDIU depends on the outcome of the remanded claims, and therefore that claim must also be remanded pending the outcome of those claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left shoulder disability (to include any functional impairment of the left shoulder). The examiner must opine whether a left shoulder disability or functional impairment of the left shoulder is at least as likely as not related to an in-service injury, event, or disease, including the August 2000 left shoulder dislocation. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The examiner must opine as to the following: Whether any currently diagnosed acquired psychiatric disorder (other than a personality disorder) clearly and unmistakably (i.e., it is undebatable) preexisted the Veteran’s service. The examiner should consider that prior to service, the Veteran was charged with assault and was placed in a sexual offender facility for an extended period, and that he was reportedly removed from community college for fighting prior to joining the service. If the examiner finds that any currently diagnosed acquired psychiatric disorder (other than a personality disorder) did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s report of being bullied and mistreated while he was in service, taking into consideration the in-service mental health records. 3. If, and only if, a positive VA opinion is obtained with regard to remand directive #2, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep apnea. The examiner must opine whether it is at least as likely as not caused or aggravated by the Veteran’s psychiatric disorder or medications taken for his psychiatric disorder. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Erdheim, Counsel