Citation Nr: 18159034 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-46 872 DATE: December 18, 2018 ORDER Entitlement to service connection for a sleep disability is denied. Entitlement to service connection for erectile dysfunction is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for pancreatitis is remanded. Entitlement to service connection for diabetes mellitus, type 2, is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. FINDINGS OF FACT 1. The Veteran has not had a diagnosis of a sleep disability at any point during the appellate period. 2. The Veteran has not had a diagnosis of erectile dysfunction at any point during the appellate period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a sleep disability have not been met. 38 U.S.C. §§ 1110, 1113 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). 2. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. See 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a sleep disability. 2. Entitlement to service connection for erectile dysfunction. The Board finds that the weight of the evidence does not establish a diagnosis of a sleep disability or erectile dysfunction. There is no competent evidence of disabilities manifested by sleep impairment or erectile dysfunction. In so finding, the Board has reviewed the Veteran’s service treatment records. They are silent for any complaints, treatment or diagnosis of any sleep disorder or erectile dysfunction. The Board has also reviewed the Veteran’s post-service medical records. There is simply no evidence of record of any diagnosis of a sleep disability or of erectile dysfunction at any point during the appellate period. The Board acknowledges the Veteran’s lay statements of record. Notably, the Veteran reported sleep disturbance as a symptom of his depressive disorder. In addition, a September 2014 private mental impairment questionnaire attributed the Veteran’s reported sleep disturbance to his diagnosed major depressive disorder. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. § 4.14 (2018); Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a decision is whether any of the symptomatology is duplicative or overlapping; the appellant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, 6 Vet. App. at 262. The Veteran has not submitted or identified evidence of a diagnosis of a stand-alone sleep disability at any time during the current appeal. He has further submitted no evidence of a diagnosis of erectile dysfunction. As noted, the weight of the competent and credible evidence shows that the Veteran does not have a separate disability manifested by sleep impairment other than depressive disorder, and does not have a diagnosis of erectile dysfunction. The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a sleep disability or of erectile dysfunction, service connection for the disorders cannot be awarded. See id.; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability). The preponderance of the evidence is against the claims, and therefore, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for diabetes mellitus, type 2, is remanded. 4. Entitlement to service connection for headaches is remanded. 5. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. 6. Entitlement to service connection for pancreatitis is remanded. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2018). The McLendon elements are satisfied with regard to the Veteran’s claimed left knee and right knee disabilities. Regarding the first element, a February 2014 physical therapy note reflects that the Veteran has bilateral degenerative joint disease of the knees. Regarding the second element, the Board notes that the Veteran’s MOS was that of bridge crewman – involving significant strain on the joints. Regarding the third and fourth elements, there is an indication that the Veteran’s bilateral knee disability could be related to service, but there is insufficient evidence of record by which the Board can make a decision. Specifically, multiple physicians have noted that the Veteran’s knee disability is chronic and longstanding, and the Veteran has indicated that his knee problems began in service and have continued thereafter. However, the Veteran was not afforded a VA examination to determine the nature and etiology of his bilateral knee disability, and the Board affords the Veteran every benefit of the doubt. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination. The McLendon elements are also satisfied with regard to diabetes mellitus. Regarding the first element, an April 2018 VA treatment note reflects that the Veteran has a current diagnosis of diabetes. Regarding the second McLendon element, a hospital discharge report dated in March 2011 reflects that the Veteran’s diabetes mellitus may be related to his pancreatitis, which is also being remanded herein. Indeed, the Veteran was not afforded a VA examination to assess the nature and etiology of his diabetes mellitus. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The McLendon elements are additionally satisfied with regard to the Veteran’s claimed headache disability. Regarding the first element, a private evaluation conducted in April 2018 reflects a diagnosis of tension headaches. The same private examiner indicates that the Veteran’s depressive disorder and symptoms caused by his pancreatitis—issues that are herein remanded—are a likely cause of his headaches. Regarding the third and fourth elements, there is an indication that the Veteran’s headache disability could be related to service or to a service-connected disability, but there is insufficient evidence of record by which the Board can make a decision. Indeed, the Board notes that the Veteran was not afforded a VA examination to determine the nature and etiology of his headache disability, and the Board affords the Veteran every benefit of the doubt. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The McLendon elements are further satisfied with regard to the Veteran’s claimed psychiatric disability. Regarding the first element, a September 2014 evaluation reflects a diagnosis of major depressive disorder. Regarding the second element, the Board notes that the Veteran reported in-service stressful events, including extreme variations in temperature, harsh training conditions, and limited sleep while training in the Mojave Desert. Regarding the third and fourth elements, there is an indication that the Veteran’s psychiatric disability could be related to service, but there is insufficient evidence of record by which the Board can make a decision. Specifically, the Veteran submitted a private evaluation in April 2018 indicating that his major depressive disorder is related to his time in service. However, the Veteran was not afforded a VA examination to determine the nature and etiology of his psychiatric disability, and the Board affords the Veteran every benefit of the doubt. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The McLendon elements are satisfied with regard to the Veteran’s claimed pancreatitis. Regarding the first element, a private evaluation conducted in April 2018 reflects a diagnosis of pancreatitis. The same private examiner indicates that the Veteran’s depressive disorder is a likely cause of his pancreatitis. Regarding the third and fourth elements, there is an indication that the Veteran’s pancreatitis could be related to service or to a service-connected disability, but there is insufficient evidence of record by which the Board can make a decision. Indeed, the Board notes that the Veteran was not afforded a VA examination to determine the nature and etiology of his pancreatitis, and the Board affords the Veteran every benefit of the doubt. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA and private treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral knee disability. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file and should note that this case review took place. After performing all necessary testing, the examiner must provide a diagnosis of all left or right knee disabilities found to be present. Attention is invited to the diagnoses of bilateral knee arthritis and degenerative joint disease. The examiner must provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that each diagnosed knee disability manifested in service or is otherwise etiologically related to service. The examiner’s attention is invited to the Veteran’s MOS of bridge crewman and his statements concerning symptoms. Please note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his pancreatitis. The examiner must opine as to whether it is at least as likely as not (probability of 50 percent) that the Veteran’s pancreatitis manifested in service or is otherwise etiologically related to service. The examiner must also opine as to the following: a. Whether it is at least as likely as not that the Veteran’s pancreatitis was caused by a psychiatric disability, or b. Whether it is at least as likely as not that the Veteran’s pancreatitis has been aggravated by a psychiatric disability. The examiner must specifically discuss the April 2018 private evaluation, as well as the Veteran’s reports. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diabetes mellitus. The examiner must opine as to whether it is at least as likely as not (probability of 50 percent) that the Veteran’s diabetes mellitus manifested in service or is otherwise etiologically related to service. The examiner must also opine as to the following: a. Whether it is at least as likely as not that the Veteran’s diabetes was caused by pancreatitis, or b. Whether it is at least as likely as not that the Veteran’s diabetes has been aggravated by pancreatitis. The examiner must specifically discuss the March 2011 VA treatment record and the April 2018 private evaluation, as well as the Veteran’s reports. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his headaches. The examiner must opine as to whether it is at least as likely as not (probability of 50 percent) that the Veteran’s headaches manifested in service or are otherwise etiologically related to service. The examiner must also opine as to the following: a. Whether it is at least as likely as not that the Veteran’s headaches have been caused by pancreatitis, and/or a psychiatric disability, or b. Whether it is at least as likely as not that the Veteran’s headaches have been aggravated by pancreatitis, and/or a psychiatric disability. The examiner must specifically discuss the April 2018 private evaluation, as well as the Veteran’s reports. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed psychiatric disorder. The examiner must opine as to whether it is at least as likely as not (probability of 50 percent) that the Veteran’s psychiatric disorder manifested in service or is otherwise etiologically related to service. The examiner must also opine as to the following: a. Whether it is at least as likely as not that the Veteran’s psychiatric disorder was caused by pancreatitis, or b. Whether it is at least as likely as not that the Veteran’s psychiatric disorder has been aggravated by pancreatitis. The examiner must specifically discuss the April 2018 private evaluation, as well as the Veteran’s reports. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel