Citation Nr: 1808893 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 16-40 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for erectile dysfunction. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for cystitis by history (claimed as hematuria). 4. Entitlement to a compensable initial disability rating for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran had active service from March 1963 to March 1966. These matters come to the Board of Veterans' Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Evidence Intake Center in Newnan, Georgia. Jurisdiction over the Veteran's claims file was subsequently transferred to the Regional Office (RO) in Detroit, Michigan. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to a compensable initial disability rating for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Erectile dysfunction did not have its onset during active service and is not otherwise related to active service. 2. A left knee disability did not have its onset during active service or within one year of service discharge and is not otherwise related to active service. 3. Chronic cystitis (with a history of hematuria) did not have its onset during active service and is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 3. The criteria for service connection for cystitis by history (claimed as hematuria) have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist regarding the issues discussed herein. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). II. Service Connection - Erectile Dysfunction, Left Knee, Cystits (Hematuria) Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The U.S. Court of Appeals for Veterans Claims (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). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran claims entitlement to service connection for erectile dysfunction, a left knee disability, and cystitis by history (claimed as hematuria). Notably, service treatment records do not document any complaints, treatment, or diagnosis of erectile dysfunction or a left knee disability. While service treatment records document in-service treatment for cystitis and hematuria, as well as gonococcal urethritis, it is notable that the Veteran's January 1966 separation examination documents normal related clinical evaluations; moreover, while the Veteran reported a history of cystitis within a concurrent report of medical history, the examining physician specifically noted that this was isolated and without sequelae. Upon VA joints examination in February 2015, the Veteran reported pain in his left knee; however, a physical examination was normal, without any resulting objective diagnosis of a left knee disability. A concurrent examination regarding the Veteran's claimed cystitis and hematuria noted that his in-service treatment for such conditions was isolated and had resolved by the time of his separation examination. Additionally, the examiner noted that there was no current urinary tract infection or hematuria upon examination; however, the examiner did note that the Veteran experienced urinary leakage as a result of prior robotic surgery for prostate cancer. Post-service private treatment records document that the Veteran had erectile dysfunction and cystitis (with hematuria by history) which had each developed as a result of his radical prostatectomy surgery. Significantly, however, there is no probative evidence that erectile dysfunction had onset during active service, that his cystitis due to prostate surgery is related to his isolated in-service complaint of cystitis, or that either condition is otherwise related to active service. As the probative evidence of record does not document a current chronic left knee disability at any time during the pendency of the appeal, service connection is not warranted. Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. at 321. The Board acknowledges that the Veteran has reported left knee pain during the pendency of the appeal, and such statements are probative insofar as they report observable symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994); however, the Board is mindful that pain generally does not, in and of itself, constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). To the extent that the Veteran asserts that he has a chronic left knee disability which is related to his active service, such statements are of little probative value, as the Veteran lacks the medical and orthopedic expertise to diagnose a complex musculoskeletal condition or to render a nexus opinion relating such condition to his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Similarly, to the extent that the Veteran has reported symptoms of erectile dysfunction and cystitis (with a history of hematuria), his reports are competent insofar as they report observable symptoms, see Layno, 6 Vet. App. at 469; however, to the extent that the Veteran asserts that his claimed erectile dysfunction and cystitis (with a history of hematuria) are related to active service, such statements are of no probative value given the Veteran's lack of related medical expertise and the complexity of such conditions beyond what is observable by a layperson. See Jandreau, 492 F.3d at 1376-77. In sum, the preponderance of the evidence is against the Veteran's claims of entitlement to erectile dysfunction, a left knee disability, and cystitis (with history of hematuria) for the reasons described above, there is no reasonable doubt to be resolved, and the claims must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Board notes that the Veteran has not specifically claimed entitlement to service connection for prostate cancer or the resulting radical prostatectomy with residuals, including erectile dysfunction and/or voiding dysfunction. The Board does not wish to suggest that the Veteran cannot file a claim of entitlement to service connection for residuals of prostate cancer, including erectile dysfunction and voiding dysfunction; indeed, should he choose to do so, he is invited to file the appropriate claim with the AOJ. ORDER Service connection for erectile dysfunction is denied. Service connection for a left knee disability is denied. Service connection for cystitis by history (claimed as hematuria) is denied. REMAND Although the Board regrets the additional delay, a remand is necessary regarding the Veteran's claims of entitlement to a compensable initial disability rating for bilateral pes planus in order to afford him a current VA examination. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012). VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2 (2017); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Additionally, the Court has held that it is within VA's duty to assist to afford the Veteran a new VA examination in order to accurately assess the current level of impairment when there is evidence that the claimed disability has worsened. Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). A review of the record reveals that the Veteran was last afforded a VA foot conditions examination in February 2015. The January 2018 appellant's brief specifically requests remand of this matter as the evidence of record does not adequately convey the current severity of the Veteran's bilateral pes planus disability. Additionally, the Board notes that although the February 2015 VA examiner stated that the Veteran's pes planus symptoms were completely relieved by orthotic devices which rendered the condition asymptomatic, the medical evidence of record documents the Veteran's ongoing complaints of bilateral foot pain with callouses that prohibited prolonged physical activity. Specifically, January 2015 private treatment records document bilateral foot pain, with intractable plantar keratosis (IPK) lesions under the second metatarsophalangeal joint bilaterally; the Veteran hyperpronated with weightbearing, although at rest he had an anterior cavus to the foot which resulted in semi-reducible contractures in the digits. Additionally, a private treatment record submitted in August 2016 indicates that the Veteran has arthritis and hallux limitus which are related to a service-connected condition; however, it is unclear whether such symptomatology is related to the Veteran's service-connected bilateral pes planus. Finally, the Veteran submitted an online medical article which discusses IPK lesions generally, although it is unclear if such condition is related to his service-connected bilateral pes planus. Given all of the above, the Board concludes that a new VA examination is warranted to determine the current severity of the symptomatology associated with the Veteran's service-connected bilateral pes planus. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to assess the current severity of his service-connected bilateral pes planus. The examiner should fully review the claims file and the directives of this remand. Any indicated diagnostic tests and studies must be accomplished and all pertinent symptomatology and findings should be reported in detail. A complete rationale for all opinions expressed should also be provided. The examiner must specifically consider and discuss all relevant evidence of record, including the January 2015 and August 2016 private treatment records and the online medical article discussed above. Finally, the examiner should clearly document any functional impairment as a result of the Veteran's service-connected bilateral pes planus, taking care to separate such effects from those resulting from the Veteran's separately service-connected left ankle disability. 2. Thereafter, reajudicate the Veteran's claim of entitlement to a compensable initial disability rating for bilateral pes planus. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs