Citation Nr: 1817263 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-35 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a respiratory disability, to include asthma. 3. Entitlement to service connection for erectile dysfunction. 4. Entitlement to service connection for an acquired psychiatric disorder, to include depression. 5. Entitlement to service connection for hypertension, to include as due to erectile dysfunction. 6. Entitlement to service connection for sleep apnea. 7. Entitlement to service connection for bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1978 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in March 2009 and February 2010 by or on behalf of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2012, the Veteran testified at a personal hearing before a Veterans Law Judge who is no longer available to participate in this decision. He declined an opportunity for another Board hearing in April 2016. A copy of the transcript of the February 2012 hearing is of record. The case was remanded for additional development in May 2014 and January 2017. The Board notes that a November 2017 rating decision granted entitlement to service connection for a right thumb scar and for residuals of a median nerve palmar branch injury to the right thumb. The Veteran was notified that the determinations were considered to have fully resolved his appeal of entitlement to service connection for a right hand disability. As he has expressed no disagreement from that determination, the issues as provided on the title page of this decision are the only matters for appellate review. FINDINGS OF FACT 1. A low back disability was not manifest during service; arthritis was not manifest within one year of active service discharge; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service. 2. A respiratory disability, to include asthma, was not manifest during service; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service. 3. An erectile dysfunction disability was not manifest during service; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service. 4. An acquired psychiatric disorder, to include depression, was not manifest during service; a psychosis was not manifest within one year of active service discharge; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service. 5. Hypertension was not manifest during service or within one year of active service discharge; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service or to a service-connected disability. 6. A sleep apnea disability was not manifest during service; arthritis was not manifest within one year of active service discharge; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service. 7. A bilateral foot disability was not manifest during service; arthritis was not manifest within one year of active service discharge; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a respiratory disability, to include asthma, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for service connection for an acquired psychiatric disorder, to include depression, have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for hypertension, to include as due to erectile dysfunction, have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 6. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 7. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The matter was Remanded in January 2017 for the purpose of affording the Veteran a series of VA examinations and obtaining medical opinions with respect to those examinations. The VA examinations were conducted with corresponding reports. The Board finds that there was substantial compliance with the 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008)); Dyment v. West, 13 Vet. App. 141 (1999). Since the 2017 Remand, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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 a duty to assist argument). Service Connection Claims Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence (obvious or manifest) establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). Noted means "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). "Clear and unmistakable evidence" is an "onerous" evidentiary standard requiring that the conclusion be "undebatable." Cotant v. Principi, 17 Vet. App. 116 (2003) (citing Laposky v. Brown, 4 Vet. App. 331 (1993)). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that active service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). When aggravation of a nonservice-connected condition is proximately due to or a result of a service-connected disability a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Certain chronic diseases, including arthritis, hypertension, and psychoses, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, hypertension, and psychoses are qualifying chronic diseases. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2017). The Veteran contends that he has low back, respiratory, erectile, acquired psychiatric, hypertension, sleep apnea, and bilateral foot disabilities as a result of service. In statements and hearing testimony he reported having low back and chest pain, breathing issues, and erectile dysfunction in service. He reported he was first treated for asthma in 1996. He stated his problems with erectile dysfunction continued after service, but that he did not seek any treatment for the disorder until November 1982 because he did not realize the severity of the issue. He asserted his belief that blood pressure readings in service indicated his hypertension was onset in service. He clarified his claim, in essence, noting that he was not claiming his hypertension had developed as a result of erectile dysfunction. He reported he was first diagnosed and treated for hypertension in approximately 1996. The Veteran testified that a good friend had been shot and killed by the friend's spouse in approximately February 1982 and that he believed that had contributed to his depression. He indicated his depression was first diagnosed and treated in 2009. He also testified that he had two post-service job-related back injuries, but asserted that he would not have incurred those injuries if he had not injured his back in service. He reported that he had experienced foot problems and snoring problems since service and that he first received treatment for foot disorders and sleep apnea in 2009. Service treatment records show that a February 1978 enlistment examination revealed the Veteran's right testicle had been surgically descended at age 10. His feet were noted to be clinically normal, but the entry was circled on the form without additional comment. An October 1979 report noted complaints of sore throat and provided a diagnosis of upper respiratory infection. An April 1980 report noted he complained of a sore throat and low back pain, but left before being seen. Records show that in November 1982 he complained of a one year history of mid back pain and stated he had a problem with pre-mature ejaculation. The examiner's assessment included sexual dysfunction. The Veteran's August 4, 1983, separation examination revealed normal clinical heart, lungs and chest, genitourinary, feet, spine, and psychiatric evaluations. In his report of medical history at separation he noted having had chronic or frequent colds, a head injury, and pain or pressure in chest. He noted he did not know if he had any loss or memory or amnesia, nervous trouble of any sort, or periods of unconsciousness. No responses were provided in the column on the form that included an inquiry as to recurrent back pain. He denied having any history of asthma, shortness of breath, high or low blood pressure, or depression or excessive worry. Service treatment records show an August 6, 1983, emergency care report noted the Veteran complained of low back pain after falling while playing basketball. It was noted he denied any history of low back pain. An examination revealed full range of motion with mild pain and right paravertebral muscle spasm. The diagnoses included low back strain and muscle spasm. The treatment plan included ice pack and a three day no physical training profile. Service connection is established for a perianal scar residual of hemorrhoids, right thumb scar, and residuals of a right thumb median nerve palmar branch injury. A combined 10 percent service-connected disability rating is assigned. A March 1993 statement from a private psychologist noted the Veteran had taken a Minnesota Multiphasic Personality Inventory and that his profile was well within the normal range. It was noted he was not abnormally depressed or anxious. Private treatment records dated in January 1998 noted the Veteran had multiple elevated blood pressure findings, but that his pressure was not elevated upon present examination. It was noted that he had been working on exercise and weight loss. A diagnosis of hypertension was provided. A September 2000 report noted he reported he had recently begun to have problems with a degree of erectile dysfunction and questioned whether it might be related to his asthma. The examiner suggested he discontinue his systemic Accolate medication. An undated report printed in October 2001 noted diagnoses of asthma, hypertension, and anxiety. A February 2007 report noted the Veteran complained of low back pain over the past week. Diagnoses of right S1 inflammation and possible radiculopathy versus concurrent neuralgia parasitica were provided. Additional private and VA treatment records note diagnoses of low back pain, hypertension, sleep apnea, asthma, hallux valgus, foot pain, anxiety, depressive disorder, and erectile disorder without opinion as to etiology. A November 2008 VA back examination noted the Veteran reported recurrent back pain throughout active service and that he had recurrent back strains in the same location brought about with his work-related duties with the postal service. The examiner noted that service and VA treatment records were reviewed and that a May 2008 X-ray study of the thoracolumbar spine had been normal. The examiner provided a diagnosis of recurrent thoracolumbar strain, but found it was less likely related to his back complaints in service. As rationale it was noted his complaints of low back pain on a few occasions in service appeared to have been acute and treated with resolution and that his private treatment records suggested annual health maintenance screening without back complaints until approximately 2007. An April 2015 private medical statement from T.C.M., M.D., noted the Veteran had been his patient since 1997. It was also noted that his service treatment records had been reviewed and that it was likely his mechanical back pain began in service. No additional comments as to etiology were provided. A July 2015 treatment report noted the Veteran had a gradual onset of asthma symptoms that had been occurring for 30 years. VA mental disorders examination in March 2017 included a diagnosis of persistent depressive disorder. The examiner summarized the Veteran's history and found that while he met the diagnostic criteria for persistent depressive disorder it was less likely it was related to his military service or a service-connected disability. An April 2017 VA sleep apnea examination included a diagnosis of obstructive sleep apnea with a date of diagnosis in 2009. The examiner found that it was less likely the Veteran's obstructive sleep apnea was related to active service. It was noted that his service treatment records were silent as to this matter and his diagnosis was provided many years after service. His claim as to snoring was considered, but noted by itself not to be an absolute indicator of sleep apnea. It was further noted to not have been included as a complaint on his post-serviced treatment records until many years after service. The examiner also noted that sleep apnea was more prevalent in heavier persons and, in essence, that his weight in 2009 was over 250 pounds as compared to his weight of 170 pounds in service. VA hypertension examination in April 2017 included a diagnosis of hypertension with a date of diagnosis in 2000. The examiner noted that a review of the Veteran's service treatment records were silent for any blood pressure values consistent with a diagnosis of hypertension. The diagnosis of hypertension made over 16 years after his separation from active service was found to be less likely related to active service. It was further noted that fluctuating blood pressure readings were normal physiological responses to stress and pain and by themselves were not indicative of essential hypertension. Additionally, per reference literature, erectile dysfunction was not a cause for essential hypertension and his hypertension was not likely secondary to erectile dysfunction. An April 2017 VA male reproductive system conditions examination included diagnoses of premature ejaculation in November 1982 and erectile dysfunction in the 1990s. The examiner summarized the evidence of record and found that it was less likely his multifactorial erectile dysfunction was related to active service. It was noted that premature ejaculation was mentioned in service, but that the Veteran had fathered a child after service with no mention for many years after service. The examiner stated that further comment as to the issue would require speculation. VA thoracolumbar spine conditions examination in April 2017 included a diagnosis of degenerative joint disease. The examiner summarized the Veteran's back disorder medical history and found that his back complaints in service in April 1980 and November 1982 had obviously resolved. It was further noted that, in the absence of medical treatment immediately after service and as the vast majority of low back strains resolved without chronic problems, his August 1983 low back complaint had also resolved. The Veteran's present low back condition was found to be less likely related to his active service. As rationale it was noted that his separation examination was negative for chronic back complaints, that post-service medical records were silent of back complaints for many years, and that his post-service occupation had required lifting and prolonged standing. In a July 2017 addendum the examiner, in essence, reiterated the previously provided opinion and noted additionally that the Veteran's X-ray findings were consistent with the normal wear and tear associated with aging. An April 2017 VA respiratory conditions examination included a diagnosis of asthma with a date of diagnosis in March 2000. The examiner noted the Veteran reported he had never been tested for allergies in service and that he reported having been exposed to bad air while service in Texas. It was noted that a review of service treatment records revealed rare upper respiratory symptoms and no specific allergy symptoms. He was noted to have denied breathing problems during a work up for chest pain. No records consistent with asthma in service were located. The examiner found it was less likely the Veteran's asthma diagnosed in 2000 many years after service was related to active service. An April 2017 VA foot conditions examination included diagnoses of bilateral pes planus and bilateral hallux valgus with a date of diagnoses in 2009 and left foot degenerative arthritis with a date of diagnosis in 2013. The examiner noted that no specific foot condition was found upon enlistment examination, that service treatment and separation examination records were silent for complaint of a foot disorder, and that there was no post-service medical evidence of a foot disorder for several years after service. The Veteran's present foot disorders were found to be less likely related to his active service. Based on the evidence of record, the Board finds that chronic low back and respiratory disabilities were not manifest during service and that no erectile, acquired psychiatric, hypertension, sleep apnea, or bilateral foot disabilities were manifest in service. Service treatment records show the Veteran was treated for low back complaints and for an upper respiratory infection; however, there was no evidence of chronic low back or respiratory disorders at separation. In his August 1983 report of medical history at separation he denied having any history of asthma, shortness of breath, high or low blood pressure, or depression or excessive worry. Nor is there any medical evidence of an associated chronic disease, such as arthritis, hypertension, or psychosis, shown to have been manifest within one year of the Veteran's discharge from service. The preponderance of the evidence also fails to establish that present low back, asthma, depressive disorder, hypertension, obstructive sleep apnea, or bilateral foot disabilities are etiologically related to service or to a service-connected disability. The November 2008, March 2017, and April 2017 VA medical opinions are found to be persuasive and based upon adequate rationale. The examiners are shown to have reviewed the evidence of record, and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Other than as to the low back disability, there is no contrary medical opinion as to these matters. Although an April 2015 private medical statement from Dr. T.C.M. found it was likely the Veteran's mechanical back pain began in service, no specific additional comments as to etiology were provided. The Board notes, however, that the November 2008 VA back examiner found a May 2008 X-ray study of the thoracolumbar spine had been normal and that the complaints of low back pain on a few occasions in service appeared to have been acute and that private treatment records suggested annual health maintenance screening without back complaints until approximately 2007. Dr. C.M. did not account for these findings, i.e., that a chronic disability of the back was not seen in 2008. Moreover, the April 2017 and July 2017 VA medical opinions demonstrate agreement as to the acute nature of the Veteran's low back complaints in service and noted that post-service X-ray findings were consistent with the normal wear and tear associated with aging. The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based upon a review of the overall evidence of record, the Board finds the of the November 2008, April 2017, and July 2017 VA examiners to warrant a higher degree of probative weight that the April 2015 private medical opinion. Those opinions are shown to have been based upon a thorough review of the available evidence and to be more consistent with the other medical evidence of record, including post-service X-ray studies. Consideration has also been given to the Veteran's personal assertion that he has present disabilities as a result of active service or a service-connected disability. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that any additional, pertinent symptoms were observed during or within one year of service discharge. Nor is he shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise pertinent to the matters at issue. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. In conclusion, the Board finds that service connection for the claimed disabilities is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the Veteran's claims. ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a respiratory disability, to include asthma, is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for bilateral foot disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs