Citation Nr: 20004847
Decision Date: 01/23/20	Archive Date: 01/21/20

DOCKET NO. 16-05 178
DATE: January 23, 2020

ISSUES

1. Entitlement to service connection for vertigo, also claimed as dizziness and imbalance, to include as secondary to service-connected post-traumatic stress disorder (PTSD) and tinnitus.

2. Entitlement to service connection for dyspnea, upper respiratory condition, to include as secondary to service-connected post-traumatic stress disorder (PTSD).

3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected post-traumatic stress disorder (PTSD).

4. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected post-traumatic stress disorder (PTSD).

5. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected post-traumatic stress disorder (PTSD).

6. Entitlement to service connection for hypertension, to include as secondary to service-connected post-traumatic stress disorder (PTSD).

7. Entitlement to service connection for neuralgia, left upper extremity, to include as secondary to service-connected post-traumatic stress disorder (PTSD).

8. Entitlement to service connection for neuralgia, right upper extremity, to include as secondary to service-connected post-traumatic stress disorder (PTSD).

9. Entitlement to service connection for prostatitis, to include as secondary to service-connected post-traumatic stress disorder (PTSD).

10. Entitlement to service connection for sleep apnea disorder, to include as secondary to service-connected post-traumatic stress disorder (PTSD).

11. Entitlement to service connection for otitis externa, to include as secondary to service-connected post-traumatic stress disorder (PTSD), bilateral hearing loss disability, and tinnitus.

12. Entitlement to special monthly compensation (SMC) based on loss of use.

ORDER

Entitlement to service connection for vertigo, also claimed as dizziness and imbalance, to include as secondary to service-connected post-traumatic stress disorder (PTSD) and tinnitus is denied.

Entitlement to service connection for dyspnea, upper respiratory condition, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is denied.

Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is denied.

Entitlement to service connection for fibromyalgia, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is denied.

Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected post-traumatic stress disorder (PTSD) is denied.

Entitlement to service connection for hypertension, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is denied.

Entitlement to service connection for neuralgia, left upper extremity, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is denied.

Entitlement to service connection for neuralgia, right upper extremity, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is denied.

Entitlement to service connection for prostatitis, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is denied.

Entitlement to service connection for sleep apnea disorder, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is denied.

REMANDED

Entitlement to service connection for otitis externa, to include as secondary to service-connected post-traumatic stress disorder (PTSD), bilateral hearing loss disability, and tinnitus is remanded.

Entitlement to special monthly compensation (SMC) based on loss of use is remanded.

FINDINGS OF FACT

1. Vertigo, also claimed as dizziness and imbalance was not manifest in service, is not caused or aggravated by a service-connected disease or injury, and is not otherwise attributable to service.

2. An upper respiratory condition, to include dyspnea, was not manifest in service, is not caused or aggravated by a service-connected disease or injury, and is not otherwise attributable to service.

3. The Veteran does not have an erectile dysfunction disability.

4. Fibromyalgia was not manifest in service or within one year of separation, is not caused or aggravated by a service-connected disease or injury, and is not otherwise attributable to service

5. Gastroesophageal reflux disease (GERD) was not manifest in service, is not caused or aggravated by a service-connected disease or injury, and is not otherwise attributable to service.

6. Hypertension was not manifest in service or within one year of separation, is not caused or aggravated by a service-connected disease or injury, and is not otherwise attributable to service. 

7. Neuralgia, left upper extremity was not manifest in service or within one year of separation, is not caused or aggravated by a service-connected disease or injury, and is not otherwise attributable to service. 

8. The Veteran does not have a disability variously claimed as neuralgia, right upper extremity, and resulting in impairment of the right upper extremity. 

9. Prostatitis was not manifest in service, is not caused or aggravated by a service-connected disease or injury, and is not otherwise attributable to service.

10. Sleep apnea disorder was not manifest in service, is not caused or aggravated by a service-connected disease or injury, and is not otherwise attributable to service.

CONCLUSIONS OF LAW

1. Vertigo, also claimed as dizziness and imbalance was not incurred in or aggravated by service, and is not proximately due to, the result of, or aggravated by service connected disease or injury.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).

2. Dyspnea, upper respiratory condition, was not incurred in or aggravated by service, and is not proximately due to, the result of, or aggravated by service connected disease or injury.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).

3. Erectile dysfunction was not incurred in or aggravated by service, and is not proximately due to, the result of, or aggravated by service connected disease or injury.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).

4. Fibromyalgia was not incurred in or aggravated by service, organic disease of the nervous system may not be presumed to have been incurred therein, and is not proximately due to, the result of, or aggravated by service connected disease or injury.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).

5. Gastroesophageal reflux disease (GERD) was not incurred in or aggravated by service, and is not proximately due to, the result of, or aggravated by service connected disease or injury.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).

6. Hypertension was not incurred in or aggravated by service, cardiovascular-renal disease may not be presumed to have been incurred therein, and is not proximately due to, the result of, or aggravated by service connected disease or injury.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).

7. Neuralgia, left upper extremity, was not incurred in or aggravated by service, organic disease of the nervous system may not be presumed to have been incurred therein, and is not proximately due to, the result of, or aggravated by service connected disease or injury.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).

8. Neuralgia, right upper extremity, was not incurred in or aggravated by service, organic disease of the nervous system may not be presumed to have been incurred therein, and is not proximately due to, the result of, or aggravated by service connected disease or injury.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).

9. Prostatitis was not incurred in or aggravated by service, and is not proximately due to, the result of, or aggravated by service connected disease or injury.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).

10. Sleep apnea disorder was not incurred in or aggravated by service, and is not proximately due to, the result of, or aggravated by service connected disease or injury.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1964 to February 1966.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran appeared before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in June 2018.  The record contains a transcript of that hearing.  

The issues were previously remanded by the Board in July 2018 for additional development, including affording the Veteran numerous VA examinations.

The issues of entitlement to an increased rating for service-connected PTSD and for entitlement to a total disability rating based on individual unemployability (TDIU) were raised by the Veteran at the June 2018 videoconference hearing, but have not been adjudicated by the agency of original jurisdiction (AOJ).  Additionally, the issue of entitlement to service connection for a left knee disability was raised by the Veteran in an October 2015 Statement in Support of Claim and a November 25, 2019 VA 21-526EZ Application for Disability Compensation and Related Compensation Benefits.  It has not been adjudicated by the AOJ.  The issue of entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure was also raised in the November 2019 VA 21-526.  Therefore, the Board does not have jurisdiction over these matters, and such matters are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9 (b) (2018).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018).

The November 2019 VA 646 Statement of Accredited Representative in Appealed Case confirms the twelve issues currently on appeal.  The Veteran through his representative waived any remaining time, and requested, “A thorough and compassionate review of all the evidence of record, resulting in a decision favorable to the claimant.” 

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran’s claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Service Connection

To establish service connection a Veteran must generally 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, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.”  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303 (b).  

We note that hypertension and organic disease of the nervous system, such as neuralgia, are chronic diseases, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection.  See 38 C.F.R. §§ 3.303, 3.307, 3.309.  Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology.  Continuity may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as “chronic.” See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a).  Chronic diseases that become manifest to a degree of 10 percent or more within one year of termination of active duty may be presumed to have been incurred in service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310 (a).  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310 (b).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154 (a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements.  Id.  The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.  Id.  Further, a negative inference may be drawn from the absence of complaints for an extended period.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

1. Entitlement to service connection for vertigo, also claimed as dizziness and imbalance, to include as secondary to service-connected PTSD and tinnitus

The Board incorporates its discussion from the sections above by reference.

By way of background, the Service Treatment Records (STRs) include a February 1966 Report of Medical Examination from separation.  It disclosed a clinically normal evaluation of the head, face, neck, and scalp, nose, sinuses, and neurologic system.  In the contemporaneous Report of Medical History, the Veteran described his personal health as “Good.”  He denied dizziness or fainting spells.  

Decades later, the Veteran filed his claims for service connection currently on appeal, received by VA in November 2013.  

The May 2015 Notice of Disagreement (NOD) shows that the Veteran contends that service connection is warranted for twelve claimed disabilities, each with various requested ratings.  It only lists issues of disagreement, and does not contain argument or evidence to cure the critical evidentiary requirements identified in the rating decision.  The Veteran requests that VA “objectively arrive at a decision favorable to me.”  

Next, the Veteran perfected his appeals in February 2016.  He contends:

THE DEPT OF VETERANS APPEALS FAILED TO CONSIDER THE FACTS, EVIDENCE, AND STATEMENTS IN SUPPORT OF MY CLAIMS.

THE DEPT OF VETERANS AFFAIRS FAILED IN ITS “DUTY TO ASSIST” IN NOT DEVELPING MY CLAIMS FULLY.

I CONTEND THAT THE CONDITIONS CLAIMED (12 CONDITIONS) ARE SERVICE CONNECTED AND HAVE ADVERSELY COMPROMISED MY QUALITY OF LIFE. (capitalization in original.)

Years later, at the June 2018 hearing, the Veteran testified regarding his symptomatology and theory of entitlement.  “I am taking medication right now. Back here, you know, the dizziness and the time I’m losing my balance. Some days it’s worse. Some days I feel good, some days it’s really bad. It comes and goes. Right now, I’m taking medication on that.”  See June 2018 Hearing Transcript, p 8.  He elaborated, “Yes, I would say so. If I get up out of a chair, it’ll knock me out of balance for a while, and then I get straight. I think it’s kind of, my balance would be because I’m having this anxiety. I have a lot of anxiety attacks.”  See June 2018 Hearing Transcript, p. 10. 

Later, a June 13, 2019 VA treatment record shows in part, “Denies headache, intermittent dizziness, lightheadedness.”

Next, the Veteran was afforded a battery of August 2019 VA examinations.  The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination.  The VA examination shows that the Veteran has vertigo when he stands up suddenly.  The condition has been stable.  The VA examiner identified Benign Paroxysmal Positional Vertigo with a date of diagnosis of August 1, 2019.  The VA examiner described the medical history with a date of onset of 2000.  The Veteran reported that he has vertigo due to his service connected disabilities, including tinnitus.  Next, the VA examiner rendered a series of negative nexus opinions.  The VA examiner provided detailed reasons and bases citing to evidence in the record.  Regarding direct service connection, the VA examiner opined, “The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.”  The VA examiner remarked, “[T]he veteran[’]s claimed condition occurred several decades after his separation from active duty, there were no complaints found in the Veterans c-file directly or indirectly related to the veterans claimed condition. [A] nexus cannot be established.”  Regarding aggravation, the VA examiner explained that a baseline could not be established.  However, the VA examiner rendered a negative nexus opinion for any aggravation beyond its natural progression.  The VA examiner remarked, “[T]he veteran[’]s vertigo/tinnitus is not related to his SC conditions.”  This negative nexus opinion implicitly encompasses all secondary service connection theories of entitlement, including whether vertigo is proximately due to or the result of tinnitus or PTSD.

A September 23, 2019 VA treatment record shows, “Denies any chest pain, dizziness. States has had some HA off and on.”  Additional VA treatment records are substantially the same.    

The Veteran contends that he is entitled to service connection for vertigo, also claimed as dizziness and imbalance, to include as secondary to service-connected PTSD and tinnitus.

The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history.  The Veteran is competent to report dizziness and imbalance.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Veteran is competent to relate what he has been told by a professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The most probative evidence is the contemporaneous treatment records, including the STRs, and the opinion of the August 2019 VA examiner.  First, the STRs are clinically normal for the head, face, neck, and scalp, nose, sinuses, and neurologic system.  In the contemporaneous Report of Medical History, the Veteran denied dizziness or fainting spells.  Several years later, in 2019, recent VA treatment records show that the Veteran denied dizziness.  The Board assigns significant probative weight to the contemporaneous treatment records.  

Second, the Board also assigns significant probative weight to the detailed opinion of the August 2019 VA examiner.  The VA examiner reviewed the entire claims file, and provided detailed reasons and bases.  The VA examiner rendered negative nexus opinions encompassing all theories of direct and secondary service connection, including aggravation.  The VA examiner highlighted the lack of complaints in the claims file for many years from separation.  The VA examiner also highlighted, “there were no complaints found in the Veterans c-file directly or indirectly related to the veterans claimed condition.”  The VA examiner identified Benign Paroxysmal Positional Vertigo with a date of diagnosis of August 1, 2019, and described the medical history of vertigo with a date of onset of 2000.  This is still decades removed from discharge.

Regarding direct service connection, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entity in service.  It was not manifest in service and is not attributable to service.  There is no probative evidence to the contrary.  In addition, the Board finds that while competent to report what he has been told by his physician and to report dizziness and imbalance, the Veteran’s own lay opinion regarding identifying a potential chronic disease entity, such as paroxysmal positional vertigo, pales in probative weight when compared to the objective medical evidence of record.  Consequently, we find that service connection on a direct basis for vertigo, also claimed as dizziness and imbalance, is not warranted.  

Here, it appears the Veteran’s central theory for entitlement to service connection for vertigo is also one of secondary service connection.  More specifically, he contends that vertigo is secondary to his service-connected PTSD and tinnitus.  Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310.  Service connection has been established for PTSD and tinnitus.  The Board has considered the evidence of record, and finds that vertigo is not related to service, and is less likely than not proximately due to, the result of, or aggravated by any service connected disability, including PTSD and tinnitus.  The VA examiner rendered a negative nexus opinion encompassing all theories of secondary service connection, including any aggravation.  The VA examiner unequivocally opined, “[T]he veteran[’]s vertigo/tinnitus is not related to his SC conditions.”

The Board has assigned significant probative weight to the contemporaneous medical records, including the STRs, and the findings of the August 2019 VA examiner.  The VA examiner reviewed the STRs, VA treatment records, objective testing findings, and considered the Veteran’s lay history.  The VA examiner provided detailed reasons and bases.  The VA examiner rendered negative nexus opinions for all theories of entitlement.  We have found these to be the most probative evidence of record.

In short, vertigo was not diagnosed or manifest during service.  In addition, the Veteran’s own lay opinion pales in probative weight (regarding identifying a potential chronic disease entity in service) when compared to the objective medical evidence of record.  Additional causal evidence against the claims, and while not dispositive, is the lapse of so many years between discharge and the first documented complaints of vertigo, even if liberally construed, in 2000.  This multi-year gap after service provides highly probative evidence against these claims.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that “evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran’s health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service”).  Lastly, even assuming additional lay history identified vertigo almost 50 years earlier, though we do not concede this, there is still no link to service (nexus), or to service connected disease or injury.  There is no doubt to resolve.  Therefore, service connection for vertigo, also claimed as dizziness and imbalance, to include as secondary to service-connected PTSD and tinnitus, is not warranted.

2. Entitlement to service connection for dyspnea, upper respiratory condition, to include as secondary to service-connected PTSD

The Board incorporates its discussion from the sections above by reference.

By way of background, the February 1966 Report of Medical Examination from separation in the STRs disclosed a clinically normal evaluation of the lungs and chest.  In the contemporaneous Report of Medical History, the Veteran denied asthma, nose or throat trouble, chronic or frequent colds, sinusitis, hay fever, tuberculosis, shortness of breath, pain or pressure in chest, and chronic cough.  

Decades later, the Veteran filed his claims for service connection currently on appeal.  The May 2015 NOD shows that the Veteran contends that service connection with a 50 percent evaluation is warranted for dyspnea.  It only lists areas of disagreement, and does not contain argument or evidence to satisfy the critical evidentiary requirements identified in the rating decision.  The Veteran requests that VA “objectively arrive at a decision favorable to me.”  

Next, the Veteran testified at the June 2018 hearing regarding his contentions that service connection is warranted for the claimed disabilities, including raising his secondary service connection theory of entitlement. 

A VA treatment record from April 17, 2019 shows, “resp even and unlabored, lungs with scattered rales. Back of throat with erythema.”  Additional ongoing VA treatment records are substantially the same.

Months later, the Veteran was afforded an August 2019 VA examination with related medical opinion.  The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination.  The VA examiner identified dyspnea with a date of diagnosis of August 1, 2019.  Under medical history, the VA examination shows a date of onset of 2008, though the Veteran reported that he had respiratory issues since in his time in service.  Regarding the claimed respiratory condition, the VA examiner provided a negative nexus opinion for direct service connection.  The VA examiner reasoned, “During service, condition was acute only. There is no evidence of chronicity of care.  A nexus has not been established.”  The VA examiner also rendered a negative nexus opinion for secondary service connection for any respiratory condition.  The VA examiner reasoned, “Unable to confirm a current chronic diagnosis with current available records and/or today’s exam. Therefore no nexus or plausible secondary relationship is established.”  This negative nexus opinion for secondary service connection implicitly encompasses proximate cause and aggravation.

The Veteran contends that he is entitled to service connection for dyspnea or an upper respiratory condition, to include as secondary to service-connected PTSD.

The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history.  The Veteran is competent to report respiratory impairment.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Veteran is competent to relate what he has been told by a professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The most probative evidence is the contemporaneous treatment records, including the STRs, and the opinion of the August 2019 VA examiner.  First, the STRs are clinically normal for the lungs and chest.  In the contemporaneous Report of Medical History, the Veteran denied asthma, nose or throat trouble, chronic or frequent colds, sinusitis, hay fever, tuberculosis, shortness of breath, pain or pressure in chest, and chronic cough.  Several years later, in April 2019, a VA treatment record showed even and unlabored breathing.  The Board assigns significant probative weight to the contemporaneous treatment records.  

Second, the Board also assigns significant probative weight to the detailed opinion of the August 2019 VA examiner.  The VA examiner reviewed the entire claims file, and provided detailed reasons and bases.  The VA examiner rendered negative nexus opinions encompassing all theories of direct and secondary service connection, including aggravation.  Regarding any complaints during service, the VA examiner highlighted that these were acute only.  The VA examiner also highlighted the lack of a current chronic diagnosis.  The VA examiner only identified dyspnea from August 1, 2019, but no chronic disease such as asthma, COPD, or chronic bronchitis.

Regarding direct service connection, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entity in service.  It was not manifest in service and is not attributable to service.  There is no probative evidence to the contrary.  In addition, the Board finds that while competent to report what he has been told by his physician and to report respiratory impairment variously characterized as dyspnea, the Veteran’s own lay opinion regarding identifying a potential chronic respiratory disease pales in probative weight when compared to the objective medical evidence of record.  Consequently, we find that service connection on a direct basis for a respiratory disability is not warranted.  

Here, it appears the Veteran’s central theory for entitlement to service connection for a respiratory disability to include dyspnea is also one of secondary service connection.  More specifically, he contends that a respiratory disability to include dyspnea is secondary to his service-connected PTSD and symptoms of anxiety.  Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310.  Service connection has been established for PTSD.  The Board has considered the evidence of record, and finds that a respiratory disability to include dyspnea is not related to service, and is less likely than not proximately due to, the result of, or aggravated by any service connected disability.  The VA examiner restated, “[T]he veterans (sic) dyspnea and upper respiratory condition are not secondary to his PTSD SC condition, nexus not established.”

The Board has assigned significant probative weight to the contemporaneous medical records, including the STRs, and the findings of the August 2019 VA examiner.  The VA examiner reviewed the STRs, VA treatment records, objective testing findings, and considered the Veteran’s lay history.  The VA examiner provided detailed reasons and bases.  The VA examiner rendered negative nexus opinions for all theories of entitlement.  We have found these to be the most probative evidence of record.

In short, the most probative evidence is the clinically normal STRs upon discharge and August 2019 VA examinations with medical opinion.  A respiratory disability to include dyspnea was not noted or manifest during service.  In addition, the Veteran’s own lay opinion pales in probative weight (regarding identifying a potential chronic disease entity in service) when compared to the objective medical evidence of record.  Additional causal evidence against the claims, and while not dispositive, is the lapse of so many years between discharge and the first documented complaints of dyspnea many decades after discharge.  This multi-year gap after service provides highly probative evidence against these claims.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Lastly, even assuming additional lung pathology were identified, though we do not concede this, there is still no link to service (nexus).  There is no doubt to resolve.  Therefore, service connection for a respiratory disability to include dyspnea is not warranted.

   

3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD

The Board incorporates its discussion from the sections above by reference.

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

By way of background, the February 1966 Report of Medical Examination from separation in the STRs disclosed a clinically normal evaluation of the vascular system and G-U system.  In the contemporaneous Report of Medical History, the Veteran denied frequent or painful urination and venereal disease.  

Decades later, the Veteran filed his claims for service connection currently on appeal.  The May 2015 NOD shows that the Veteran contends that service connection with a ten percent evaluation for erectile dysfunction is warranted.  It only lists areas of disagreement, and does not contain argument or evidence to meet the critical evidentiary requirements identified in the rating decision.  The Veteran requests that VA “objectively arrive at a decision favorable to me.”  

The Veteran also testified at the June 2018 hearing regarding his contentions that service connection is warranted for the claimed disabilities, including raising his secondary service connection theory of entitlement.

Next, the Veteran was afforded an August 2019 VA examination.  The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination.  The VA examiner only identified prostatitis, and left blank an indication for erectile dysfunction (ED).  We will only discuss ED here, however, these examination results are incorporated by reference for prostatitis below.  First, the VA examiner rendered a negative nexus opinion for direct service connection.  The VA examiner reasoned, “[T]he veteran[’]s erectile dysfunction and prostatitis is not SC veteran did not have any reproductive complaints while on active duty, the veteran does not have a[n] erectile dysfunction diagnosis.”  The VA examiner similarly rendered a negative nexus opinion regarding aggravation.  The VA examiner explained, “[T]he veteran[’]s erectile dysfunction and prostatitis is not SC veteran did not have any reproductive complaints while on active duty, the veteran does not have a documented diagnosis of erectile dysfunction.”  Lastly, the VA examiner opined, “The claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service connected condition.”  The VA examiner highlighted, “Unable to confirm a current chronic diagnosis with current available records and/or today’s exam. Therefore no nexus or plausible secondary relationship is established.”

The Veteran contends that he is entitled to service connection for erectile dysfunction, to include as secondary to service-connected PTSD.

The Veteran is competent to report erectile impairment.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Veteran is competent to relate what he has been told by a professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The most probative evidence is the contemporaneous treatment records, including the STRs, and the findings of the August 2019 VA examiner.  First, the STRs show no G-U findings at separation, and the Veteran did not document any erectile dysfunction complaints at separation.  He described his health as “Good.” 

Here, the Board finds the lack of objective medical evidence as to the existence and diagnosis for a current chronic erectile dysfunction disability to be the highly probative.  This is demonstrated by the silence in the ongoing VA treatment records.  The Board observes that neither the Veteran nor his representative have identified evidence to the contrary or specifically requested any additional development of this issue.  Moreover, the August 2019 VA examinations with medical opinions show no probative evidence of any relationship (nexus) between any claimed erectile dysfunction disorder exclusive of prostatitis and complaints in service, largely communicated only by way of remote lay statements rather than notations in the STRs.  In reaching his conclusions, the August 2019 VA examiner reviewed the entire claims file, and rendered negative nexus opinions for all theories of entitlement.  This is consistent with the VA treatment records, in which recent problem lists are devoid of a diagnosis of erectile dysfunction.  The VA examiner considered the reports of prostatitis diagnosed from 2008.  The VA examiner explained, “[T]he veteran[’]s erectile dysfunction and prostatitis is not SC veteran (sic) did not have any reproductive complaints while on active duty, the veteran does not have a documented diagnosis of erectile dysfunction.”  This is supported by the objective evidence in the claims file, as cited to by the VA examiner.  Therefore, we assign substantial probative weight to the negative nexus opinions of the August 2019 VA examiner.

We have also considered the Veteran’s lay statements to the extent that he is competent to relate current erectile impairment.  However, they are outweighed by the medical evidence of record.  The recent August 2019 VA examiner found no objective evidence of erectile dysfunction disability.  In this regard, we have specifically considered that Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability.  See Saunders v. Wilkie, 886 F.3d 1356 (2018).  The Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.”  The Board observes that Saunders does not eliminate the need for underlying pathology, disease, or injury (also sometimes called a diagnosis).  We note that Saunders was in the context of the musculoskeletal system, though it does not explicitly hold that it is limited to such circumstances.  Regardless, there is no functional impairment due to pain alone as is addressed by Saunders.  It follows that the weight of the evidence is against any indication of a relationship to service.  Therefore, even after considering Saunders, service connection for erectile dysfunction is not warranted.

In sum, we find the lack of objective medical evidence as to the existence and diagnosis for any current erectile dysfunction disability to be probative.  There is no imaging or other objective evidence to the contrary.  Even assuming erectile dysfunction were identified, though we do not concede this, there is still no link to service (nexus).  There is no doubt to resolve.  Therefore, service connection for erectile dysfunction, to include as secondary to service-connected PTSD is not warranted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

4. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected PTSD

5. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected PTSD

6. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD

7. Entitlement to service connection for neuralgia, left upper extremity, to include as secondary to service-connected PTSD

8. Entitlement to service connection for neuralgia, right upper extremity, to include as secondary to service-connected PTSD

The Board incorporates its discussion from the sections above by reference.

As a threshold matter, the Board observes that hypertension as cardiovascular-renal disease and neuralgia and fibromyalgia as organic diseases of the nervous system are recognized chronic diseases, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection.  See 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

With regard to each of these conditions, Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability.  See Saunders v. Wilkie, 886 F.3d 1356 (2018).  Saunders was in the context of the musculoskeletal system, however, it does not explicitly hold that it is limited to such circumstances.  

By way of background, the February 1966 Report of Medical Examination from separation in the STRs disclosed a clinically normal evaluation of the vascular system, neurologic system, upper extremities, lungs and chest, mouth and throat, abdomen and viscera, endocrine system, and spine, other musculoskeletal system.  In the contemporaneous Report of Medical History, the Veteran denied high or low blood pressure, lameness, bone, joint, or other deformity, painful or “trick” shoulder or elbow, arthritis or rheumatism, neuritis, paralysis, shortness of breath, chronic cough, pain or pressure in chest, frequent indigestion, and stomach, liver, or intestinal trouble.

Decades later, at the June 2018 hearing, the Veteran described his neuralgia symptoms:

Right now, what’s really bothering me more than anything else, is pain in my body, you know. My shoulders, the doctor says I got inflammation of the nerves, and I’m constantly in pain, and I cannot explain how it hurts. It’s a funny feeling. The doctor who sent me to x-rays, nothing comes out on x-rays, and my pain is really shallow, not in my bones, it’s like my nerves. I cannot lift or pull or anything because I really feel it all day. Like, I get some time to recuperate after lifting or doing something that I’m not supposed to do.  

See June 2018 Hearing Transcript, p.6.  He described the location, “Well, yeah, it’s mostly my upper body. My arms, my shoulders, everything on my left-hand side. I feel a little on the right but most of it is on my left-hand side.”  Id. at p. 7.  He also testified that he has been diagnosed with hypertension and takes a high dose of medication for his blood pressure.  Id. at p. 9.  

The following year, the Veteran was afforded a series of comprehensive VA examinations for each of the claimed disabilities.  We will address each in turn.

First, the Veteran was afforded an August 2019 VA fibromyalgia examination, complete with Disability Benefits Questionnaire (DBQ) and medical opinion.  The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination.  The VA examiner identified fibromyalgia.  Regarding the history of the condition, the VA examiner remarked that the Veteran was unsure of the onset of the condition.  However, the VA examiner documented it as from 2008.  The VA examiner considered the Veteran’s lay history, “several years ago he started feeling tired and with aches to his bilateral shoulder or joints on occasion.”  Current symptoms are fatigue.  Next, the VA examiner rendered a negative nexus opinion for direct service connection.  The VA examiner also rendered a negative nexus opinion for secondary service connection.  The VA examiner described, “The two conditions are not medically related. The claimed fibromyalgia disorder is a separate entity entirely from the service connected condition of PTSD, bilateral tinnitus and bilateral hearing loss and unrelated to it. A nexus has not been established.” The VA examiner also rendered a negative nexus opinion for aggravation.  The VA examiner reasoned, “[T]he veteran[’]s fibromyalgia is in no way connected to his SC conditions, a baseline of aggravation is therefore unnecessary since there is no nexus.”  

Second, the Veteran was afforded a VA esophageal conditions examination for gastroesophageal reflux disease (GERD).  The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination.  GERD was identified.  The Veteran reported that GERD had its onset ten years ago, but has been getting progressively worse over the past 18 months.  He has heart burn on a daily basis.  Next, the VA examiner rendered negative nexus opinions for service connection encompassing all theories of direct, secondary, and a theory based upon aggravation.  The VA examiner reasoned in part, “[V]eteran did not have a GERD condition while on active duty a nexus cannot be established.”  Later, an October 2019 VA addendum medical opinion re-emphasized the VA examiner’s negative nexus opinions with regard to GERD.  It shows, “GERD which is a biological medical condition is not caused or aggravated by tinnitus or bilateral hearing loss or PTSD. A nexus cannot be established.”  

Third, the Veteran was afforded an August 2019 VA examination with medical opinion for hypertension.  The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination.  The Veteran was not certain when he started having blood pressure problems.  The VA examiner noted the approximate date of diagnosis and date medications first began for hypertension in 2008.  Next, the VA examiner rendered negative nexus opinions for service connection for all theories of direct, secondary, and a theory based upon aggravation.  The VA examiner reasoned in part, “There is no documented evidence to support the Veterans claim for treatment for hypertension during 1963-1966. [A] service connection is not applicable a nexus is not established.”  In rendering negative nexus opinions encompassing all theories of entitlement, the VA examiner opined, “[V]eterans (sic) did not have a hypertension condition while on active duty, therefore his condition could not have been aggravated by his time in military service.”  Regarding aggravation, he reasoned, “[T]he veteran[’]s current hypertension condition onset several decades after his military service excludes the possibility that it could have been aggravated by his military service.”

Fourth, the Veteran was afforded an August 2019 VA central nervous system and neuromuscular disease examination.  The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination.  The VA examiner identified only left upper extremity neuralgia with a date of onset of 2008.  The Veteran claimed that his condition is getting worse over the past 18 months.  He has left upper extremity pain and numbness.  The VA examiner remarked, “No Diagnosis is warranted.  physical exam normal, no diagnosis warranted.”  Next, the VA examiner rendered negative nexus opinions for service connection for all theories of direct, secondary, and a theory based upon aggravation for the left and right upper extremities.  For direct service connection, the VA examiner highlighted, “Review C-file shows no objective chronic symptoms or chronic diagnosis for left upper extremity neuralgia and there has been approx 53 years since military service discharge with no objective chronic symptoms or chronic diagnosis for left upper extremity neuralgia, therefore nexus is not established.” Regarding aggravation, the VA examiner reasoned in part, “Current literature on PTSD/Depression doesn’t support underlying pathology to cause/aggravation of left upper extremity neuralgia. Neuralgia is usually caused by either diabetes due to excess glucose, infection of the nerves (ie shingles, multiple sclerosis) or pressure on a nerve (ie bone, ligament, blood vessels or tumor).  Therefore nexus is not established that Veteran Service connected PTSD/Depression aggravated Veteran non service connected left upper extremity neuralgia beyond its natural progression.”  The VA examiner attached several links to relevant medical literature.  

Later, in October 2019, the VA examiner submitted a series of addendum medical opinions showing negative nexus opinions for secondary service connection for neuralgia of the left and right upper extremities.  Importantly, an October 2019 addendum medical opinion shows a negative nexus opinion for the right upper extremity.  The VA examiner emphasized, “Review of C-file shows no objective chronic symptoms or chronic diagnosis for right upper extremity neuralgia and there is 53 year gap since military service discharge with no objective chronic symptoms or chronic diagnosis for right upper extremity neuralgia AND VETERAN IS DENYING ANY RIGHT UPPER EXTREMITY NEURALGIA, therefore nexus is not established for right upper extremity neuralgia related to MS.”  The VA examiner also reiterated the negative nexus opinion for the left upper extremity, citing to evidence in the claims file, and noting the remote onset of any symptoms.

VA treatment records show impressions of and medication for diabetic polyneuropathy, fibromyalgia, and hypertension, and are substantially the same.

The Veteran contends that he is entitled to service connection for fibromyalgia, GERD, hypertension, and neuralgia of the left and right upper extremities, all to include as secondary to service-connected PTSD.

The Veteran is competent to report pain in the stomach, esophagus, and upper extremities that impairs their function.  Layno, Saunders, both supra.  He is competent to report that the pain is on his left hand side.  The Veteran is competent to relate what he has been told by a professional, including when hypertension, GERD, and neuralgia were diagnosed.  Jandreau, supra.  

The most probative evidence is the contemporaneous treatment records, including the STRs, and the findings of the August 2019 VA examiner with October 2019 VA addendum medical opinions.  First, the separation examination in the STRs showed no relevant complaints or clinical findings at separation.  The Veteran did not document any related upper extremity, vascular, esophageal, or abdominal complaints at separation.  He described his health as “Good.”  The Board assigns substantial probative weight to the contemporaneous treatment records.  

Second, the Board also assigns substantial probative weight to the detailed opinions of the August 2019 VA examiner.  The VA examiner reviewed the entire claims file, and provided detailed reasons and bases citing to evidence in the record.  We incorporate the VA examiner’s remarks, as quoted above, by reference.  The VA examiner rendered negative nexus opinions encompassing all theories of direct and secondary service connection, including aggravation, for each of the claimed disabilities.  The VA examiner considered the lay reports of the onset of the disease entities several decades after discharge.  The negative nexus opinions are supported by the objective evidence in the claims file, as cited to by the VA examiner.  The VA examiner also rendered negative nexus opinions for all theories of secondary service connection.  These are supported by reasons and bases citing to evidence in the claims file.  Therefore, we assign substantial probative weight to the negative nexus opinions of the August 2019 VA examiner.

Regarding direct and presumptive service connection, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entities in service.  Fibromyalgia, GERD, hypertension, and neuralgia of the left and right upper extremities were not manifest in service or within one year from separation, and are not otherwise attributable to service.  There is no probative evidence to the contrary.  In addition, the Board finds that while competent to report what he has been told by his physician and to report being told by his physician that he had the conditions in the 2000s, the Veteran’s own lay opinion regarding identifying a potential chronic disease entity pales in probative weight when compared to the objective medical evidence of record.  Additional causal evidence against the claims, and while not dispositive, is the lapse of so many years between discharge and the first documented reports of chronic conditions many decades after discharge.  This multi-year gap after service provides highly probative evidence against these claims.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

An alternative method of establishing the second and third Shedden element, under 38 C.F.R. § 3.303 (b), 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).  Consideration of entitlement to service connection via the demonstration of continuity of symptomatology is applicable in the present case.  However, the most probative evidence in the contemporaneous treatment records and August 2019 medical opinions does not demonstrate such continuity.  The August 2019 VA examiner described the Veteran’s medical history showing the remote onset of the claimed disease entities, namely fibromyalgia, neuralgia, and hypertension, approximately half a century after separation.  We have considered that the Veteran is competent to report what he has been told by a physician, however, his own lay history does not relate an earlier diagnosis.  Consequently, we find that service connection on a direct and presumptive basis for fibromyalgia, GERD, hypertension, and neuralgia of the left and right upper extremities is not warranted.  

Specifically with regard to claimed neuralgia of the right upper extremity, there is no evidence of disability.  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Indeed, the Veteran testified at the June 2018 hearing that the pain was on the left side.  This was later reconfirmed in the October 2019 VA addendum medical opinion.  The VA examiner emphasized, “Review of C-file shows no objective chronic symptoms or chronic diagnosis for right upper extremity neuralgia and there is 53 year gap since military service discharge with no objective chronic symptoms or chronic diagnosis for right upper extremity neuralgia AND VETERAN IS DENYING ANY RIGHT UPPER EXTREMITY NEURALGIA, therefore nexus is not established for right upper extremity neuralgia related to MS.”  Therefore, service connection for neuralgia of the right upper extremity must be denied as there is no current disability.  In reaching this conclusion, we have considered the Veteran’s own lay statements to the extent he is competent to report functional impairment due to pain.  See Saunders, supra; June 2018 Hearing Transcript, p. 7.  

Next, it appears the Veteran’s theory of entitlement to service connection for fibromyalgia, GERD, hypertension, and neuralgia of the left upper extremity is also one of secondary service connection.  More specifically, he contends that fibromyalgia, GERD, hypertension, and neuralgia of the left upper extremity are secondary to his service-connected PTSD and symptoms of anxiety.  38 C.F.R. § 3.310.  The Board has considered the evidence of record, and finds that fibromyalgia, GERD, hypertension, and neuralgia of the left upper extremity are not related to service, and are less likely than not proximately due to, the result of, or aggravated by any service connected disability.  For each of the claimed disabilities, the VA examiner indicated, “The claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service connected condition” for each of the claimed disabilities.   The VA examiner also rendered separate negative nexus opinions for aggravation, complete with supporting rationales.  For example, the VA examiner thoroughly explained, “Current literature on PTSD/Depression doesn’t support underlying pathology to cause/aggravation of left upper extremity neuralgia. Neuralgia is usually caused by either diabetes due to excess glucose, infection of the nerves (ie shingles, multiple sclerosis) or pressure on a nerve (ie bone, ligament, blood vessels or tumor).  Therefore nexus is not established that Veteran Service connected PTSD/Depression aggravated Veteran non service connected left upper extremity neuralgia beyond its natural progression.”  There is also no competent and probative evidence establishing that hypertension, fibromyalgia, or GERD are due to any service connected disease or injury.

The Board has assigned significant probative weight to the contemporaneous medical records, including the STRs, and the findings of the August 2019 VA examiner.  The VA examiner reviewed the STRs, VA treatment records, objective test results, and considered the Veteran’s lay history.  The VA examiner provided detailed reasons and bases.  The VA examiner rendered negative nexus opinions for all theories of entitlement.  We have found these to be the most probative evidence of record.  There is no competent evidence linking the claimed chronic disabilities to service, and as a lay person the Veteran is not competent to offer an opinion suggesting such a link.  We have considered direct service connection and theories of both a chronic disease manifesting within one year from separation and continuity of symptomatology where applicable.  38 C.F.R. §§ 3.303, 3.307, 3.309.  The most probative evidence establishes the remote onset of the disease entities.  There is also no nexus to PTSD or other service-connected disability.  38 C.F.R. § 3.310.  Additionally, we considered Saunders for all theories of entitlement.  Regarding the right upper extremity neuralgia, even assuming pathology were identified, though we do not concede this, there is still no nexus.  The Veteran has been afforded comprehensive VA examinations with medical opinions.  There is no doubt to resolve.  Therefore, service connection for fibromyalgia, GERD, hypertension, and neuralgia of the left and right upper extremities, all to include as secondary to service-connected PTSD, is not warranted.

9. Entitlement to service connection for prostatitis, to include as secondary to service-connected PTSD

The Board incorporates its discussion from the sections above by reference.

By way of background, the February 1966 Report of Medical Examination from separation in the STRs disclosed a clinically normal evaluation of the G-U system and endocrine system.  In the contemporaneous Report of Medical History, the Veteran denied frequent or painful urination, venereal disease, and sugar or albumin in urine.  

The Veteran was afforded an August 2019 VA examination.  The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination.  The VA examiner only identified prostatitis.  The Veteran reported that prostatitis was diagnosed in 2008 during a routine medical office visit.  It is stable.  He reported no symptoms. First, the VA examiner rendered a negative nexus opinion for direct service connection.  The VA examiner reasoned, “[T]he veteran[’]s erectile dysfunction and prostatitis is not SC veteran did not have any reproductive complaints while on active duty, the veteran does not have a[n] erectile dysfunction diagnosis.”  The VA examiner similarly rendered a negative nexus opinion regarding aggravation.  The VA examiner explained, “[T]he veteran[’]s erectile dysfunction and prostatitis is not SC veteran did not have any reproductive complaints while on active duty, the veteran does not have a documented diagnosis of erectile dysfunction.”  Lastly, the VA examiner opined, “The claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service connected condition.”  

A related October 2019 addendum medical opinion shows the additional rationale, “The Veteran is SC of PTSD which is a psychosocial disorder and does not affect or aggravate the Veterans prostatitis condition which is a biological inflammatory condition. [T]herefore a nexus cannot be established.”  

The Veteran contends that he is entitled to service connection for prostatitis, to include as secondary to service-connected PTSD.

The Veteran is competent to report any impairment of voiding or other prostate symptoms.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Veteran is competent to relate what he has been told by a professional, including when prostatitis was diagnosed.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The most probative evidence is the contemporaneous treatment records, including the STRs, and the findings of the August 2019 VA examiner.  First, the STRs show no G-U or vascular findings at separation, and that the Veteran did not document any related prostate or urinary complaints at separation.  He described his health as “Good.”  The Board assigns substantial probative weight to the contemporaneous treatment records.  

Second, the Board also assigns substantial probative weight to the medical opinion of the August 2019 VA examiner.  The VA examiner reviewed the entire claims file, and provided detailed reasons and bases.  The VA examiner rendered negative nexus opinions encompassing all theories of direct and secondary service connection, including aggravation.  The VA examiner considered the reports of prostatitis diagnosed from 2008.  The VA examiner explained, “[T]he veteran[’]s erectile dysfunction and prostatitis is not SC veteran did not have any reproductive complaints while on active duty, the veteran does not have a documented diagnosis of erectile dysfunction.”  This is supported by the medical evidence in the claims file, as cited to by the VA examiner.  The VA examiner also rendered negative nexus opinions for secondary service connection, including aggravation.  Therefore, we assign substantial probative weight to the negative nexus opinions of the August 2019 VA examiner.

Regarding direct service connection, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entity in service.  It was not manifest in service and is not attributable to service.  There is no probative evidence to the contrary.  In addition, the Board finds that while competent to report what he has been told by his physician and to report being told by his physician that he had a prostate condition in 2008, the Veteran’s own lay opinion regarding identifying a potential chronic disease entity pales in probative weight when compared to the objective medical evidence of record.  Additional causal evidence against the claims, and while not dispositive, is the lapse of so many years between discharge and the first documented findings of asymptomatic prostatitis many decades after discharge.  This multi-year gap after service provides highly probative evidence against these claims.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Consequently, we find that service connection on a direct basis for prostatitis is not warranted.  

Here, it appears the Veteran’s central theory for entitlement to service connection for a prostatitis is also one of secondary service connection.  More specifically, he contends that prostatitis is secondary to his service-connected PTSD.  38 C.F.R. § 3.310.  The Board has considered the evidence of record, and finds that a prostate disability diagnosed as prostatitis is not related to service, and is less likely than not proximately due to, the result of, or aggravated by any service connected disability.  The VA examiner indicated, “The claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service connected condition.”  The VA examiner also rendered a separate negative nexus opinion for aggravation, complete with supporting rationale.  The VA examiner opined, “The Veteran is SC of PTSD which is a psychosocial disorder and does not affect or aggravate the Veterans prostatitis condition which is a biological inflammatory condition. [T]herefore a nexus cannot be established.”  

The Board has assigned significant probative weight to the contemporaneous medical records, including the STRs, and the findings of the August 2019 VA examiner.  The VA examiner reviewed the STRs, VA treatment records, objective testing findings, and considered the Veteran’s lay history.  The VA examiner rendered negative nexus opinions for all theories of entitlement.  The VA examiner provided detailed reasons and bases.  We have found these to be the most probative evidence of record.

In short, we have considered all theories of direct and secondary service connection.  The Veteran has been afforded a comprehensive VA examination with medical opinions.  There is no doubt to resolve.  Therefore, service connection for prostatitis, to include as secondary to service-connected PTSD is not warranted.

10. Entitlement to service connection for sleep apnea disorder, to include as secondary to service-connected PTSD

The Board incorporates its discussion from the sections above by reference.

By way of background, sleep apnea is defined as transient periods of cessation of breathing during sleep.  The two primary types are central sleep apnea and obstructive sleep apnea.  See Dorland’s Illustrated Medical Dictionary, 118 (31st ed. 2007).  Obstructive sleep apnea is defined as sleep apnea resulting from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep.  Id. 

Next, the February 1966 Report of Medical Examination from separation in the STRs disclosed a clinically normal evaluation of the lungs and chest, mouth and throat, and head, face, neck, and scalp.  In the contemporaneous Report of Medical History, the Veteran denied frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort.  

Years later, the Veteran presented to VA for treatment.  The physician considered the results of a November 8, 2013 sleep study consult performed at Pulmonary and Sleep Center at the Valley.  A physician signed off on the findings on December 23, 2013.  He remarked, “I think that we should try to treat the patient with auto titrating CPAP and perform close followup.”  Later, in September 2014, the Veteran began receiving care for Obstructive Sleep Apnea (OSA), including for snoring.  He was not using a continuous positive airway pressure (CPAP) daily.

The Veteran testified at the June 2018 hearing regarding his theory of secondary service connection.  He explained, “I’m already feeling my anxiety, and that’s what’s bothering me the most, anxiety. And then loss of sleep. I have a hard time sleeping, a hard time trying to fall asleep, and then I sleep for a couple of hours, I wake up, and I go back to sleep. Those are my natural (inaudible).”  See June 2018 Hearing Transcript, p. 6.

The following year, a July 2019 VA problem list includes obstructive sleep apnea.  An August 30, 2019 VA treatment record shows that the Veteran was educated about the use of a CPAP machine, and one was issued.  A recent sleep study was reviewed, and he was given various medical guidance.  Additional VA treatment records show impressions of and treatment for sleep apnea, and are substantially the same.  

Next, the Veteran was afforded an August 2019 VA examination to determine the nature and etiology of sleep apnea.  The VA examiner opined that the Veteran had sleep apnea.  The Veteran’s history was described as having sleep apnea with a date of onset in 2008.  The Veteran’s lay history placed the onset to 2007, and he averred that it is related to active service.  The VA examiner ultimately rendered a negative nexus opinion for direct service connection.  The VA examiner opined that a nexus has not been established.  Regarding secondary service connection, the VA examiner rendered a negative nexus opinion.  The VA examiner explained, “The two conditions are not medically related. The claimed sleep apnea is a separate entity entirely from the service connected condition and unrelated to it. A nexus has not been established.”  The VA examiner also rendered a negative nexus opinion for aggravation.  The VA examiner remarked, “[T]he veteran[’]s claimed condition is highly unlikely to have been aggravated by his service connected condition.”  Later, in an October 2019 VA addendum medical opinion, the VA examiner clarified, “The Veterans sleep apnea condition which has been long standing (upon re-review) is still not service connected. The Veteran[’s] sleep apnea is a mechanical obstruction condition and therefore could not be caused by a psychosocial condition such as PTSD, tinnitus or bilateral hearing loss.”

The Veteran is competent to provide evidence of some symptoms of obstructive sleep apnea, such as difficulty sleeping and snoring, though not an actual “apnea” because one must be awake to observe such.  Other lay persons are competent to report symptoms and sleep difficulties that the Veteran experienced, including apneas, as such symptoms are readily apparent.  Jandreau, 492 F.3d at 1372 (lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis).  He is also competent to report that he has had difficulty sleeping since service, and that sleep apnea was ultimately diagnosed in 2007.

Here, the STRs show that the Veteran’s sleep apnea was not manifest in service or for several decades after separation.  Sleep apnea was not noted or manifest during service.  The most probative evidence is the STRs, VA treatment records, and August 2019 VA examination with medical opinion establishing a remote onset of sleep apnea several decades after discharge.  VA treatment records show that sleep apnea was not identified until November 2013 by way of a private sleep study.  The VA examiner reviewed the entire claims file, and rendered negative nexus opinions for direct, secondary, and a theory of entitlement based upon aggravation.  The VA examiner documented the onset of sleep apnea many years after separation.  The Board finds this to be highly probative.

Here, it appears the Veteran’s central theory for entitlement to service connection for sleep apnea is also one of secondary service connection.  More specifically, he contends that sleep apnea is secondary to his service-connected PTSD with symptoms of anxiety, and tinnitus.  38 C.F.R. § 3.310.  Service connection has been established for PTSD and tinnitus.  The Board has considered the evidence of record, and finds that sleep apnea is not related to service, and is less likely than not proximately due to, the result of, or aggravated by any service connected disability.  The VA examiner provided conclusive negative nexus opinions for each theory of entitlement based upon a review of the claims file, consideration of the Veteran’s lay history, and medical expertise regarding the nature of sleep apnea.  The VA examiner also rendered a separate negative nexus opinion for aggravation, complete with supporting rationale.  Regarding the Veteran’s central secondary service connection contentions, the VA examiner provided a robust rationale by way of the October 2019 VA addendum medical opinion, “The Veterans sleep apnea condition which has been long standing (upon re-review) is still not service connected.  The Veterans sleep apnea is a mechanical obstruction condition and therefore could not be caused by a psychosocial condition such as PTSD, tinnitus or bilateral hearing loss.”  This negative nexus opinion encompasses all possible theories of secondary service connection, including proximate cause and aggravation.  We assign substantial probative weight to these findings.

In sum, the Veteran’s own opinion warrants less probative value when compared with the objective contemporary medical evidence of record.  Sleep apnea was diagnosed many decades after discharge by way of a November 2013 sleep study, and the Veteran only began using a CPAP in 2019.  The Board has considered his lay statements regarding his symptoms and their onset, to the extent they are competent.  However, the record establishes that he did not have the characteristic manifestations necessary to identify the disease entity in service, and the remote onset of sleep apnea is unrelated to in-service events.  Although daytime sleepiness and snoring alone may be indicators, it is not consistent with the definition.  The contemporaneous service records were normal and silent for any difficulty with nighttime breathing cessation.  The most probative evidence shows that the Veteran’s sleep apnea first manifest decades after discharge, and is not related to service.  See Maxson, supra.  Moreover, the most probative evidence in the VA examiner’s opinion establishes that sleep apnea is not proximately due to, the result of, or aggravated by service connected disease or injury, including PTSD.  38 C.F.R. § 3.310.  There is no doubt to resolve.  Consequently, service connection for sleep apnea is not warranted.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims.  As such, the benefit of the doubt rule is not for application, and the claims must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

REASONS FOR REMAND

A remand is necessary for additional development.

1. Entitlement to service connection for otitis externa, to include as secondary to service-connected PTSD, bilateral hearing loss disability, and tinnitus is remanded.

The Board incorporates its discussion from the sections above by reference.

By way of background, a November 29, 1965 STR shows a diagnostic impression of otitis externa.  The February 1966 Report of Medical Examination from separation in the STRs disclosed a clinically normal evaluation of the ears – general and ear drums.  In the contemporaneous Report of Medical History, the Veteran denied skin diseases, ear, nose, or throat trouble, and running ears.  

Decades later, the Veteran was afforded an April 2015 VA ear examination.  The VA examiner documented otitis externa, with a date of onset of 1965.  However, in the medical history, it shows that the date of onset of symptoms is unknown.  The VA examiner then remarked that there is no pathology to render a diagnosis for otitis externa. 

Later, the Veteran was afforded an August 2019 VA examination of the ears with medical opinions.  It shows an unchecked box for chronic otitis extra and other forms of otitis.  There is only a diagnosis of vertigo, as already discussed above.  Next, the VA examiner rendered a negative nexus opinion for direct and secondary service connection.  Regarding secondary service connection, the VA examiner explained, “The two conditions are not medically related.  The claimed disorder is a separate entity entirely from the service connected condition and unrelated to it.  The medical literature does not support a medical relationship.  A nexus has not been established.”  However, the VA examiner does not specify which conditions, and did not discuss which two disabilities are not related.  The July 2018 Remand directives reference a medical opinion considering a possible secondary relationship that includes PTSD, bilateral hearing loss disability, and tinnitus.  Next, regarding aggravation, the opinion includes a remark of, “[T]he veteran[’]s left upper extremity neurologia/fibromyalgia is not related to his SC conditions.”  This does not match the Ear Disability Benefits Questionnaire (DBQ) referenced in the restatement of requested opinion in Section II.  

Therefore, a remand is necessary for additional development in compliance with the Board’s July 2018 Remand directives and to afford the Veteran a supplemental VA medical opinion.  The Board observes that compliance by the Board or the RO with remand instructions is neither optional nor discretionary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  On remand, the VA examiner should also specifically address the notation of otitis externa in service, as required in the Remand directives.  Consequently, a remand is necessary to obtain a new VA medical opinion that includes all necessary information in full compliance with the previous Remand directives.

2. Entitlement to special monthly compensation (SMC) based on loss of use is remanded.

The Board incorporates its discussion from the sections above by reference.  

By way of background, the purpose behind SMC (k) is to compensate Veterans who have service connected disabilities involving the anatomical loss or loss of use of certain body parts or when there is impairment of certain senses.  The Board observes that the criteria for SMC based on loss of use include hearing impairment, and the Veteran is being afforded a new VA ears examination.  Consistent with our approach in the prior July 2018 Remand, the Veteran’s claim of entitlement to SMC based on loss of use is inextricably intertwined with the service connection claim being remanded, thus the Board will defer consideration of the appeal with regard to this issue.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).  

The matters are REMANDED for the following action: 

1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder.

2. Please obtain a supplemental VA medical opinion regarding the nature and etiology of otitis externa.  The Veteran need not be examined in person unless he requests so, or unless deemed beneficial by the VA examiner.  

After reviewing the entire claims file, the VA examiner must address the following: 

(a) Verify any current ear disability, to include otitis externa. 

(b) For each disability identified in (a), the examiner must opine whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s currently diagnosed disability had its onset or is otherwise related to the Veteran’s service.  

The VA examiner should comment on a November 29, 1965 Service Treatment Record (STR) showing a diagnostic impression of otitis externa in service.

(c) For each disability identified in (a), the examiner must opine whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s diagnosed disability was proximately due to, the result of, or aggravated (increased in severity) by the Veteran’s service-connected disabilities, to include service-connected PTSD, bilateral hearing loss, and tinnitus. 

The VA examiner is directed to consider and address any discrepancies with the Veteran’s VA treatment records and with the April 2015 VA examination of the Veteran’s ears (noting a diagnosis of otitis externa). 

If the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of the severity of the nonservice-connected disorder before the on-set of aggravation. “Aggravation” is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. 

The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it.

A detailed rationale for the opinion must be provided. Review of the entire claims file is required. 

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal.  If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and afford them a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Bodi, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.