Citation Nr: 20023089 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 18-52 392 DATE: April 3, 2020 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for erectile dysfunction (ED) is granted. Entitlement to service connection for dry eye syndrome is granted. REMANDED Entitlement to an evaluation in excess of 10 percent for DJD, lumbar spine, is remanded. Entitlement to an evaluation in excess of 10 percent for arthritis, left thumb, also claimed as loss of range of motion, numbness and tingling, pain on motion, broken bones, deformed joints and rheumatoid arthritis (hereinafter left thumb arthritis), is remanded. Entitlement to an evaluation in excess of 10 percent for arthritis, right middle finger, also claimed as loss of range of motion bilateral hands, arthritis, numbness, tingling, pain on motion, broken bones, deformed joints and rheumatoid arthritis (hereinafter right middle finger arthritis), is remanded. Entitlement to service connection for bilateral foot bone spurs, claimed as plantar fascitis, is remanded. Entitlement to service connection for bilateral foot hallux valgus, claimed as hallux rigidus, is remanded. Entitlement to service connection for a right shoulder condition is remanded. FINDINGS OF FACT 1. After affording the Veteran the benefit of the doubt, his OSA manifested during his active military service, has been consistently reported since separation from service, and it is related to his military service. 2. After affording the Veteran the benefit of the doubt, his ED manifested during his active military service, has been consistently reported since separation from service, and it is related to his military service. 3. After affording the Veteran the benefit of the doubt, his dry eye syndrome manifested during his active military service, has been consistently reported since separation from service, and it is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.159 (2019). 2. The criteria for service connection for ED have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.159 (2019). 3. The criteria for service connection for dry eye syndrome have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.159 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1984 to August 1995 and from November 1997 to May 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA). In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the central office. The Veteran testified at the hearing that his representative, the Military Officers Association of America, no longer provides VSO services. Thus, the Board recognized the Veteran’s decision to represent himself at the hearing. The Board notes an April 2014 rating decision denied service connection for bilateral heel spurs, bilateral hallux valgus, OSA, right shoulder impingement, ED, and dry eye syndrome. The Veteran was notified of that decision in April 2014 correspondence. He did not appeal the decision, but new and material evidence was submitted within a year of the decision. Therefore, the decision never became final. The Board also notes that the issue of entitlement to service connection for a left shoulder impingement is not presently on appeal as the agency of original jurisdiction (AOJ) granted service connection for the issue in a September 2018 rating decision. After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for right shoulder impingement to encompass any right shoulder condition, to include arthritis. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2019); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for OSA is granted. The Veteran seeks service connection for obstructive sleep apnea. At the February 2020 Board hearing, the Veteran testified that his currently diagnosed OSA began in-service. The Veteran stated that the condition was diagnosed in 2013 and noted on his separation physical. See February 2019 Correspondence. The Veteran also stated that he is currently prescribed a CPAP machine to treat his condition. See February 2020 Hearing Transcript. Upon review of the competent evidence of record, the Board finds that service connection is warranted. Initially, the Board notes there is a current diagnosis of and treatment for OSA. See February, April 2016, June 2017, June 2018, July 2018 Outpatient Treatment Records. Moreover, a review of the record, reflects that the Veteran was diagnosed with OSA in-service and received treatment for OSA up until his discharge from active duty service. See March, April, May 2013 Service Treatment Records. There simply is no competent evidence to disassociate the current diagnosis of OSA from that in service. As such, service connection is warranted. 2. Entitlement to service connection for ED is granted. The Veteran seeks service connection for erectile dysfunction (ED). At the February 2020 Board hearing, the Veteran testified that his currently diagnosed ED began in-service. The Veteran stated that the condition arose in October 2011 and was noted on his separation physical. See February 2019 Correspondence. The Veteran also noted that he is currently prescribed a prescription to treat his condition. Id. Upon review of the competent evidence of record, the Board finds that service connection is warranted. The Board notes that the Veteran has a current diagnosis of ED. Indeed, outpatient treatment records reflect that the Veteran received an increased dosage of a prescription for his diagnosed erectile dysfunction in June 2017. In addition, the Veteran testified to his condition at the February 2020 Board hearing. Moreover, service treatment records show that the Veteran noted occasional symptoms of ED starting in October 2011 until separation from service. See also October 2012, May 2013 Service Treatment Records. A May 2013 military treating provider diagnosed the Veteran with erectile dysfunction and a penis disorder. The treating provider stated that the Veteran’s back pain or nerve impingement may be causing numbness of the penis. The Veteran’s weight gain over the years causes pressure from excess tissue in the pelvic region that pushes down on the penis giving the perception that penis is smaller or foreskin is returning. See Id. Therefore, element (2), in-service incurrence or aggravation of the claimed in-service injury, erectile dysfunction, has been met. Finally, there simply is no competent evidence to disassociate the current diagnosis of ED from that in service. As such, service connection is warranted. 3. Entitlement to service connection for dry eye syndrome is remanded. The Veteran seeks service connection for dry eye syndrome. At the February 2020 Board hearing, the Veteran testified that his currently diagnosed dry eye syndrome began in-service, is currently diagnosed, and he is required to use eye drops every morning to treat this disability. Upon review of the competent evidence of record, the Board finds that service connection is warranted. Outpatient treatment records reflect that the Veteran is currently diagnosed with dry eye syndrome and is prescribed eye drops to treat the condition. See February 2016 Military Hospital Records. In addition, the Veteran testified to his condition at the February 2020 Board hearing. Service treatment records show the Veteran noted symptoms of eye dryness since his in-service LASIK procedure in May 2004. See e.g. May 2004 Service Treatment Records; see also February 2019 Correspondence. The Veteran also noted on his separation report of medical history that he suffers from dry eyes attributable to his May 2004 LASIK surgery. See March 2013 Service Treatment Records. There simply is no competent evidence to disassociate the current diagnosis of dry eye syndrome from that in service. As such, service connection is warranted. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for DJD, lumbar spine, is remanded. At the February 2020 Board hearing, the Veteran testified that his lumbar spine disability had worsened since the last VA examination in May 2015. Specifically, the Veteran reported that he suffers bad days, or flare ups of his back condition. As the evidence of record suggests his service-connected disability has increased in severity since the most recent VA examination in 2015, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). As the matter is remanded, the agency of original jurisdiction (AOJ) should locate the Veteran’s updated VA treatment records and his recent military medical treatment, to include treatment at Fort Belvoir and Walter Reed. 2. Entitlement to an evaluation in excess of 10 percent for left thumb arthritis is remanded. At the February 2020 Board hearing, the Veteran testified that his left thumb arthritis had worsened since the last VA examination in March 2015. Specifically, the Veteran reported that he underwent wrist surgery since 2015, suffers from carpal tunnel syndrome, and generally asserts worsening of his left thumb condition. As the evidence of record suggests his service-connected disability has increased in severity since the most recent VA examination in 2015, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to an evaluation in excess of 10 percent for right middle finger arthritis is remanded. At the February 2020 Board hearing, the Veteran testified that his right middle finger arthritis had worsened since the last VA examination in March 2015. Specifically, the Veteran reported that he underwent wrist surgery since 2015, suffers from carpal tunnel syndrome, and generally asserts worsening of his right middle finger condition. As the evidence of record suggests his service-connected disability has increased in severity since the most recent VA examination in 2015, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 4. Entitlement to service connection for a right shoulder condition is remanded. The Veteran states that his right shoulder impingement is related to his active duty miliary service. See December 2014 Fully Developed Claim. Service treatment records reflect that the Veteran suffered a bilateral shoulder injury in May 2005 and February 2008. The records show that the Veteran’s February 2008 right shoulder injury improved during rehabilitation therapy. See January 2010, June 2010, July, October 2010 Private Treatment Records. However, March 2011 service treatment records noted abnormal movement of both shoulders. In addition, the Veteran provided military hospital records that reflect degenerative changes in both AC joints. See March 2015 Military Hospital Records. Physical therapy records also showed decreased right shoulder range of motion, positive results for empty can testing, and positive results for Hawkins testing. Given the evidence of record and the Board’s decision to apply Clemons to expand the issue to include all right shoulder conditions, an examination should be afforded. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to service connection for bilateral foot bone spurs, claimed as plantar fascitis, is granted. The Veteran states that his bilateral foot bone spurs were diagnosed in-service and are presently diagnosed. See February 2019 Correspondence. The Veteran was afforded a March 2015 VA examination. The examiner viewed x-rays of the Veteran’s feet and diagnosed him with degenerative arthritis of the MP joints of his big toes. However, the examiner did not address any other foot diagnoses, or the Veteran’s in-service medical history of foot injuries. Therefore, the Board finds the March 2015 VA examination inadequate for failing to consider the evidence of record. Therefore, remand is necessary for a new examination. The Board notes the Veteran’s statement that his December 2018 treatment records reflect diagnoses of bone spurs and plantar fascitis. See February 2019 Correspondence; see also December 2018 Outpatient treatment records. On remand, the examiner should conduct the necessary diagnostic tests to determine the Veteran’s present foot disabilities. The examiner should then review and address the Veteran’s in-service reports of foot pain relating to bone spurs and plantar fascitis and his diagnoses and treatment of record. See May 1998, August 2005, March 2006, August 2008, September 2008, and April 2013. 6. Entitlement to service connection for bilateral foot hallux valgus, claimed as hallux rigidus, is granted. The Veteran states that his bilateral foot hallux valgus were diagnosed in-service and are presently diagnosed. See February 2019 Correspondence. The Veteran was afforded a March 2015 VA examination. The examiner viewed x-rays of the Veteran’s feet and diagnosed him with degenerative arthritis of the MP joints of his big toes. However, the examiner did not address any other foot diagnoses, the Veteran’s in-service medical history of foot injuries, or whether the Veteran suffered from functional impairment of his feet. Therefore, the Board finds the March 2015 VA examination inadequate for failing to consider the evidence of record and remand is necessary for a new examination. The Board notes the Veteran’s statement that his December 2018 treatment records reflect diagnoses of hallux valgus and hallux rigidus. See February 2019 Correspondence; see also December 2018 Military Treatment Records. However, the December 2018 records do not reflect any testing or any diagnoses. Instead, the doctor lists the Veteran’s reports of a history of hallux valgus and hallux rigidus. While the Veteran is competent to report his symptoms, he is not competent to diagnose his conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). On remand, the examiner should conduct the necessary diagnostic tests to determine the Veteran’s present foot disabilities. The examiner should then review and address the Veteran’s in-service reports of foot pain and his diagnoses and treatment of record relating to hallux valgus and hallux rigidus. See June 1995, May 1998, September 2003, June 2005, December 2005, March 2006, March 2008, September 2008, April 2011, and April 2013 Service Treatment Records. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from January 2016 to the present. 2. The AOJ should obtain medical treatment records from Walter Reed National Military Medical Center and Fort Belvoir Community Hospital. Because such records are presumably in the custody of a Federal department or agency, the amount of effort needed to be expended in obtaining these records is governed by 38 C.F.R. § 3.159(c)(2). If such records are not received pursuant to the AOJ’s request, the Veteran should be so notified and the AOJ’s efforts should be documented in the claim file. 3. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any foot disability and/or right shoulder disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all right shoulder disabilities present during the appeal period (from December 2014). Please note that the Veteran has previously been diagnosed with bilateral AC joint degeneration. Please conduct all necessary diagnostic testing for these conditions. (b.) Please identify, by diagnosis, all foot disabilities present during the appeal period (from December 2014). Please note that the Veteran has previously been diagnosed with bone spurs, plantar fascitis, hallux valgus, and hallux rigidus in-service. Please conduct all necessary diagnostic testing for these conditions. (c.) For each right shoulder disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (d.) For each foot disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. After the development in the first instruction is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected lumbar spine DJD, left thumb arthritis, and right middle finger arthritis. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Lederman, 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.