Citation Nr: 21000806 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-33 194 DATE: January 6, 2021 ORDER Service connection for diabetes mellitus, type II is denied. Service connection for erectile dysfunction is denied. REMANDED Entitlement to service connection for aortic valve stenosis and coronary artery disease (previously claimed as calcific aortic stenosis with chest pain) is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for acquired psychiatric disorder including major depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus, type II was first shown many years after active service and therefore did not begin during service and is not otherwise related to an in-service injury or disease. 2. The Veteran’s erectile dysfunction was first shown many years after active service and therefore did not begin during service and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 2. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1969 to January 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2011 and November 2014 rating decisions of a regional office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in December 2015 and most recently in August 2017 where it was remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for erectile dysfunction. As explained below, the Board finds that service connection is not warranted. The Veteran has not advanced any specific contention regarding his Type II diabetes (claimed as impaired fasting glucose) and erectile dysfunction other than his general claim for service connection, which was denied by rating action of November 2014. While the record shows current diagnoses of diabetes mellitus, type II and erectile dysfunction, the Board notes that a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. To that end, the Board finds probative the objective medical evidence of record including a January 2020 VA examiner’s opinion indicating that a formal diagnosis of Type II diabetes mellitus was noted in 2016, which is approximately 43 years post active duty. The same VA examiner added that the Veteran’s erectile dysfunction started with the onset of Peyronie’s disease in 2009, which is approximately 36 years after separation. The Board observes that the passage of many years between discharge from active service and medical documentation of a claimed disability may be considered as evidence that weighs against a claim for service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). Essentially, there is no objective evidence of record or medical opinion even suggesting that diabetes mellitus, type II or erectile dysfunction may be associated with service. Moreover, the Veteran has not submitted any evidence to the contrary. As to presumptive service connection based on chronic disease, as discussed above, there is no persuasive evidence of record that shows a diagnosis of diabetes mellitus type II within one year of separation from the service or that symptoms of the diseases manifested to a compensable degree within a year of his discharge from service. See 38 C.F.R. §§ 3.303(b), 3.309. Lastly, while the Veteran is competent to report symptoms observable to a layperson, to the extent that he seeks to establish a nexus between a current disability and service, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise and the ability to interpret diagnostic medical testing. Davidson v. Shinseki, 581 F.3d 1313 (2009). Accordingly, there is no reliable competent evidence that the Veteran’s diabetes mellitus, type II or erectile dysfunction began during service, or that the disorders are otherwise related to service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for diabetes mellitus, type II. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claims must be denied. REASONS FOR REMAND 3. Entitlement to service connection for aortic valve stenosis and coronary artery disease (CAD). The record shows a February 2011 VA examiner’s opinion finding the veteran’s aortic valve stenosis not a result of an isolated episode of chest pain during active duty. The examiner added mild CAD is also less likely due to service as there is no objective evidence of CAD in service. However, the Veteran’s counsel contends that the “examiner failed to consider aggravation from the Veteran’s service-connected asbestosis with shortness of breath when denying service connection for this claim.” See Appellant’s Brief dated May 2020. The Veteran submitted a private opinion dated April 2017 from a non-treating physician, H.S., M.D., stating, “I believe it is as likely as not that [the veteran’s] aortic valve stenosis and coronary artery disease has been caused by and permanently aggravated by his service connected asbestosis and exposure to asbestosis. It is my opinion that it is not possible to differentiate between the etiology of the veteran’s possible bileaflet valve and asbestos exposure to his heart disease and they both can contribute equally.” See Statement from H.S., M.D. dated April 2017, received May 2020. Given that development was not accomplished on secondary service connection theory of entitlement, which was raised by the record, an adequate opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, an additional opinion is necessary. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for obstructive sleep apnea. In compliance with the Board’s August 2017 remand, the Veteran was afforded VA examinations and development accomplished on direct service connection. A January 2020 VA examiner found no objective evidence providing a nexus between the veteran’s headache condition and service. The same examiner also found “obstructive sleep apnea did not have onset during the Veteran’s active service or is otherwise causally related to his service. However, the record shows secondary theory of entitlement was raised by the Veteran in September 2016. The Veteran also submitted Disability Benefits Questionnaires (DBQ) completed by a non-treating physician, H.S., M.D., who opined the veteran’s headaches were caused by tinnitus, and that the veteran’s “service-connected asbestosis aided in the development of and permanently aggravate obstructive sleep apnea.” See Appellant’s Brief dated September 2016 and Headaches and Sleep Apnea DBQs dated September 2016. Further, the Veteran’s counsel contends that the January 2020 VA examiner “gave a negative opinion for direct service connection of headaches but did not consider secondary service connection.” See Appellant’s Brief dated May 2020. Likewise, for obstructive sleep apnea, the Veteran states the examiner “failed to consider secondary service connection.” Id. Given that development was not accomplished on secondary service connection theory of entitlement, which was raised by the record, an adequate opinion is necessary. Barr, 21 Vet. App. at 303. Thus, an addendum opinion is necessary. 6. Entitlement to service connection for acquired psychiatric disorder including major depressive disorder. In compliance with the Board’s August 2017 remand, the Veteran was afforded a VA mental disorders examination in January 2020 where the VA physician found the veteran’s depression was anxiety less likely related to his miliary service. However, the Veteran’s counsel states the examiner “failed to consider a secondary basis to his other service-connected conditions and conditions which are also on appeal.” See Appellant’s Brief dated May 2020. The Veteran raised a secondary theory of entitlement and submitted a private opinion dated July 2016 from a non-treating clinical examiner, R.W., PsyD., finding the Veteran’s “depressive disorder being as more likely than not caused/aggravated by functional impairments and limitations resulting from his service connected asbestos with shortness of breath, tinnitus and bilateral sensorineural hearing loss.” See Mental Disorders DBQs dated July 2016. Given that development was not accomplished on secondary service connection theory of entitlement, which was raised by the record, an adequate opinion is necessary. Barr, 21 Vet. App. at 303. Thus, an addendum opinion is necessary. 7. Entitlement to a TDIU. As the development ordered above could result in information relevant to the TDIU claim, the Board finds the issues are inextricably intertwined and therefore the issue of entitlement to TDIU must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Heart disability Obtain a medical opinion from an appropriate VA medical professional for the Veteran’s aortic valve stenosis and coronary artery disease (CAD). The electronic claims file must be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After reviewing the claims file, the examiner is to provide an opinion on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s aortic valve stenosis and CAD was caused by his service-connected asbestosis with shortness of breath? Is it at least as likely as not (50 percent or greater probability) that the Veteran’s aortic valve stenosis and CAD was aggravated by his service-connected asbestosis with shortness of breath? The examiner should consider medical evidence of record (VA medical opinions dated February 2011 and November 2011 and private opinion from H.S., M.D. dated April 2017). A complete rationale for all findings and conclusions is requested. 2. Headaches Arrange for the examiner who conducted the January 2020 VA headaches examination to provide an addendum opinion. If the examiner is not available, the request may be referred to another, equally qualified medical professional, who must independently review the electronic claims folder. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After reviewing the claims file, the examiner is to provide an addendum opinion on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s headaches were caused by his service-connected tinnitus? Is it at least as likely as not (50 percent or greater probability) that the Veteran’s headaches were aggravated by his service-connected tinnitus? The examiner should consider medical evidence of record (including Headaches DBQ and private opinion from H.S., M.D. dated September 2016). A complete rationale for all findings and conclusions is requested. 3. Sleep Apnea Arrange for the examiner who conducted the January 2020 VA sleep apnea examination to provide an addendum opinion. If the examiner is not available, the request may be referred to another, equally qualified medical professional, who must independently review the electronic claims folder. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After reviewing the claims file, the examiner is to provide an addendum opinion on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused by his service-connected asbestosis with shortness of breath? Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was aggravated by his service-connected asbestosis with shortness of breath? The examiner should consider medical evidence of record (including Sleep Apnea DBQ and private opinion from H.S., M.D. dated September 2016). A complete rationale for all findings and conclusions is requested. 4. Mental Disorder Arrange for the examiner who conducted the January 2020 VA mental disorder examination to provide an addendum opinion. If the examiner is not available, the request may be referred to another, equally qualified medical professional, who must independently review the electronic claims folder. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After reviewing the claims file, the examiner is to provide an addendum opinion on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder was caused by his service-connected disabilities, including the functional impairments and limitations resulting from his service-connected disabilities? Is it at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder was aggravated by his service-connected disabilities, including the functional impairments and limitations resulting from his service-connected disabilities? The examiner should consider medical evidence of record (including Mental Disorders DBQ and private opinion from R.W., PsyD. dated July 2016). A complete rationale for all findings and conclusions is requested. 5. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable to the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.