Citation Nr: 21002353 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-43 696 DATE: January 13, 2021 ORDER The Veteran’s petition to reopen his claim of entitlement to service connection for atrial fibrillation is granted. The Veteran’s petition to reopen his claim of entitlement to service connection for erectile dysfunction is granted. The Veteran’s petition to reopen his claim of entitlement to service connection for sleep apnea is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. Entitlement to service connection for fibromyalgia is denied. Entitlement to special monthly compensation (SMC) for aid and attendance is granted. Entitlement to a rating in excess of 50 percent for peritoneal adhesions is denied. REMANDED Entitlement to service connection for atrial fibrillation is remanded. Entitlement to service connection for Type II diabetes mellitus is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for an enlarged prostate is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a rating in excess of 40 percent for a thoracolumbar spine disability is remanded. FINDINGS OF FACT 1. The appeal of an October 2006 rating decision denying entitlement to service connection for atrial fibrillation and erectile dysfunction was subsequently withdrawn by the Veteran. 2. An unappealed January 2009 rating decision denied entitlement to obstructive sleep apnea. 3. The evidence received by VA since the October 2006 decision that denied service connection for erectile dysfunction and atrial fibrillation raise the reasonable possibility that the Veteran will prevail on his claims. 4. The evidence received by VA since the January 2009 decision that denied service connection for sleep apnea raises the reasonable possibility that the Veteran will prevail on his claim. 5. The Veteran’s GERD is proximately due to his service-connected peritoneal adhesions. 6. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis for fibromyalgia at any time during or approximate to the pendency of the claim. 7. The Veteran’s service-connected disabilities result in the need of regular aid and attendance of another person. 8. For the period on appeal, the Veteran’s service-connected peritoneal adhesions have been rated as 50 percent disabling, which is the maximum schedular rating permitted for peritoneal adhesions. CONCLUSIONS OF LAW 1. The October 2006 rating decision denying service connection for erectile dysfunction and atrial fibrillation is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The January 2009 rating decision denying to service connection for obstructive sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been received since the October 2006 rating decision denying service connection for erectile dysfunction and atrial fibrillation. 38 U.S.C. § 501; 38 C.F.R. § 3.156. 4. New and material evidence has been received since the January 2009 rating decision denying service connection for obstructive sleep apnea. 38 U.S.C. § 501; 38 C.F.R. § 3.156. 5. The criteria for service connection for GERD, as secondary to service-connected peritoneal adhesions, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for fibromyalgia, to include as secondary to service-connected splenectomy, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for entitlement to special monthly compensation for aid and attendance have been met. 38 U.S.C. §§ 1114(l), (s), 5103, 5103A; 38 C.F.R. §§ 3.350(b)(3), (i)(2), 3.352(a). 8. The criteria for a disability rating in excess of 50 percent for service-connected peritoneal adhesions have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7301. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1979 to October 1982. The Veteran and his spouse testified before the undersigned Veterans Law Judge in February 2019. A transcript of the hearing is of record. The Department of Veterans Affairs (VA) received the Veteran’s claims currently on appeal in July 2014 and February 2015. In a December 23, 2015 rating decision, the AOJ assigned a single 100 percent evaluation for the Veteran’s service-connected posttraumatic stress disorder (PTSD) and traumatic brain injury, assigned 50 percent evaluation for migraine headaches, and assigned special monthly compensation at the housebound rate. That rating decision amounted to full grants for these benefits sought on appeal, and these issues are not before the Board of Veterans’ Appeals (the Board). Petitions to Reopen Irrespective of the AOJ’s actions, the Board must decide whether the Veteran has submitted new and material evidence to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001). Generally, a claim that has been denied in an unappealed AOJ decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 501. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Petition to Reopen Claim of Entitlement to Service Connection for Erectile Dysfunction and Atrial Fibrillation Claims for service connection for erectile dysfunction and atrial fibrillation were initially denied in an October 2006 rating decision because the evidence of record at that time did not show current diagnoses for either disorder. The AOJ noted atrial fibrillation during active service related to the November 1981 motor vehicle accident (MVA); however, it denied the Veteran’s claim because his post-service treatment records did not show a diagnosis for atrial fibrillation. The AOJ also noted the Veteran’s complaints of sexual dysfunction; however, the record did not include a diagnosis for erectile dysfunction. The Veteran initiated and perfected his appeal of that rating decision; however, he opted to withdraw his appeal in November 2008. With the withdrawal of his appeal, the October 2006 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The record now includes diagnoses for both erectile dysfunction and atrial fibrillation. May 2016 VA treatment records note a history of erectile dysfunction and atrial fibrillation. These diagnoses are new to the record since the October 2006 rating decision, relate to unsubstantiated facts, and raise the reasonable possibility that the Veteran will prevail on his claim for entitlement to service connection for atrial fibrillation and erectile dysfunction. The Veteran’s claims for service connection for erectile dysfunction and atrial fibrillation are reopened. 2. Petition to Reopen Claim of Entitlement to Service Connection for Obstructive Sleep Apnea VA received the Veteran’s claim for service connection for obstructive sleep apnea in October 2008. In a January 2009 rating decision, the AOJ determined that the Veteran’s service treatment records did not show a diagnosis of or treatment for obstructive sleep apnea, and it was not shown to be etiologically related to the Veteran’s active service or his service-connected disabilities. The Veteran did not appeal that rating decision, and new and material evidence was not received within a year of the decision. Accordingly, the January 2009 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. VA received the Veteran’s petition to reopen his claim for service connection for sleep apnea in February 2015. In a December 2015 statement, the Veteran attributed sleep apnea to his service-connected splenectomy. The Veteran’s contention is new to the record, relates to an unsubstantiated fact, and raises the reasonable possibility that the Veteran will prevail on his claim for service connection for obstructive sleep apnea. The Veteran’s claim is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may be established for a disorder that is caused or aggravated by a service-connected disability. Id. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998); Allen, 7 Vet. App. at. 448. 3. Entitlement to Service Connection for GERD The Veteran contends that he developed GERD as a proximate result of his disabilities associated with a November 1981 MVA. The Board agrees that service connection on a secondary basis is warranted. A diagnosis for GERD is established the treatment records included in the Veteran’s claims file, and an October 2015 disability benefits questionnaire notes reflex and gastric disturbances associated with adhesions. While these symptoms of gastric reflex are included in the compensation the Veteran receives for his peritoneal adhesions, secondary service connection for GERD is not therefore foreclosed. The elements for secondary service connection and the elements for rating a service-connected disability are not the same. Compare Wallin, 11 Vet. App. at 511 (identifying the three elements of secondary service connection), with Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (identifying the five elements for rating a service-connected disability). Indeed, even if two disabilities have overlapping symptomatology, service connection for both disabilities is still permissible. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). Thus, even though the Veteran is already being compensated for GERD as part of the 50 percent evaluation for his service-connected adhesions, entitlement to service connection is antecedent to the rating assigned to determine the compensation to which a veteran is entitled. Any concerns with respect to duplicative evaluations for the same symptomatology is inapposite in the context of entitlement to service connection. Thus, regardless of whether GERD is contemplated in the Veteran’s rating for his service-connected adhesions, the record shows that the Veteran’s GERD is proximately due to adhesions, and entitlement to service connection for GERD, secondary to service-connected adhesions, is granted. See 38 C.F.R. § 3.310. 4. Entitlement to Service Connection for Fibromyalgia The Veteran is seeking service connection for fibromyalgia. In a July 2014 statement, the Veteran attributed fibromyalgia to treatment for atrial fibrillation. In a December 2015 statement, the Veteran contended that fibromyalgia was due to his service-connected splenectomy. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of fibromyalgia and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A current diagnosis is necessary to substantiate a claim for either direct service connection or secondary service connection. 38 C.F.R. §§ 3.303, 3.310. Seeing as competent evidence does not show that the Veteran has a current diagnosis for fibromyalgia, his claim of entitlement to service connection must be denied. While the Veteran believes he has a current diagnosis of fibromyalgia, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge regarding the interaction between multiple organ systems in the body as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The evidence of record does not show that the Veteran has the requisite medical knowledge or training. In light of the foregoing, the preponderance of the evidence weighs against the Veteran’s claim, the benefit of the doubt doctrine does not apply, and the Veteran’s claim of entitlement to service connection for fibromyalgia must be denied. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). Increased Ratings 5. Entitlement to Special Monthly Compensation for Aid and Attendance Special Monthly Compensation (SMC) is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. See Turco v. Brown, 9 Vet. App. 222 (1996). The Board concludes that the Veteran is need of regular aid and attendance. In her testimony in February 2019, the Veteran’s spouse reported that she attends to nearly all of the Veteran’s daily needs. She prepares all of his meals, washes all of his clothes, and aids in donning the mask for his CPAP machine. She reminds the Veteran to bathe, aids him in bathing, and absent her reminders and assistance, the Veteran would not maintain his personal hygiene. The Veteran’s spouse also accompanies him to nearly all of his medical appointments. When she cannot do so, he is reliant on her to provide directions to and from his appointments. In light of the foregoing, entitlement to SMC for aid and attendance is granted. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.352(a). 6. Entitlement to a Rating in Excess of 50 Percent for Adhesions Throughout the period on appeal, the Veteran’s service-connected adhesions have been evaluated as 50 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7301. This is the highest rating under Diagnostic Code 7301. Given that the Veteran is already in receipt of the maximum schedular rating for adhesions, there is no basis to award a higher rating under Diagnostic Code 7301. Moreover, as the Veteran has not argued the presence of an exceptional circumstance or unaccounted symptom, application of an extraschedular evaluation under 38 C.F.R. § 3.321 is not appropriate. REASONS FOR REMAND 1. Entitlement to Service Connection for Atrial Fibrillation, Obstructive Sleep Apnea, Type II Diabetes Mellitus, Erectile Dysfunction, and Enlarged Prostate The Board concludes that a remand is needed to adjudicate the Veteran’s outstanding claims of entitlement to service connection for atrial fibrillation, obstructive sleep apnea, Type II diabetes mellitus, erectile dysfunction, and an enlarged prostate. In their February 2019 hearing testimony, the Veteran and his spouse argued that the disorders for which the Veteran is seeking service connection are due to a chain of events that began with a November 1981 MVA. The Veteran similarly contended in a July 2014 statement accepted as his claim for service connection that all of the disorder for which he is seeking service connection are etiologically related—either directly or on a secondary basis—to the November 1981 MVA. As a result of that accident, the Veteran is service-connected for the following disabilities: PTSD (100 percent from July 23, 2014), adhesions (50 percent from July 23, 2014), a thoracolumbar spine disability (10 percent from January 26, 2006 and 40 percent from July 23, 2014), residuals of an in-service splenectomy (30 percent from November 1, 1982), a scar related to his service-connected splenectomy and adhesions (20 percent from July 23, 2014), radiculopathy of the left lower extremity (20 percent from July 23, 2014), radiculopathy of the right lower extremity (10 percent from July 23, 2014), and residuals from rib fractures (0 percent from November 1, 1982). According to the Veteran, he developed atrial fibrillation following the accident. The injuries sustained in the accident—particularly the injuries to his thoracolumbar spine—resulted in a chain of events culminating in diagnoses for the conditions for which the Veteran is seeking service connection. In an October 2008 statement, the Veteran contends that his injuries resulting from the November 1981 MVA precluded the exercise needed to maintain his weight. The Veteran contends that this weight gain caused sleep apnea and Type II diabetes mellitus. In turn, his Type II diabetes mellitus caused erectile dysfunction and his enlarged prostate. VA treatment records included in the Veteran’s claims file document diagnoses for atrial fibrillation, obstructive sleep apnea, Type II diabetes mellitus, erectile dysfunction, and an enlarged prostate. To date, the Veteran has not been afforded a VA examination regarding the nature and etiology of atrial fibrillation, sleep apnea, Type II diabetes mellitus, erectile dysfunction, and an enlarged prostate. Given the severity of the in-service MVA and the significant debilitating impact that his injuries therefrom have had on the Veteran, the Board concludes that he must be afforded VA examinations to determine whether atrial fibrillation, Type II diabetes mellitus, erectile dysfunction, an enlarged prostate, and sleep apnea are indeed due to the MVA or proximately due to or aggravated by his service-connected disabilities arising from that accident.   2. Entitlement to a Rating in Excess of 40 Percent for a Thoracolumbar Spine Disability The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded a VA examination to assess the severity of his service-connected thoracolumbar spine disability in January 2015. In his hearing testimony, the Veteran reported that a physician informed him that his back is worse than the 40 percent rating indicates. Specifically, the Veteran noted that he has a herniated disc that is reportedly disintegrating because it cannot go back into place. While the mere passage of time does not render an examination inadequate, Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007), his testimony indicates that thoracolumbar spine disability may be worse than it was at the time of his most recent examination. Accordingly, the Veteran should be afforded a new VA examination to assess the current severity of his service-connected thoracolumbar spine disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for atrial fibrillation. The examiner is asked to respond to the following: (a.) Is atrial fibrillation at least as likely as not related to service, including an episode of atrial fibrillation during active service or the November 1981 motor vehicle accident? (b.) Is atrial fibrillation at least as likely as not (i) proximately due to any of the Veteran’s service-connected disabilities, or (ii) underwent any incremental increase in disability, regardless of its permanence, due to any service-connected disability? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Provide rationales to support the opinions proffered. When providing a rational for an opinion, the examiner should consider the impact of the Veteran’s service-connected disabilities on his ability to maintain physical fitness, to include weight management. 2. Schedule the Veteran for a VA examination for Type II diabetes mellitus. The examiner is asked to respond to the following: (a.) Is Type II diabetes mellitus at least as likely as not related to service, including the November 1981 motor-vehicle accident? (b.) Is Type II diabetes mellitus at least as likely as not (i) proximately due to any of the Veteran’s service-connected disabilities, or (ii) underwent any incremental increase in disability, regardless of its permanence, due to any service-connected disability? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. (c.) Did Type II diabetes mellitus onset within one year of the Veteran’s separation from active service on October 31, 1982? Provide rationales to support the opinions proffered. When providing a rational for an opinion, the examiner should consider the impact of the Veteran’s service-connected disabilities on his ability to maintain physical fitness, to include weight management. 3. Schedule the Veteran for a VA examination for erectile dysfunction. The examiner is asked to respond to the following: (a.) Is erectile dysfunction at least as likely as not related to active service, including the November 1981 motor vehicle accident? (b.) Is erectile dysfunction at least as likely as not (i) proximately due to any of the Veteran’s service-connected disabilities, or (ii) underwent any incremental increase in disability, regardless of its permanence, due to any service-connected disability? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Provide rationales to support the opinions proffered. When providing a rational for an opinion, the examiner should consider the impact of the Veteran’s service-connected disabilities on his ability to maintain physical fitness, to include weight management. 4. Schedule the Veteran for a VA examination for an enlarged prostate. The examiner is asked to respond to the following: (a.) Is an enlarged prostate at least as likely as not related to service, including the November 1981 motor vehicle accident? (b.) Is an enlarged prostate at least as likely as not (i) proximately due to any of the Veteran’s service-connected disabilities, or (ii) underwent any incremental increase in disability, regardless of its permanence, due to any service-connected disability? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Provide rationales to support the opinions proffered. When providing a rational for an opinion, the examiner should consider the impact of the Veteran’s service-connected disabilities on his ability to maintain physical fitness, to include weight management. 5. Schedule the Veteran for a VA examination for sleep apnea. The examiner is asked to respond to the following: (a.) Is sleep apnea at least as likely as not related to service, including the November 1981 motor-vehicle accident? (b.) Is sleep apnea at least as likely as not (i) proximately due to any of the Veteran’s service-connected disabilities, or (ii) underwent any incremental increase in disability, regardless of its permanence, due to any service-connected disability? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Provide rationales to support the opinions proffered. When providing a rational for an opinion, the examiner should consider the impact of the Veteran’s service-connected disabilities on his ability to maintain physical fitness, to include weight management. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected thoracolumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.