Citation Nr: 21003005 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-28 469 DATE: January 19, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a psychiatric disability, to include depression, generalized anxiety disorder, and posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral shoulder and arm osteoarthritis is remanded. Entitlement to service connection for right elbow osteoarthritis is remanded. Entitlement to service connection for right wrist osteoarthritis is remanded. Entitlement to service connection for bilateral hip osteoarthritis is remanded. Entitlement to service connection for bilateral knee osteoarthritis is remanded. Entitlement to service connection for bilateral ankle osteoarthritis is remanded. Entitlement to service connection for bilateral foot osteoarthritis is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a prostate disability, claimed as benign prostate hyperplasia is remanded. Entitlement to a rating higher than 0 percent for left leg length difference is remanded. Entitlement to a total disability rating due to individual unemployability by reason of service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a cervical spine disability began during active service or is otherwise related to any event, injury, or disease during service. 2. The preponderance of the evidence is against finding that the Veteran has a psychiatric disability that began during active service or is otherwise related to any event, injury, or disease during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a psychiatric disability, to include depression, generalized anxiety disorder, and PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1956 to July 1958. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This case was previously remanded for further development. In light of the treatment records that have been obtained and associated with the record and the further adjudicatory actions taken by the Agency of Original Jurisdiction, the Board finds that there has been substantial compliance with the prior remand directives concerning the issues of entitlement to service connection for a cervical spine disability and a psychiatric disability. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). During the course of the appeal, in a January 2020 rating decision, the Agency of Original Jurisdiction (AOJ) established service connection for bilateral hearing loss and tinnitus, representing a full grant of those benefits sought. Therefore, those claims are no longer on appeal. Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a cervical spine disability A service medical record from June 1958 shows that the Veteran experienced a backache between the shoulder blades that was due to myositis. The service separation examination report shows that the Veteran had a normal neck and spine examination. In a June 2014 statement, Dr. M.-Q. diagnosed chronic cervical spine pain. The private examiner opined that the Veteran’s musculoskeletal disorder was more probable than not secondary to service. On VA examination in February 2015, the examiner specified that the service medical records and VA treatment records had been reviewed. The examiner diagnosed cervical spine degenerative joint disease. The examiner noted that a single service medical record showed that the Veteran experienced pain in the back between the shoulder blades, but on current examination, there were no complaints of pain between the shoulders. There was currently pain in the neck with limited extension and neck rotation. The examiner stated that the present findings were consistent with neck degenerative joint disease which was at least as likely as not due to the natural process of aging. The examiner opined that the current neck disability was less likely as not due to the single notation of myositis in the service treatment records in June 1958. There was no chronic myositis between shoulder blades on examination. In reviewing the evidence of record, it is clear that the Veteran has a current diagnosis of a cervical spine disability. However, the Board finds that the preponderance of the evidence is against finding that the present cervical spine disability is related to the Veteran’s active duty. In reviewing the medical opinions of record, one affirmatively supports the Veteran’s claim, the June 2014 statement from Dr. M.-Q.. However, Dr. M.-Q. merely gave a bare statement that that the Veteran’s musculoskeletal disorder was more probable secondary to service. No further rationale was stated. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). As Dr. M.-Q. provided no rationale for the opinion, the Board finds that the June 2014 statement from Dr. M-Q. is of less probative value and outweighed by the other evidence of record. Dr. M.-Q. also did not state that service and VA records were reviewed, lessening the probative value of the opinion. The Board finds the February 2015 VA examiner’s opinion to the most probative evidence of record. The examiner acknowledged the Veteran’s assertions. The examiner supported the opinion with rationale. An alternative etiology of the cervical spine disorder was provided. The Board finds the February 2015 VA opinion to be the most persuasive evidence of record. The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the examiner reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board has considered the Veteran’s lay statements but assigned his opinion regarding the etiology of his cervical spine disability less probative weight. The Board finds that such an opinion requires knowledge of the multiple potential causes of the disease, and the inherently medical issue of comparing the in-service and post-service possible etiologies, such as age, and determining which is more likely to have brought about the post-service diagnosis. Those are not matters which are capable of lay observation. Accordingly, the Veteran’s lay statements are not competent evidence of an etiological relationship between a cervical spine disability and service. The Board finds that the preponderance of the evidence is against a finding that a current cervical spine disability is related to or aggravated by service. Consequently, the claim for service connection for a cervical spine disability must be denied on a direct basis. The Board notes that service connection may also be established on a presumptive basis for certain recognized chronic diseases, such as arthritis. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). However, the evidence does not show, and the Veteran has not claimed, that cervical spine arthritis manifested to a compensable degree within the first year after the Veteran separated from active duty. Therefore, service connection cannot be established presumptively. Accordingly, as the probative medical evidence is against a finding that the current cervical spine disability is etiologically related to any aspect of active service, service connection is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107. 2. Entitlement to service connection for a psychiatric disability, to include depression, generalized anxiety disorder, and posttraumatic stress disorder (PTSD) The service medical records contain no signs, symptoms, or treatment of a psychiatric disorder. The service separation examination report found that the Veteran was psychiatrically normal. Post-service VA treatment records show no treatment for a psychiatric disorder other than alcohol use disorder. In a June 2014 statement, Dr. M.-Q. diagnosed generalized anxiety disorder, major depression, and posttraumatic stress disorder. The private examiner opined that the psychiatric disorders were more probable than not secondary to service. On VA examination in February 2015, the examiner specified that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD, but the Veteran had a diagnosis of alcohol use disorder. The examiner noted that the Veteran had three PTSD screening tests administered at VA Medical Center San Juan in February 2007, January 2008, and July 2012, and all three screenings were negative. The examiner further stated that the July 2014 letter from the private examiner could not be considered as evidence of a mental disorder. The VA examiner stated that Dr. M. was an internal medicine doctor and not qualified to diagnose or treat mental disorders. The VA examiner stated that Dr. M. always gave Veterans the same diagnoses of generalized anxiety disorder, major depressive disorder, and PTSD, without rationales for the diagnoses. The VA examiner concluded that the Veteran’s claimed condition was less likely than not incurred in or caused by service. The VA examiner noted that he was a clinical psychologist. In reviewing the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran has a psychiatric disorder that is related to his active duty. In reviewing the medical opinions of record, the Board has carefully considered the June 2014 letter from Dr. M.-Q.. However, Dr. M.-Q. is not a psychologist or a psychiatrist. The evidence of record indicates that doctor practices internal medicine. Therefore, although Dr. M.-Q. is a doctor, the opinion provided is less persuasive than that of the clinical psychologist at the February 2015 VA examination, as this claim involves mental disorders. Additionally, Dr. M.-Q. did not give any rationale to support the etiology opinion. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). As Dr. M.-Q. is not a psychiatrist or a psychologist and provided no rationale for the diagnoses or etiology opinion. Therefore, the Board finds that the June 2014 statement from Dr. M-Q. is of less probative value and outweighed by the other evidence of record. The Board finds the February 2015 VA examiner’s report and opinion to the most probative evidence of record. The VA examiner found that the Veteran’s symptoms did not meet the criteria for a diagnosis of any psychiatric disorder other than alcohol use disorder. The examiner acknowledged the Veteran’s assertions. The examiner supported the opinion with rationale. Importantly, the VA examiner discussed the June 2014 letter from Dr. M.-Q.. The VA examiner was a psychologist and had the training, expertise, and competence to make psychiatric diagnoses and opinions. The examiner also noted that psychiatric testing had been administered. Therefore, the Board finds the February 2015 VA opinion to be the most persuasive evidence of record. The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the examiner reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board has considered the Veteran’s lay statements but assigned the Veteran’s opinion regarding the presence of a psychiatric disability less probative weight. Although the Veteran can competently relate the presence of symptoms observable through his senses, the Board finds that the Veteran’s statements are outweighed by the report of the February 2015 VA examiner. The VA examiner was a clinical psychologist who had the education and training necessary to competently identify the presence of a psychiatric disorder. The Veteran has not been shown to have such knowledge. Finally, to the extent that the Veteran has been diagnosed with alcohol use disorder during the appeal period, direct service connection for disability resulting from a claimant’s own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. VAOPGCPREC 7-99; VAOPGCPREC 2-98. Compensation cannot be awarded pursuant to 38 U.S.C. § 1110 and 38 U.S.C. § 105(a) either for primary alcohol abuse disabilities or for secondary disabilities that result from primary alcohol abuse. Primary alcohol abuse disability means an alcohol abuse disability arising from voluntary and willful drinking to excess. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). VA regulations state that no compensation shall be paid if a disability is the result of alcohol abuse. 38 C.F.R. § 3.301. For the purpose of the regulation, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. §§ 3.1(m), 3.301(d); 38 U.S.C. § 105; 38 C.F.R.. Therefore, service connection is precluded as a matter of law for a disability etiologically related to alcohol use disorder. 38 U.S.C. § 1110; 38 C.F.R. § 3.301(d). Accordingly, as the preponderance of the evidence is against a finding that the Veteran has a psychiatric disability that is etiologically related to any aspect of active service, the Board finds that service connection is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, bilateral shoulder and arm osteoarthritis, right elbow osteoarthritis, right wrist osteoarthritis, bilateral hip osteoarthritis, bilateral knee osteoarthritis, bilateral ankle osteoarthritis, bilateral foot osteoarthritis, obstructive sleep apnea, and a prostate disability, claimed as benign prostate hyperplasia; and entitlement to a rating higher than 0 percent for left leg length difference are remanded. Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim. The Board’s July 2016 remand requested that the Veteran be scheduled for VA examinations to determine the nature and etiology of claimed hypertension, bilateral shoulder and arm osteoarthritis, right elbow osteoarthritis, right wrist osteoarthritis, bilateral hip osteoarthritis, bilateral knee osteoarthritis, bilateral ankle osteoarthritis, bilateral foot osteoarthritis, obstructive sleep apnea, and a prostate disability, and the current severity of the service-connected left leg difference. The requested VA examinations were not performed. A January 2020 notation in the record states that “DBQ HYPERTENSION – cancelled by MAS (VETERAN FAILED TO REPORT) DBQ MALE REPRO SYSTEM – cancelled by MAS (VETERAN FAILED TO REPORT) DBQ ANKLE CONDITIONS – cancelled by MAS (VETERAN FAILED TO REPORT) DBQ ELBOW AND FOREARM – cancelled by MAS (VETERAN FAILED TO REPORT) DBQ FOOT MISC – cancelled by MAS (VETERAN FAILED TO REPORT) DBQ HIP AND THIGH – cancelled by MAS (VETERAN FAILED TO REPORT) DBQ KNEE AND LOWER LEG – cancelled by MAS (VETERAN FAILED TO REPORT) DBQ SHOULDER AND ARM – cancelled by MAS (VETERAN FAILED TO REPORT) DBQ WRIST CONDITIONS – cancelled by MAS (VETERAN FAILED TO REPORT) DBQ SLEEP APNEA – cancelled by MAS (VETERAN FAILED TO REPORT).” The January 2020 supplemental statement of the case indicates that if a claimant does not respond to the attempts to schedule the examination in the RSVP program, the examination request will be canceled. The Board notes that the RSVP scheduling program allows veterans to schedule their own examinations in an effort to ensure attendance at the examination date. M21-1, Part IV, Subpart ii, Chapter 3, Section B). To ensure due process of law, the Board finds that remand is necessary. In this case, the AOJ sent the Veteran a letter on December 18, 2019, stating “We asked the VA medical facility nearest you to schedule you for an examination in connection with your claim. They will notify you of the date, time, and place of the examination.” However, there is no documentary record associated with the claims file showing that the Veteran was sent a scheduling letter notifying him to schedule his VA examinations through the VHA RSVP program. DMA-15003 Revised November 16, 2015 (Fact Sheet - VHA RSVP Scheduling) (VHA attempts to reach the veteran by telephone with at least 2 attempts and a scheduling letter must be issued within two work days after the attempted telephone contact and the Veteran has 10 calendar days to respond before VHA cancels the examination request). The record also does not show that two attempts were made to reach the Veteran by phone. Because any VHA attempts to reach the Veteran by phone and by letter are not documented in the claims file, the Board cannot determine whether the Veteran had sufficient notice and opportunity to schedule the examination dates in accordance with the RSVP guidelines. The examinations must be scheduled, and the Veteran notified of the date, time, and location of the scheduled examinations, to provide the Veteran the opportunity to attend. The Veteran is hereby informed that it is his responsibility to report for any scheduled examinations and that failure to attend a scheduled examination could result in the denial of the claims. 38 C.F.R. § 3.655. The AOJ’s compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to a total disability rating due to individual unemployability by reason of service-connected disabilities (TDIU) is remanded. Because a decision on the other remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of a service-connected left leg length difference. The examiner must review the claims file and should note that review in the report. A complete rationale should be provided for any opinions expressed and conclusions reached. After examining the Veteran and reviewing the claims file, the examiner should describe in detail the signs and symptoms relevant to the left leg length difference. The examiner should measure the left leg length difference and provide the measurements in inches and centimeters. The examiner should identify any functional impairment associated with the Veteran’s service-connected left leg length difference, including what kind of employment limitations that might result, if any. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 4. Schedule the Veteran for a VA examination to determine the etiology of hypertension. The examiner must review the claims file and should note that review in the report. After examining the Veteran and reviewing his claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hypertension had its onset during active service or within one year following separation from service, or is otherwise related to any incident of service. In doing so, attention is called to (i) the service medical records showing no symptoms, treatment, or diagnoses referable to hypertension and a blood pressure reading of 120/68 at separation from service, (ii) a December 1991 VA examination report noting the Veteran’s report of taking antihypertensive medication, (iii) Dr. M.-Q.’s July 2014 opinion that the Veteran’s cardiovascular disorder was more probable than not secondary to service, and (iv) a July 2016 Informal Hearing Presentation argument that NSAIDs increase blood pressure with citation to an internet Medscape article. A complete rationale should be provided for any opinions expressed and conclusions reached. The examiner should reconcile the opinion with that of Dr. M.-Q. 5. Schedule the Veteran for a VA examination to determine the current nature and etiology of any currently diagnosed bilateral shoulder or arm, right elbow, right wrist, bilateral hip, bilateral knee, bilateral ankle, and bilateral foot disabilities. The examiner must review the claims file and should note that review in the report. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail. A complete rationale should be provided for any opinions expressed and conclusions reached. After reviewing the claims file and examining the Veteran, the examiner is asked to: (a) Diagnose all bilateral shoulder or arm, right elbow, right wrist, bilateral hip, bilateral knee, bilateral ankle, and bilateral foot disabilities, to include arthritis. (b) For each bilateral shoulder or arm, right elbow, right wrist, bilateral hip, bilateral knee, bilateral ankle, and bilateral foot disability found, opine whether it is at least as likely as not (50 percent or greater probability) that each disability had its onset during service or is otherwise related to service or any incident of service. In so doing, consider all evidence of record, and specifically comment on the July 2014 statement authored by Dr. M.-Q. in which he essentially stated that the Veteran’s shoulder and arm, right elbow, right wrist, hips, knees, ankle, and feet disorders were more probable than not secondary to service. (c) For each bilateral hip, knee, ankle, and foot disability, provide an opinion as to whether it is at least as likely as not proximately due to, or aggravated by, an altered gait caused by a service-connected lumbar spine disability, left tibia fracture residuals, and left leg length discrepancy. In so doing, please comment on the July 2016 informal hearing presentation argument regarding altered gait, with cited medical treatise information. 6. Schedule the Veteran for a VA examination to determine the current nature and etiology of any diagnosed obstructive sleep apnea. The examiner must review the claims file and should note that review in the report. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail. A complete rationale should be provided for any opinions expressed and conclusions reached. After reviewing the claims file and examining the Veteran, the examiner is asked to: (a) State whether a diagnosis of obstructive sleep is warranted. Consider a July 2014 report by Dr. M. Q. diagnosing obstructive sleep apnea, but indicating that a sleep study is advised only to “rule-out” sleep apnea. The examiner should reconcile the opinion with that July 2014 report and should state whether sleep apnea can be diagnosed in the absence of a sleep study. (b) For any currently shown obstructive sleep apnea, opine whether it is at least as likely as not (50 percent or greater probability) that it had its onset during service or is otherwise related to service. In so doing, consider all evidence of record, and specifically comment on the July 2014 statement authored by Dr. M.-Q. essentially opining that sleep apnea was more probable than not secondary to service. Reconcile the opinion with that of Dr. M.-Q. 7. Schedule the Veteran for a VA examination to determine the current nature and etiology of any prostate disability. The examiner must review the claims file and should note that review in the report. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail. A complete rationale should be provided for any opinions expressed and conclusions reached. After reviewing the claims file and examining the Veteran, the examiner is asked to: (a) State whether any prostate disability is currently found. Consider a July 2014 report by Dr. M.-Q. diagnosing a prostate disability and reconcile the opinion with that July 2014 report. (b) For any prostate disability, opine whether it is at least as likely as not (50 percent or greater probability) that it had its onset during service or is otherwise related to service. In so doing, consider all evidence of record, and specifically comment on the July 2014 statement authored by Dr. M.-Q. essentially opining that a prostate disability was more probable than not secondary to service. Reconcile the opinion with the statement of Dr. M.-Q. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.