Citation Nr: 21003555 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-16 125 DATE: January 21, 2021 ORDER Entitlement to service connection for erectile dysfunction, claimed as secondary to posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for a cervical spine disorder is denied. Entitlement to service connection for a right ankle disorder is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the evidence of record is at least evenly balanced to suggest that the Veteran’s erectile dysfunction is caused by his service connected PTSD with depressive disorder not otherwise specified. 2. The Veteran’s cervical spine disorder did not manifest during active military service, arthritis is not shown to have manifested within one year from the date of his separation from active service, and the weight of evidence is against a finding that the Veteran’s current cervical spine disorder is related to his active service. 3. The Veteran’s right ankle disorder did not manifest during active military service, arthritis is not shown to have manifested within one year from the date of his separation from active service, and the weight of evidence is against a finding that the Veteran’s current right ankle disorder is related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for erectile dysfunction as secondary to service connected PTSD have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from March 13, 1985 to March 12, 1988. The Veteran’s honorable service is proceeded by subsequent dishonorable service; therefore, that latter portion of service is ineligible for VA disability compensation. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran’s claims have a long procedural history. The claims were initially before the Board on April 29, 2015, December 15, 2017, and May 22, 2019. The May 22, 2019 Board decision denied the claims on appeal herein, and also for service connection for sleep apnea; however, these denials were all vacated by a Joint Motion for Remand (JMR) granted by the Court of Appeals for Veterans Claims (Court) on March 13, 2020. In order to comply with the JMR, the Board then remanded the claims to the Agency of Original Jurisdiction (AOJ) on August 6, 2020. Since the last remand, the Veteran’s claim for service connection for sleep apnea was granted as a noncompensable symptom of PTSD, namely insomnia, which is currently rated at 100 percent disabling. See Rating Decision (Nov. 16, 2020). As this claim for service connected was granted, the Board construes this as a full grant of the benefit sought on appeal. The claim is therefore no longer in appellate status. The propriety of the sleep apnea rating is not on appeal at this time; however, if the Veteran should disagree with this rating, he is free to file a Notice of Disagreement within one year of this rating decision. With regards to the other three claims that still remain (and which are reflected on the title page), the Veteran was most recently issued a Supplemental Statement of the Case on November 16, 2020. The Board accordingly reasserts jurisdiction of these claims. For the reasons to follow in respective parts below, the Board finds that the Veteran has been afforded substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Ultimately, the Board concludes that service connection is warranted for erectile dysfunction only, but neither for the cervical spine disorder nor the right ankle disorder. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability that is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2016). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additionally, for Veterans who have served 90 days or more of active service during a period of war or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board grants the claim for erectile dysfunction in full on a secondary basis to PTSD; therefore, the Board is not required to discuss alternative bases for service connection for that claim. Meanwhile, for the cervical spine and right ankle disorders, the Veteran limits his claims as ones for direct service connection (for the cervical spine, from a documented injury that is also the occurrence for service-connected jaw and chin injuries; for the right ankle, from a purported jump in Airborne school). The Veteran makes no claim that these are secondary to any other service-connected disorder, and there is no documented evidence of record by which the Board could infer such a theory of entitlement. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for erectile dysfunction, claimed as secondary to service connected PTSD is granted. It is neither in serious dispute that the Veteran has a diagnosis of erectile dysfunction, nor a diagnosis of service-connected PTSD. See, e.g.: VA Exam ( Apr. 23, 2018 ); Rating Decision (Codesheet) ( Nov. 16, 2020 ) (confirming a 100 percent rating for PTSD effective June 6, 2007). The only remaining question is whether there is an etiological relationship between the two. After the August 2020 remand, the AOJ procured addendum opinions as to the etiology of the Veteran’s erectile dysfunction. Respective opinions dated October 6, 2020 all opined that the Veteran’s erectile dysfunction was not at least 50 percent likely secondary to service-connected PTSD, nor aggravated beyond natural progression by PTSD, nor otherwise attributable to service. See VA Exams (Oct. 6, 2020) ( secondary, secondary aggravation, and otherwise ). In sum and substance, the above opinions all appear to be predicated upon the facts that because erectile dysfunction was not diagnosed until 2004, and that service connection for PTSD is only effective 2007, PTSD is therefore less than 50 percent likely attributable to service. The Board assigns this specific rationale no probative weight, because it relies on absence of evidence from the record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran’s reports of in-service injury and instead relied on the absence of evidence in a Veteran’s service treatment records to provide a negative opinion). Meanwhile, in opining that the Veteran’s erectile dysfunction is not secondary to PTSD, the examiner stated that “Prior to the diagnosis of PTSD, the Veteran had a long history of depression and alcohol abuse, both of which are well documented to cause ED.” See VA Exam (secondary), supra, at Question 4 et seq. The Veteran’s service-connected PTSD, as catalogued on his Codesheet, is specifically “PTSD with insomnia (claimed as sleep disorder), depressive disorder [not otherwise specified] and alcohol dependence.” See Rating Decision (Codesheet), supra. The Board interprets this portion of the opinion as specifically associating the Veteran’s erectile dysfunction with the depression that is diagnosed as underlying his service-connected PTSD, instead of with PTSD. Although this opinion contains only a brief rationale, the Board notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003). As such, the Board accordingly resolves doubt in the Veteran’s favor and grants the claim for service connection as secondary to his PTSD with depression not otherwise specified. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a cervical spine disorder is denied. By way of background, the Veteran’s cervical spine was examined in April 2018, at which time the examiner concluded that he had no diagnosis of any such disorder. See VA Exam ( Apr. 23, 2018 ), at Question No. 1. This exam memorializes the Veteran’s recounting of neck pain since 1987. See id. at Question No. 2. The United States Court of Appeals for the Federal Circuit held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) that “pain alone can serve as a functional impairment and therefore qualify as a disability.” As such, the Board concedes that the Veteran has (or, at least, has had during the period on appeal) a diagnosed cervical spine disorder. Meanwhile, the Veteran states that his neck injury is from the same motor vehicle accident upon which his service-connected residuals of jaw and chin injuries are based. See STR ( Nov. 5, 1986 ). Having identified an occurrence in service, the remaining question is whether there is an etiological relationship between the occurrence and the current disability. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following his discharge from service. In this case, the clinical evidence reveals a diagnosis of degenerative arthritis of the cervical spine in April 2015 and complaints of neck pain in 2008. In addition, an April 1996 treatment note reflects that the Veteran sought treatment for headaches following a head and neck injury six to eight months ago. Moreover, the Board has found that the Veteran’s reports of a continuity of symptomology to not be credible. As such, presumptive service connection is not warranted for arthritis. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The AOJ procured an addendum opinion as to the etiology of the Veteran’s cervical spine disorder, in accordance with previous remand directives. See Stegall, supra. The examiner identified the Veteran’s documented facial injuries from the record, see VA Exam (neck) ( Oct. 5, 2020 ), at Question No. 3 et seq., but ultimately determined that the Veteran’s neck pain is not at least 50 percent likely attributable to it or otherwise attributable to service. The Board now concludes that this examination opinion is adequate, see Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion.”), and affords substantial compliance with previous remand directives, see Stegall, supra. In support of this negative conclusion, the examiner reasoned that his “some decreased range of motion and mild degenerative changes” are inconsistent with such a traumatic injury. The Board identifies the record in the Veteran’s service treatment records that memorializes his facial injuries, and confirms that there is no similar notation for a neck injury at any time in service, let alone proximately to that injury. Furthermore, the Veteran was specifically asked whether he sought medical attention for his neck since discharge, but he stated that he did not recall. See VA Exam (Apr. 23, 2018), at Question No. 2a. Ultimately, there is no competent and credible evidence of record that demonstrates treatment for neck pain in service. To the extent that the Veteran may otherwise state that he injured his neck in service, the Board finds these statements as lacking credibility, because they are inconsistent with prior reports of medical history to treating physicians. Specifically, the Board notes that in April 1996, the Veteran sought medical attention for “moderately severe headaches following head/neck injury 6-8 months ago.” See Medical Treatment Record ( Apr. 2, 1996 ). This is the first documented complaint of the Veteran’s neck pain that the Board is able to identify as documented—albeit more than seven years postdating discharge. Moreover, the Veteran reported a neck injury that occurred six to eight months prior to the April 1996 treatment. The Board is also in receipt of a statement from the Veteran’s girlfriend at the time of his 1986 motor vehicle accident. See Lay Statement by B.D. ( Oct. 5, 2003 ). She recounted that the Veteran’s chin was deformed, he was missing two front teeth, and was prone to severe headaches, dizziness, pain to his mouth, chin, and jaw, and pain while eating; however, B.D.’s statement is completely silent as to neck pain of any kind. Finally, the Board identifies another treatment record in which he claims that the Veteran injured his neck in service, but had only had pain for three years. See Medical Treatment Record ( May 23, 2008 ). The Board places greater weight of probative value on the history the Veteran presented to medical professionals for treatment purposes (i.e., during active service and years thereafter) than it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In addition, the Veteran’s history of prior inconsistent statements weighs against his credibility. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a veteran). Insofar as the Veteran asserts that his current neck disability must be related to his in-service injury, he has not been shown to have the medical expertise to provide a competent opinion as to the medical origin of his current neck disability. The Board acknowledges the Veteran’s submission of the above documentary evidence, but after careful consideration by the Board, the evidence of record suggests that the Veteran’s neck disorder is more likely attributable to a post-service occurrence no earlier than 1995. In sum, the preponderance of evidence is against a finding that the Veteran’s cervical spine disability had onset in service, manifested to a compensable degree within one year of discharge, or is otherwise related to his in-service injury. Therefore, the benefit of the doubt rule does not apply and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Entitlement to service connection for a right ankle disorder is denied. By way of background, the Veteran’s right ankle was examined in April 2018, at which time the examiner concluded that he had no diagnosis of any such disorder. See VA Exam ( Apr. 23, 2018 ), at Question No. 1. This exam memorializes the Veteran’s recounting of ankle pain since 1986. See id. at Question No. 2. The United States Court of Appeals for the Federal Circuit held in Saunders v. Wilkie, supra that “pain alone can serve as a functional impairment and therefore qualify as a disability.” As such, the Board concedes that the Veteran has (or, at least, has had during the period on appeal) a diagnosed right ankle disorder. As for an in-service occurrence, the JMR instructs the Board to consider the Veteran’s claim that his right ankle injury is due to an injury from a parachute jump in Airborne school. See JMR (Mar. 13, 2020), at Page 5. The Board has thoroughly reviewed the Veteran’s complete Military Personnel Records, as received by the Board on May 1, 2001, April 23, 2003, and August 6, 2004. The Veteran’s military personnel records do not support the Veteran’s contention that he ever participated in Airborne school, and his DD Form 214 does not evince a scintilla of evidence that he would have engaged in parachute jumps in carrying out his military occupational specialty. Furthermore, the Board has fully and sympathetically reviewed his service treatment records, and these are also completely devoid of any evidence of a right ankle injury. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following his discharge from service. In this case, the clinical evidence reveals a diagnosis of degenerative or traumatic arthritis in 2018. Moreover, the Veteran has not alleged a continuity of symptomology. As detailed below, the clinical evidence documents complaints of a right ankle injury that occurred in approximately 2006. As such, presumptive service connection is not warranted for arthritis. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the lack of documentary evidence that could otherwise substantiate the Veteran’s claim of an ankle injury in service, the AOJ procured an addendum opinion as to the etiology of the Veteran’s ankle disorder, in accordance with previous remand directives. See Stegall, supra. The examiner appears to have fully considered the Veteran’s contentions and the available evidence of record as recounted above, see VA Exam (ankle) ( Oct. 5, 2020 ), at Question No. 3 et seq., but they ultimately determined that the Veteran’s ankle pain is not at least 50 percent likely attributable to service. The Board now concludes that this examination opinion is adequate, see Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra, see Stegall, supra. The Board has reviewed the Veteran’s claims file. The earliest documented evidence of right ankle pain is dated May 23, 2008, in which the Veteran states that ankle pain originated two years prior. See Medical Treatment Record ( May 23, 2008 ), supra. Meanwhile, an April 2018 examiner considered the Veteran’s statements that he was seen ten times for his right ankle, but “I asked him if prior to his accident [on] June 4, 2011, if he had seen anyone for his ankle and he replied that he didn’t remember.” See VA Exam ( Apr. 23, 2018 ), at Question No. 2a. The Board places greater weight of probative value on the history the Veteran presented to medical professionals for treatment purposes (i.e., during active service and years thereafter) than it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, supra; see also Cartwright v. Derwinski, supra. In addition, the Veteran’s history of prior inconsistent statements weighs against his credibility. See Caluza v. Brown, supra. Insofar as the Veteran asserts that his current right ankle disability must be related to his in-service injury, he has not been shown to have the medical expertise to provide a competent opinion as to the medical origin of his current right ankle disability. The Board acknowledges the Veteran’s submission of the above documentary evidence, but after careful consideration by the Board, the evidence of record suggests that the Veteran’s right ankle disorder is more likely attributable to a post-service occurrence no earlier than 2006—not during Airborne school (for which there is no evidence to support his enrollment therein) and not otherwise during service. In sum, the preponderance of evidence is against a finding that the Veteran’s right ankle disability had onset in service, manifested to a compensable degree within one year of discharge, or is otherwise related to any in-service injury. Therefore, the benefit of the doubt rule does not apply and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.