Citation Nr: 21064018 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-01 067 DATE: October 18, 2021 ORDER Entitlement to service connection for a genitourinary disability, to include residuals other than erectile dysfunction from an in-service venereal disease is denied. Entitlement to service connection for a gastroesophageal disorder is denied. Entitlement to service connection for septoplasty is denied. Entitlement to service connection for chronic otitis is denied. FINDINGS OF FACT 1. A genitourinary disability was not shown in service or many years thereafter; and the preponderance of the evidence is against finding that benign prostate hypertrophy is etiologically related to active service. 2. A gastroesophageal disorder was not shown in service or many years thereafter; and the preponderance of the evidence is against finding that gastritis is etiologically related to active service. 3. The preponderance of the evidence is against finding that a nasal disorder had its onset in service or is otherwise etiologically related to an in-service injury or disease; and there is not clear and unmistakable evidence that a preexisting nasal disorder was aggravated beyond natural progress by service. 4. The preponderance of the evidence is against finding that an ear disorder had its onset in service or is otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a genitourinary disability, to include residuals other than erectile dysfunction from an in-service venereal disease are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a gastroesophageal disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for septoplasty are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 4. The criteria for service connection for chronic otitis are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from November 1972 to November 1975. The appeal originates from an April 2014 decision of a Department of Veterans Affairs (VA) Regional Office. The Veteran appeared for a hearing before the undersigned in March 2017. The matter was remanded in April 2017, July 2019, and April 2021 to obtain service treatment records, VA treatment records, and VA examinations for the genitourinary disability and gastroesophageal disorder. VA made a formal finding of unavailability of the service treatment records and notified the Veteran in July 2021. Updated VA treatment records as well as examinations with opinions for a genitourinary disability and a gastroesophageal disorder have been obtained. There has been substantial compliance with the Remand directives. 1. Entitlement to service connection for a genitourinary disability other than erectile dysfunction. 2. Entitlement to service connection for a gastroesophageal disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran contends that he has a genitourinary disability manifested by urinary problems due to an in-service venereal disease. See March 2017 Hearing Transcript. [Service connection for erectile dysfunction has already been established.] He also asserts that he has gastroesophageal reflux disease (GERD) that manifested in service through vomiting and other stomach symptoms. The May 2018 male reproductive system and May 2020 esophageal examinations reflect diagnoses of benign prostate hypertrophy (BPH) and gastritis respectively. While an October 2017 esophageal examination had diagnosed GERD based on the Veteran's lay reporting, it was noted that an endoscopy performed in February 2020 did not reflect GERD but rather gastritis. See August 2021 VA Examination. Element (1) of Shedden is met. The Veteran's service treatment records are unavailable except for his enlistment examination. See December 1997 STR. However, VA has implicitly recognized that he had an in-service venereal disease (by awarding service connection for erectile dysfunction as a residual), and it is plausible that he had in-service stomach symptoms such as indigestion. The preceding is sufficient to meet Shedden element (2). Regarding Shedden element (3) or a nexus, the May 2018 urinary tract/male reproductive system and August 2021 esophageal examiners opined that the Veteran's disorders are less likely as not related to service. With respect to a genitourinary disability, the examiner explained that the Veteran suffered a venereal (gonococcal) disease with urethritis in service that resolved without sequelae, residuals, chronic symptoms, or complications (the examiner determined that erectile dysfunction was actually a side effect of prescribed antidepressants rather than a residual of the in-service venereal disease.) Although he testified to having urinary problems such as pain or burning, the examiner noted that he denied symptoms of urethritis at the examination, such as urethral secretions, and that there was no evidence of an active or persistent urethritis condition. As to the diagnosis of BPH, the examiner found that the disorder had no etiological relationship with the Veteran's history of venereal (gonococcal) infection in service. The examiner determined that medical literature does not support an etiological nexus between gonococcal urethritis and BPH. Rather, BPH was noted to be due to aging and family factors and developed many years after service. Turning to gastritis, the August 2021 examiner, drawing on the prior examination with opinion rendered in May 2020, acknowledged the reported lay history of longstanding antacid and proton-pump inhibitor use to treat gastric symptoms. However, the examiner stated that there were no service treatment records reflecting treatment or diagnosis of a gastric disorder. The examiner determined that a gastric disorder had no association with treatment of venereal disease. The examiner explained that the Veteran had a significant history of alcohol abuse (with hospitalizations in 1997 and 1998) and continuing use which was likely the cause of his disorder. Based on the examination results, lay reporting, and medical principles, the examiner was unable to link gastritis to service. The Board notes that the April 2021 Remand appears to question the May 2020 examination (incorrectly referring to it as a "May 2019" examination) because the examiner referenced the absence of supportive service treatment records before a formal finding of unavailability was made. However, the absence of these records is a permissible factor for consideration and was considered with others (such as post-service treatment records and medical principles) in rendering the opinion. Indeed, as the Veteran's report of continuous gastric problems since service has not been found to be credible, which is discussed below, the examiner's finding is found to be persuasive. Consideration is given to the Veteran's testimony that he has had urinary and stomach problems since service. This reported history is not credible. VA treatment records show that he was evaluated at primary care in November 1999 and did not report urinary or stomach symptoms. He was seen in June 2000 and appeared to report a history of heartburn of unspecified duration. Treatment records from 2001 and 2002 do not reflect any complaints of stomach or urinary symptoms. In January 2003, the Veteran denied having dysphagia, abdominal pain, nausea, vomiting, or any other gastrointestinal symptoms, as well as dysuria, frequency, hesitancy, discharge, or any other genitourinary symptoms. The Board affords greater weight to contemporaneous evidence as it is more likely an accurate reflecting of his symptom history than subsequent contradictory statements. Accordingly, the claims of service connection for a genitourinary disability, to include residuals other than erectile dysfunction from an in-service venereal disease and a gastroesophageal disorder must be denied. 3. Entitlement to service connection for septoplasty. 4. Entitlement to service connection for chronic otitis. A veteran is presumed to be in sound condition when entering service, except for conditions "noted" on entrance or where clear and unmistakable evidence demonstrates that an injury or disease preexisted service, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC3-2003 (2003). Only such conditions as are recorded in entrance examination reports are considered as "noted" for purposes of the presumption of soundness. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). The Veteran contends that during service he fell and injured his nose, resulting in a deviated septum and difficulty breathing. See March 2017 Hearing Transcript. He also asserts that he has had recurrent ear infections and buildup and that he also had ear problems in service, such as pain and discomfort. VA treatment records do reflect that he underwent septoplasty in May 2006 to repair a right-deviated nasal septum. They also show an assessment of otitis in May 2012 with later notations of it as an active problem. Element (1) of Shedden is met. With respect to elements (2) and (3) of Shedden, i.e., an in-service injury or disease, there are no service treatment records available to review with respect to nasal or ear problems. The sole evidence in this regard is the aforementioned history offered by the Veteran. This reporting is not credible. As to nasal problems, the Veteran had a consultation in March 2006 shortly prior to septoplasty. At that time, he reported "[t]rauma to nose as an adolescent" with no reference to any in-service injury. While he did not report this injury at enlistment and a nasal disorder was not noted on the entrance examination, this does suggest that his deviated septum predates service and that he did not have an in-service injury as reported at the hearing. Regarding the ear, VA treatment records show that the Veteran was first seen for otitis at primary care in November 2004. He offered no longstanding history of ear problems, including any in-service symptoms. Instead, he reported a single recent episode of dizziness which resolved spontaneously within minutes. The physician indicated that the episode was probably due to otitis. The Board finds the Veteran's reporting of his nasal and ear problems in 2006 and 2004 more credible than that offered for this appeal, as the former was offered for the purpose of treatment. There is no objective evidence or credible lay evidence of an in-service injury or disease relating to chronic otitis or septoplasty (or aggravation of a potentially preexisting disability). As such, service connection cannot be established and the claims must be denied. The Board notes that the Veteran was not afforded a VA examination nor was an opinion obtained for his septoplasty or chronic otitis; however, an examination is not warranted as the duty to assist has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Although McLendon sets a low bar, that bar has not been met here as there is no indication of a link between his current conditions and active service. The only evidence of a possible connection between his disabilities and service are his own broad and conclusory statements that the conditions are related to service, and such statements are not sufficient to trigger VA's obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.