Citation Nr: 21065235 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-25 886 DATE: October 25, 2021 ORDER Entitlement to service connection for bilateral pes planus is granted. Entitlement to service connection for gout in feet is granted. REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for cervical spine degenerative arthritis, cervical degenerative disc disease, and cervical myelopathy is remanded. Entitlement to lumbar spine degenerative arthritis and lumbar spine degenerative disc disease is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran currently has bilateral pes planus, and competent medical opinion evidence indicates that the Veteran's pes planus is due to post-service weight gain/obesity that is as likely as not attributable to his service-connected posttraumatic stress disorder (PTSD). 2. The Veteran currently has gout in the feet, and competent medical opinion evidence indicates that the Veteran's gout is aggravated by his alcoholism which is as likely as not attributable to his service-connected posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral pes planus, as secondary to service-connected PTSD, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for gout in the feet, as secondary to service-connected PTSD, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1959 to January 1964. This matter comes to the Board of Veterans' Appeals (Board) from a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were remanded in May 2020, August 2020, and April 2021 for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection also may be established, on a secondary basis, by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A medical examination is inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is competent to report his symptoms, as a layman; however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral pes planus The Veteran asserts that his bilateral pes planus originated due to a lack of artic footwear while he was stationed in Greenland, or that it is due to post-service weight gain resulting from inability to exercise due to the severity of his service-connected posttraumatic stress disorder (PTSD). At the outset, the Board finds that the medical evidence of record demonstrates that the Veteran has a current diagnosis of bilateral pes planus, as confirmed in the August 2021 VA examination. Therefore, the first element of service connection has been met. The Board notes that there are numerous opinions in the record from VA examiners. In April 2018, a VA examiner opined that the Veteran's pes planus was less likely than not caused or aggravated by his active-duty service, explaining that the disability was not noted during service. In April 2020, the same VA examiner from April 2018 opined that the Veteran's pes planus was less likely than not caused or aggravated by his active-duty service, noting that the Veteran's symptoms did not become evident until a few years before the opinion was obtained. The examiner also noted that a cold injury would not cause flat feet. A November 2020 examiner similarly opined that the Veteran's pes planus was less likely than not caused or aggravated by his active-duty service, noting the belief that the Veteran's pes planus was consistent with natural aging. Additionally, the examiner noted that the Veteran's pes planus was not caused by the Veteran's service-connected ear and hearing loss disabilities, as these have no impact in disabilities of the feet. The examiner added that the Veteran's obesity may contribute to the Veteran's pes planus, though it is likely that pes planus would have developed without regard to weight. The examiner also opined that the Veteran's PTSD is not the cause for the Veteran's obesity, as it does not preclude all form of exercise. A December 2020 VA examiner opined that the Veteran's pes planus was less likely than not caused or aggravated by his active-duty service, as it was not noted during service and a cold injury would not likely cause the pes planus disability. However, the examiner concluded that the Veteran's bilateral pes planus is at least as likely as not related to the Veteran's obesity, because while it does not cause the pes planus, medical literature shows that it contributes to it. An August 2021 VA examiner explained that the Veteran's obesity is multi-factorial, noting that the risk factors are genetics, birth weight, comorbidities, medication adverse effects, lifestyle including diet and exercise and alcohol consumption. The examiner acknowledged that lifestyle can be influenced by his service-connected psychiatric disorder which can lead to decreased motivation to exercise and also poor lifestyle choices; and that poor lifestyle choices also have many influences, including culture or habits developed during developmental years and psychological factors. However, the examiner stated that there was no way to quantify the influence these factors have had on the development of obesity with this Veteran. Upon review of the evidence of record, the Board finds that while the medical evidence of record has determined that the Veteran's pes planus was not directly due to, or caused by, his active-duty service, there is an apparent consensus that the Veteran's bilateral pes planus is impacted by his obesity, so the remaining question is whether the Veteran's obesity is caused or aggravated by his service-connected disabilities. The Board finds that the evidence in support of this claim is mixed. Notably, although obesity itself is not considered a disease or injury for which direct or secondary service connection may be granted, obesity can act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See Marcelino v. Shulkin, No. 16-2149, 2018 U.S. App. Vet. Claims LEXIS 64, at *6 (Vet. App. Jan. 23, 2018); VAOPGCPREC 1-2017. Specifically, VA's General Counsel has held that where it is shown that a service-connected disability causes a veteran to become obese and that obesity, in turn, is a substantial factor in causing additional disability, which disability, but for the veteran's obesity, would not have occurred, the resulting additional disability can be service-connected on a secondary basis. VAOPGCPREC 1-2017. As for the link between the Veteran obesity and PTSD, the evidence is split, as the November 2020 VA examiner believes that they are not linked and the August 2021 VA examiner, while opining against the Veteran's claim, conceded that there is a link between the psychiatric disorder and obesity. Giving the Veteran the benefit of the doubt, the Board finds that there is a sufficient basis to find that the Veteran's psychiatric disorder is linked to his obesity. In the instant case, the medical evidence supports the fact that the Veteran's obesity has caused or impacted his bilateral pes planus. Thus, the evidence as a whole suggests that but for the Veteran's obesity, the Veteran would not have developed pes planus. Accordingly, given the totality of the evidence in this case, to include the competent medical evidence discussed above, and with resolution of all reasonable doubt on certain elements of the claim in the Veteran's favor, the Board finds that service connection for bilateral pes planus is warranted on a secondary basis. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for gout in feet The Veteran asserts that his gout originated due to post-service alcohol use due to the severity of his service-connected posttraumatic stress disorder (PTSD). At the outset, the Board finds that the medical evidence of record demonstrates that the Veteran has a current diagnosis of gout of the feet, as confirmed in the August 2018 VA examination. Therefore, the first element of service connection has been met. The Board notes that there are numerous opinions in the record from VA examiners. In August 2018, a VA examiner opined that the Veteran's gout in the feet was less likely than not caused or aggravated by his service-connected disabilities, noting that no evidence supports a finding that the Veteran's gout is caused by his PTSD. A November 2020 examiner opined that, while consumption of large amounts of alcohol have been associated with gout, many individuals who do not consume alcohol can still develop gout. However certain conditions have a strong association with gout such as cardiovascular disease, metabolic conditions such as insulin resistance, diabetes mellitus, type II, metabolic syndrome, and renal impairment, all of which are conditions that the Veteran has been diagnosed with. The examiner opined that it is at least as likely as not the Veteran would have developed his current gout as documented in the medical record, irrespective of alcohol intake. The medical record does not document chronic gout. The examiner also noted that there is no evidence any of the Veterans service-connected disabilities (PTSD (including alcoholism), hearing loss, ear infection (otitis media), or tinnitus) would cause (see above) or permanently aggravate gout beyond its natural progression. A December 2020 VA examiner opined that the Veteran's gout was less likely than not caused or aggravated by his active-duty service, as it was not noted during service, and it was diagnosed in 2008. The examiner also opined that the Veteran's service-connected disabilities are not medically related to his diagnosed gout. However, the examiner acknowledged that alcohol consumption is a known risk factor for gout, and that while it is not a cause, it increases the likelihood the condition will develop. The examiner also noted that there is no clinical evidence that the Veteran's gout has been aggravated by any service-connected disabilities. Upon review of the evidence of record, the Board finds that while the medical evidence of record has determined that the Veteran's gout was not directly due to, or caused by, his active-duty service, there is an apparent consensus that the Veteran's PTSD also caused his alcohol use, so the remaining question is whether the Veteran's gout was caused or aggravated by his alcohol use. The Board finds that the evidence in support of this claim is mixed. Notably, although alcohol use itself is not considered a disease or injury for which direct or secondary service connection may be granted, alcohol use can act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. 38 U.S.C. § 105 and § 1110 preclude compensation for primary alcohol and drug abuse disabilities and secondary disabilities that result from primary alcohol or drug abuse. Allen v. Principi, 237 F. 3d 1368, 1376 (Fed. Cir. 2001). However, service connection is warranted when drug or alcohol abuse results secondarily from a service-connected disability, but compensation should only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by the veteran's primary service-connected disability." Allen, 237 F.3d at 1371, 1381. As for the link between the Veteran gout and alcohol use, while the November 2020 and December 2020 VA examiners provided negative opinion, they still confirmed that alcohol use can impact the Veteran's gout. Giving the Veteran the benefit of the doubt, the Board finds that there is a sufficient basis to find that the Veteran's gout is impacted by his alcohol use, and that, therefore, it is impacted by his PTSD. Thus, the evidence as a whole suggests that but for the Veteran's alcohol use, the Veteran would not have developed his current gout disability. Accordingly, given the totality of the evidence in this case, to include the competent medical evidence discussed above, and with resolution of all reasonable doubt on certain elements of the claim in the Veteran's favor, the Board finds that service connection for gout in the feet is warranted on a secondary basis. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction is remanded. The Veteran asserts that his erectile dysfunction is due to, or impacted by, his service-connected posttraumatic stress disorder (PTSD). The Veteran was afforded VA examinations in August 2018 and August 2021, and opinions from November 2020 and December 2020. The August 2018 VA examiner confirmed a diagnosis of erectile dysfunction. The examiner opined that the Veteran's erectile dysfunction was less likely than not caused or aggravated by his service-connected disabilities, noting that no evidence supports a finding that the Veteran's erectile dysfunction is caused by his PTSD. The August 2021 VA examiner similarly confirmed a diagnosis of erectile dysfunction. The November 2020 and December 2020 VA examiners opined that the Veteran's erectile dysfunction is not likely due to his PTSD, explaining that the Veteran is unable to achieve erection at any time, which is not consistent with psychogenic or mental health etiology. The examiner added that the etiology is more likely cardiovascular or due to his metabolic disabilities. The Veteran's treatment records indicate that the Veteran has a disability that could be related to a service-connected PTSD, as the Veteran's PTSD has been linked to his obesity and his obesity may be one of the factors that impact his cardiovascular health. The Board therefore finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of the diagnosed erectile dysfunction disability. 2. Entitlement to service connection for cervical spine degenerative arthritis, cervical degenerative disc disease, and cervical myelopathy is remanded. 3. Entitlement to lumbar spine degenerative arthritis and lumbar spine degenerative disc disease is remanded. The Veteran asserts that his cervical spine and lumbar spine disabilities are due to, or impacted by, a claimed in-service injury in 1961. The Veteran was afforded VA examinations in November 2020 and August 2021 for his lumbar spine disability. Both examinations confirmed the Veteran's disabilities and provided negative nexus opinions. However, the Board finds that the August 2021 opinions did not sufficiently comply with the April 2021 Board remand directives. Therefore, another remand is necessary to ensure compliance with the Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. The issue of entitlement to a TDIU is, in part, based on the Veteran's service-connection claims. Thus, as the issue of entitlement to a TDIU is intertwined with the remanded service connection claims for the Veteran's lumbar spine and cervical spine disabilities, a remand is warranted for the claim for TDIU. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Provide the claims file to an/the appropriate clinician(s) for the purpose of eliciting an opinion as to whether: a) The Veteran's service-connected psychiatric disability, to include alcohol abuse and obesity, was a substantial factor in causing or aggravating the Veteran's erectile dysfunction, cervical spine disability, and/or lumbar spine disability? b) If so, would the Veteran's erectile dysfunction, cervical spine disability, and/or lumbar spine disability not have occurred but for obesity caused or aggravated by the service-connected disability? Each of the requested opinions above must be supported by a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran's lay statements regarding the nature, onset, and chronicity of symptoms and medical articles submitted by the Veteran in support of his claim which are included in the claims file and cited in a February 5, 2021, third party correspondence. The examiner(s) is/are advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. If any examiner is unable to offer a requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Then, complete any additional development deemed necessary and readjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.