Citation Nr: 21065643 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 13-31 963 DATE: October 26, 2021 ORDER Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disease or injury is denied. Entitlement to service connection for headaches, to include as secondary to service-connected disease or injury is denied. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disease or injury is denied. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disease or injury is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disease or injury is denied. FINDINGS OF FACT 1. Cervical spine disability was not manifest in service or within the first post service year, is not otherwise related to service and is unrelated (caused or aggravated) to service-connected osteoarthritis with residuals, compression fracture, T10 and L2. 2. Headache disability was not manifest in service or within the first post service year, is not otherwise related to service and is unrelated (caused or aggravated) to service-connected osteoarthritis with residuals, compression fracture, T10 and L2. 3. Left hip disability was not manifest in service or within the first post service year, is not otherwise related to service and is unrelated (caused or aggravated) to service-connected osteoarthritis with residuals, compression fracture, T10 and L2. 4. Right hip disability was not manifest in service or within the first post service year, is not otherwise related to service and is unrelated (caused or aggravated) to service-connected osteoarthritis with residuals, compression fracture, T10 and L2. 5. Erectile dysfunction (ED) was not manifest in service and is not attributable to service. The disability is unrelated (caused or aggravated) to service-connected osteoarthritis with residuals, compression fracture, T10 and L2. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for headache disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for right hip disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for left hip disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for ED are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to May 1976. These matters came before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2016, a hearing was held before the undersigned Veterans Law Judge (VLJ). The VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran's claim and inquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with 38 C.F.R. § 3.103. The Board remanded the matters to the Agency of Original Jurisdiction (AOJ) in March 2018 and April 2021. They have been returned to the Board. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (arthritis and other organic diseases of the nervous system) will be presumed related to service if they manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also warranted for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any 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); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disease or injury is denied. 2. Entitlement to service connection for headaches, to include as secondary to service-connected disease or injury is denied. 3. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disease or injury is denied. 4. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disease or injury is denied. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disease or injury is denied. The Veteran contends that these disabilities are related to service and specifically asserts they are secondary to his service-connected residuals, compression fracture, T10 and L2. See August 2011 written statement accepted as claim. He also relates his headaches to his neck disability. He testified that he has been told his hip disability could be due to steroid use and he believes he could have been given steroids for pain and swelling related to his back injury he incurred in service which led to the compression fracture, T10 and L2. He believes his ED is related to medication for the fracture. An August 2011 letter from his spouse indicates recent ED which she also attributes to his medications. The issue for the Board is whether the Veteran has current disability that began during service or within an applicable presumptive period or is at least as likely as not related to an in-service injury or disease or is proximately due to or aggravated by a service-connected disability. We find that while there is post service disability, there was no in-service incurrence or aggravation of a disease or injury or incurrence within the applicable presumptive period nor is there a nexus between current disability and service nor is current disability proximately due to or aggravated by a service-connected disease or injury. With regard to direct service connection, the Board notes that the Veteran's service treatment records (STRs) are absent complaints of or treatment for these disabilities or symptoms associated therewith. Significantly, his May 1976 discharge physical examination reflects normal clinical evaluation as to the head and neck, neurologic and genitourinary systems, and notes only the fractured T10 and L2 vertebra in November 1974 with regard to the spine and musculoskeletal system. Indeed, these conditions are first noted in VA and non-VA treatment records years later. Avascular necrosis of bilateral hips was noted in April 2004, with left then right hip replacement in June 2004 and September 2005 respectively. Neck pain was noted in 2010, with cervical degenerative disc disease, headaches and erectile dysfunction noted from 2011. A June 2010 MRI revealed cervical spondylosis. We also note that the Veteran has been awarded Social Security Administration (SSA) disability from 2007 due to osteoarthritis and disorders of the back. The Veteran was provided a VA examination in October 2011 in order to determine whether his cervical spine disability, right hip disability, left hip disability, headaches, and erectile dysfunction are caused or aggravated by his residuals, compression fracture, T10 and L2. After examination of the Veteran and consideration of his medical history, the VA examiner concluded that it is less likely than not that the Veteran's disabilities of the bilateral hips, cervical spine, headaches, and erectile dysfunction are due to or the result of the service-connected residuals, compression fracture, T10 and L2. However, the VA examiner did not provide an opinion as to whether the Veteran's cervical spine disability, right hip disability, left hip disability, headaches, and erectile dysfunction are aggravated by his residuals, compression fracture, T10 and L2. The examiner opined that the cervical spine disorder was more likely age-related, noting that the fractures of the T10 and L2 spine healed in service. Headaches were likely associated with the neck condition as there were none in service. The hip replacements were due to avascular necrosis in 2004 and not the 1974 back injury. ED was age related and due to other factors, such as testicular hypogonadism, hypertension, and history of smoking. Because aggravation was not addressed, the Board ordered remand so that an addendum opinion could answer: Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has a cervical spine disability, headache disability, left hip, right hip or ED disabilities that is caused or aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected type residuals, compression fracture, T10 and L2. If the examiner finds that the cervical spine disability is aggravated by the service-connected residuals, compression fracture, T10 and L2, then he/she should quantify the degree of aggravation, if possible. While etiology opinions were obtained, and the T10-L2 disorder was recharacterized as osteoarthritis with residuals, compression fracture T10 and L2, the Veteran's attorney argued in January 2021 that the VA opinions obtained in July and November 2020 are inadequate. The attorney noted that while the examiner identified lumbar arthritis as caused by the compression fracture in November 2020, it is unclear whether the arthritis was considered when rendering the opinions as to aggravation in July 2020. Finding the medical opinions inadequate, we remanded the matters again in April 2021 for an addendum opinion regarding the nature and likely etiology of his cervical spine, headache, right hip, left hip disabilities and ED. The VA examiner was to address whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has cervical spine disability, headache disability, left hip, right hip disabilities or ED that are caused or aggravated (i.e., permanently worsened) by his service-connected disability now characterized as osteoarthritis with residuals, compression fracture T10 and L2. If the examiner found disability aggravated by the service-connected disability, then they were asked to quantify the degree of aggravation, if possible. The AOJ was also asked to address whether the arthritis associated with the T10-L2 disorder was correctly rated under DC 5003 for degenerative arthritis rather than traumatic, under DC 5010. If correctly under Code 5003 (degenerative), the AOJ was to consider whether there are subsequent manifestations of the same disease process in other locations, consistent with 38 U.S.C. § 1101; 38 C.F.R. § 3.303 and the M21-1 provisions addressing arthritis. We note that the AOJ issued a rating decision in July 2021 reflecting that the current osteoarthritis with residuals, compression fracture, T10 and L2 (also claimed as lumbar disc bulge) is rated under DC 5010. With regard to the medical opinion aspects of the remand, a VA medical opinion was obtained in May 2021. First, the examiner, who reviewed the record, opined that the bilateral hip disorder, cervical spine disorder, headaches and ED were less likely than not (less than 50 percent probability) proximately due to or the result of service connected osteoarthritis with residuals, compression fracture, T10 and L2. It was noted that the STRs were absent complaints of or treatment for these disabilities or symptoms of bilateral hips, cervical spine, headaches, and erectile dysfunction. The examiner explained there was no link between the Veteran's diagnosis of compression fracture, T10 and L2 with his new complaints of bilateral hips, cervical spine, headaches, and erectile dysfunction. The compression fracture at T10 and L2 is a localized fracture with localized pain that is not related to the Veteran's complaints of cervical spine, bilateral hips and erectile dysfunction disabilities. It is less likely than not that the Veteran's disabilities of bilateral hips, cervical spine, headaches, and erectile dysfunction are due to or the result of the service-connected residuals, compression fracture, T10 and L2. The examiner noted that most compression fractures due to injury heal in 8 to 10 weeks with rest, wearing of a brace, and pain medicines. However, recovery can take much longer if surgery was done. Fractures due to osteoporosis often become less painful with rest and pain medicines. The cited medical literature in support as well. Jul 7, 2019 Compression fractures of the back: MedlinePlus Medical Encyclopediahttps://medlineplus.gov ency article Next, the examiner could not determine a baseline level of severity of the claimed disorders based upon medical evidence. The noted that STRs were absent complaints of or treatment for these disabilities or symptoms of bilateral hips, cervical spine, headaches, and erectile dysfunction. Regardless of an established baseline, they found that the Veteran's bilateral hips disorder, cervical spine disorder, headaches, and erectile dysfunction are not at least as likely as not aggravated beyond natural progression by the osteoarthritis with residuals, compression fracture T10 and L2. Again, they noted the negative STRs, the lack of a medical link between the compression fracture and the current disorders and the medical literature indicating that most compression fractures heal in the aforementioned time period. While the attorney has again urged the new opinion report is inadequate, we instead find it to be based upon sufficient facts or data, the product of reliable principles and methods and the result of principles and methods reliably applied to the facts. It is adequate and indeed probative. We also note that the AOJ adequately addressed the matter of the appropriate DC for the compression fracture, and no further discussion of DC 5003 is required in conjunction with this appeal. Neither the VA nor non-VA treatment records suggest findings inconsistent with the May 2021 opinion report. Here, the preponderance of the evidence is against the claims on a direct or presumptive basis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. The preponderance of the evidence is also against finding that these diseases, initially diagnosed after service, were incurred in service when all of the evidence, including that pertinent to service, is considered. 38 C.F.R. § 3.303 (d). None of the conditions were present in service, and indeed there is evidence that they were not present inasmuch as the service separation examination shows negative clinical examinations. As to the cervical spine disability, bilateral hip disabilities and headaches, which these may be considered presumptive diseases, these were not manifest for years after service and thus they were not manifest within the first post service year. He did not have characteristic manifestations sufficient to establish or suggest the disease processes. Service connection based on the presumption is not warranted. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). To the extent that the Veteran alleges the conditions were present in service, and there has been continuity of symptomatology since service, the record is against his assertions. His assertions are outweighed by the negative treatment record for years following service. Moreover, these conditions have not been related to service by any competent evidence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. None of the treatment records contains an opinion that disorders are related to service. As to secondary service connection, we find the 2021 VA opinion to be competent evidence. While he stated that he was told his hip disorder was due to steroid use for his compression fracture, and he asserts that ED is due to medication for a service-connected disability, no medical evidence has been presented to support this theory. Moreover, the VA examiner in 2021 reviewed the record and found none of his disorders on appeal were proximately due to or aggravated by the compression fracture. The Veteran's contentions pale in comparison to the negative VA medical opinion obtained based on the 2021 BVA remand; the lay assertions as to nexus are not competent and are not supported by any later medical opinion. The 2021 medical opinion is accorded the most probative weight and is consistent with the documented record. The medical opinion is well-supported and based on a comprehensive review of the record by a medical professional. The weight of the evidence is against concluding bilateral hip disorder, cervical spine disability, headaches or ED are proximately due to or aggravated by service-connected disability. The benefits sought on appeal are denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.