Citation Nr: 21071370 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-11 298 DATE: November 30, 2021 ORDER Entitlement to service connection for chronic mechanical lumbar spine syndrome with left lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for type II diabetes mellitus (DM) is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is remanded. FINDING OF FACT The Veteran's chronic mechanical lumbar spine syndrome with left lower extremity radiculopathy is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for chronic mechanical lumbar spine syndrome with left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2019); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1978 to February 1988. He appeals a July 2014 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for a lumbar spine condition, DM, bilateral peripheral upper and lower extremity neuropathy, and ED with loss of use of a creative organ. Originally, the Veteran requested a hearing before the Board of Veterans' Appeals (Board). See February 2017 VA Form 9. However, the Veteran withdrew his hearing request in a September 2021 letter; accordingly, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). A veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury suffered in active service, or for aggravation of a preexisting injury suffered in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has chronic mechanical lumbar spine syndrome with left lower extremity radiculopathy, spinal stenosis, and arthritis. See August 2021 Dr. D.B.M. examination report; see also April and May 2016 VA treatment records. The Veteran contends he "originally injured [his] back while stationed at Naval Weapons Station, Yorktown Virginia." See April 2015 notice of disagreement (NOD). He stated his back was "locked in a position" and he "walked face-down for weeks" while being treated at the naval hospital on base until he was sent to Fort Eustis Army Base in Newport News, Virginia for physical therapy. Id. Although the Veteran's service treatment records (STRs) are barely legible, the Veteran's claimed events are recorded in his record. For example, there are two specific treatment records from the Naval Weapons Stations in Yorktown noting the Veteran injured his back after lifting weights on two separate occasions. See STRs ("was lifting weights x 4 days ago. Also on the same day patient was lifting an oil drum, approximately 75 to 100 pounds. Veteran is unable to twist or turn...range of motion very limited...lower back sprain."); see also January 1981 STRs ("Patient pulled same muscle in back again lifting weights...."). Thus, the Board finds the first and second elements for service connection have been met. Thus, the claim centers on whether the Veteran's current lumbar spine condition is related to his in-service injuries. In December 2016, a clinician reviewed the Veteran's record to provide an opinion on "whether the Veteran's back condition had its genesis during service or manifested within the year following separation." The clinician opined that the Veteran's back condition, diagnosed as spinal stenosis and arthritis, less likely than not began in service or one year following separation. See December 2016 VA medical opinion. As rationale, the clinician noted the Veteran's separation examination and STRs did not note any back pain or condition. Id. As noted above, the Veteran's STRs do note treatment for back pain in service; however, they were not uploaded in the Veteran's record at the time of the December 2016 medical opinion. As this medical opinion is not based on a complete review of the record, the December 2016 medical opinion is not probative. In August 2021, Dr. D.B.M. provided a detailed medical opinion regarding the etiology of the Veteran's lumbar spine condition. After interviewing the Veteran and reviewing the record, Dr. D.B.M. opined that the Veteran's chronic mechanical lumbar spine syndrome with left lower extremity radiculopathy was at least as likely as not "the direct result of multiple injuries he sustained while on active duty." See August 2021 Dr. D.B.M. medical opinion. To support his opinion, Dr. D.B.M. discussed the Veteran's in-service history and injuries, analyzed his post-service medical and work history, and provided medical literature regarding chronic mechanical low back syndrome in detail. Dr. D.B.M. is an orthopedic surgeon with over fifty years of experience and the Board finds his August 2021 medical opinion highly probative when weighed against the evidence of record as there is no evidence to the contrary. Thus, the Board finds there is competent and credible evidence of record connecting the Veteran's lumbar spine condition to his service, and the third element for service connection is met. Accordingly, the Board grants service connection for chronic mechanical lumbar spine syndrome with left lower extremity radiculopathy. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran contends his DM was caused by his exposure to water contaminants while serving at Camp Lejeune, North Carolina. See April 2015 NOD. Although the Veteran's exact date range of service at Camp Lejeune is unclear from the record, military personnel records reflect the Veteran was stationed there in November 1981, February 1982, and March 1982. Veterans stationed at Camp Lejeune for more than 30 days during the presumptive period of August 1, 1953 to December 31, 1987 are presumed exposed to water contamination. See 38 C.F.R. § 3.307(a)(7). While the Veteran's DM is not included in the diseases subject to presumptive service connection due to exposure to contaminants in the water supply at Camp Lejeune under 38 C.F.R. § 3.309(f), a non-presumptive disease may still be entitled to service connection on a direct basis if the medical evidence supports a relationship between that disease and exposure to contaminated water. See Combee v. Brown, 34 F.3d 1039, 1043 (1994). As the AOJ has not yet obtained a VA examination to assess this theory of entitlement to service connection, a remand is required. The Veteran contends his ED and bilateral upper and lower extremity peripheral neuropathy are secondary to his DM. Thus, since the decision on service connection for DM impacts a decision on entitlement to the remaining issues, the Board will defer decision on the matter as the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the record appears incomplete. VA has a duty to obtain relevant records, including private treatment records that have been sufficiently identified. See 38 C.F.R. § 3.159(c). With the Veteran's April 2015 NOD, he submitted numerous medical records, including treatment for DM, neuropathy, and ED; however, it is unclear if the Veteran submitted all pertinent records from these private physicians regarding his DM. As these issues are already being remanded, the AOJ should also make reasonable efforts to obtain all sufficiently identified private treatment records. The matters are REMANDED for the following action: 1. Obtain all relevant private and VA treatment records that have not already been associated with the claims file, including, but not necessarily limited to, the Veteran's private treatment records from Kentucky Diabetes Endocrinology Center, Dr. Rao Bhatraju, and Pikeville Medical Center. Send the Veteran VA Form 21-4142 to obtain any relevant private treatment records regarding his DM, peripheral neuropathy, and ED. If any identified records are not obtainable, or none exist, the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of his DM, to include secondary conditions of ED and bilateral upper and lower extremity peripheral neuropathy. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: (a) Is it at least as likely as not (a 50 percent probability or more) the Veteran's DM was incurred in or is otherwise related to his time in service, to include his exposure to contaminated water at Camp Lejeune, North Carolina? (b) Is it at least as likely as not the Veteran's ED and/or bilateral upper and lower extremity peripheral neuropathy were (i) caused or (ii) aggravated by his DM? The examiner should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles should be considered. 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with an SSOC and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.