Citation Nr: 21076159 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-13 728 DATE: December 22, 2021 ORDER Service connection for a lumbar spine disability is denied. Service connection for sleep apnea is denied. Service connection for an eye disability is denied. Service connection for gastroesophageal reflux disease is denied. Service connection for a vasectomy is denied. Service connection for posttraumatic stress disorder is denied. REMANDED Service connection for bilateral peripheral neuropathy of the lower extremities is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a lumbar spine disability began during active service, or that the disability is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that sleep apnea began during active service, or that the disability is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that an eye disability began during active service, or that the disability is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that gastroesophageal reflux disease began during active service, or that the disability is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence of record is against finding that the Veteran had a vasectomy at any time during or approximate to the pendency of the claim. 6. The preponderance of the evidence of record is against finding that the Veteran had posttraumatic stress disorder at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for an eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for gastroesophageal reflux disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a vasectomy disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for posttraumatic stress disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1969 until his honorable discharge in June 1971. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 decision issued by a Department of Veterans Affairs (VA) Regional Office. In August 2018 and January 2021, the Board remanded each claim to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain outstanding Social Security Administration records, private and VA medical records, to translate documents, and to obtain VA examination as to his claimed disabilities. The VA Regional Office accomplished these directives to the extents reasonable. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Additional theories of service connection will be discussed where appropriate in the following analysis. Analysis 1. Service connection for a lumbar spine disability First element: A current disability In October 2019, the Veteran received a VA examination addressing his lumbar spine. The examiner diagnosed the Veteran with lumbar degenerative disc disease with bulging disc, and bilateral lower extremity radiculopathy stemming from low back pain. His VA medical records document similar diagnoses, including lumbar spondylosis diagnosed in April 2021. Based on this credible and probative evidence, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof During his April 2018 Board hearing, the Veteran testified he was required to carry heavy equipment during basic training, and he would fall down often while jumping over objects and spaces. He further testified that he experienced a motor vehicle accident in service. He asserts he sustained a back injury as a result from his basic training and motor vehicle accident, which has continued since service. The Veteran acknowledges that there is no in-service documentation of these events within his military records. He testified that he did not report his injuries as it was seen as a sign of weakness. In addition, he testified that his motor vehicle accident stemmed from taking a jeep without permission, which was another reason he did not report his back injury. The Board, as factfinder, is responsible for assessing the credibility and weight to be given to evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). When assessing the credibility of lay evidence, the Board may consider factors such as facial plausibility, bias, self-interest, internal consistency, and consistency with other evidence of record. Caluza v Brown, 7 Vet. App. 498, 511 (1995); Southall-Norman v. McDonald, 28 Vet. App. 346, 355 (2016). When assessing oral testimony before the Board, the Board may consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the testimony with other testimony and affidavits submitted on behalf of the veteran. Caluza, 7 Vet. App. at 511. Here, the Board finds that the Veteran's testimony as to experiencing a back injury in service is not credible and is heavily outweighed by other credible evidence of record. First, the Veteran's testimony explaining why he did not report experiencing back pain in service, because he did not want to show weakness, is inconsistent with his medical records that recorded reports of other injuries and pain. He offered no explanation why he sought treatment for pain other than a back injury, and he did not explain why reporting those instances of pain was any different than instances of back pain. Second, despite his testimony in April 2018, he told the October 2019 VA examiner that he could not recall when his back condition began, offering no statement about any instances of back pain in service. Yet, he did mention the motor vehicle accident as a basis for shoulder pain during a shoulder examination in October 2019. He is service connected for a left shoulder disability. The Board finds no reasonable explanation for such discrepancy in his recollection and why he mentioned his motor vehicle accident during his shoulder examination but not during his back examination. In addition, during an October 2003 VA Pain Medicine Consult, as recorded by a treating physician, the Veteran reported back pain beginning ten to twelve years prior, placing the onset of any back pain around 1990 at the earliest. There was no mention of an in-service event giving rise to his back pain. Instead, the physician documented a potential connection to the Veteran's then-current work in construction. Finally, the Veteran's May 1971 separation examination did not document any back conditions, nor did the Veteran report experiencing back conditions at the time of separation. The Board finds that in light of the Veteran's inconsistent statements, lack of recollection, and lack of other in-service documentary evidence of a back injury, his statements, or lack thereof, at the time of his separation as to any back conditions best demonstrates he suffered no such back injury in service. The Board finds the evidence just discussed is more credible than the Veteran's lay assertions and heavily weighs against the Veteran's assertion of a back injury in service due to either his physical training or a motor vehicle accident, which subsequently makes his assertions not credible. The Board finds the Veteran did not experience a back injury in service. Therefore, the second element is not satisfied. Third element: A causal link As there is no in-service onset, event, injury, or disease pertaining to a back disability, there is no basis for which a causal nexus can be established. The third element cannot be satisfied. 2. Service connection for sleep apnea During his April 2018 hearing, the Veteran did not provide testimony about a particular event in service that he believed could be related to his obstructive sleep apnea. He theorized his obstructive sleep apnea could be related to his posttraumatic stress disorder. In addition to direct service connection, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) the current disability was either (a) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where aggravation is the relied upon theory, compensation may only be provided to that degree over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448. The Board will analyze his claim for service connection for obstructive sleep apnea under the theory of secondary service connection. First element: A current disability The Veteran received a VA examination in October 2019 addressing his sleep apnea. The examiner documented a diagnosis of obstructive sleep apnea in 2014. The Veteran's VA medical records likewise document a current diagnosis of obstructive sleep apnea. The Board finds this evidence credible and probative. Therefore, the first element is satisfied. Second element: A service-connected disability As discussed fully later in this decision, the Veteran does not have a diagnosis of posttraumatic stress disorder for which service connection may be granted. Thus, secondary service connection is not available based on that condition. The Board recognizes that the Veteran is service connected for major depressive disorder. Thus, the Board will expand his theory of secondary service connection to include his service-connected major depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that the scope of a claim may include any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Therefore, the second element is satisfied. Third element: A causal link The Veteran has offered no evidence or argument in support of his theory for secondary service connection for obstructive sleep apnea. He has not provided lay or medical evidence indicating or reasonably suggesting that his obstructive sleep apnea is secondary to his major depressive disorder. The Veteran's theory, standing alone, is not credible because he is not competent to offer an opinion about what led to his obstructive sleep apnea. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). In short, the Veteran has only asserted a theory without any factual support. The Board finds no reasonable claim for secondary service connection for obstructive sleep apnea based on the Veteran's major depressive disorder. See Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in [38 U.S.C. §] 5107(b) is not applicable based on pure speculation or remote possibility). Although a medical opinion as to secondary service connection was not obtained in this case, the Board finds that VA was not under an obligation to provide one. Section 5103A of Title 38 of the United States Code, captioned "DUTY TO ASSIST," mandates that a medical examination be provided in disability compensation claim cases only when: (1) There is competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (2) There is evidence establishing that an event, injury, or illness occurred in service or within an applicable presumptive period, or the Veteran has a service-connected disability; and (3) There is 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) There is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Each of the elements must be met. Based on the record, the Board finds the evidence, or lack thereof, does not indicate that the Veteran's obstructive sleep apnea may have a causal connection or is associated with the Veteran's major depressive disorder. The Veteran has provided only a generalized theory of service connection unaccompanied by any evidence. "Since all veterans [in a similar situation] could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case." Waters, 601 F.3d at 1278. Therefore, the Board finds a VA examination is not warranted. Accordingly, as the third element is not satisfied, service connection for obstructive sleep apnea is not warranted. 3. Service connection for an eye disability First element: A current disability The Veteran received an eye-conditions VA examination in June 2014. At the time of the examination, the examiner diagnosed the Veteran with open angle glaucoma, senile cataracts in each eye, dry eye syndrome, and drusen. Based on the June 2014 VA examination results, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran has offered no evidence or theories as to why he believes any of his eye disabilities are related to his active service. At his April 2018 Board hearing, his testimony did not directly address any of his eye disabilities. Nor can the Board reasonably interpret any of his testimony to indicate an in-service onset of eye symptoms, or an in-service event, injury, or illness in relation to his eye disabilities. Furthermore, the Board finds no evidence of eye symptoms documented in the Veteran's in-service medical records. At the time of his separation examination in May 1971, he did not report any eye conditions and the evaluator did not document any eye conditions. The Board finds the absence of any eye conditions in service when coupled with the Veteran's report that he had no eye conditions at the time of separation examination is credible and probative evidence that he did not have any eye conditions in service. In light of the lack of evidence of an onset of symptoms in service and the absence of an in-service event, injury, or illness that may be related to his current eye disabilities, the Board concludes the second element is not satisfied. Third element: A causal link As there is no in-service onset, event, injury, or disease illness pertaining to an eye disability, there is no basis for which a causal nexus can be established. The third element cannot be satisfied. 4. Service connection for gastroesophageal reflux disease First element: A current disability The Veteran's VA medical records indicate that the Veteran has a current diagnosis of gastroesophageal reflux disease (GERD). An October 2019 VA examination also confirmed this diagnosis. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof At his April 2018 Board hearing, the Veteran testified that during his basic training he suffered from "constipation and reflux" for which he was prescribed medication. After separation from the military, he reported that he continued to experience problems with GERD. This is the extent of the Veteran's testimony and statements of record as to the onset of his GERD. He makes no assertion of any in-service event, injury, or illness. The Board finds no evidence within his in-service medical records that he was treated for GERD or potential symptoms of GERD. At the time of his May 1971 separation examination, the medical evaluator did not note any issues associated with the Veteran's stomach nor did the Veteran report any such issues. The VA medical records associated with his claims file indicate that in 1992 he received treatment for peptic ulcers. He reported a history of stomach issues, but there is no indication in his medical records as to when his stomach issues started. A September 1992 VA Form VA 10-1000, Hospital Summary, documented that the Veteran had a history of stomach issues in the preceding three years. This is the earliest timeframe in which his GERD symptoms are documented. The Board has carefully considered the Veteran's assertions of GERD symptoms in service and weighed his assertions against the other evidence of record. The Board finds his statements are too generalized to have any credible or probative value. First, the Veteran's testimony did not identify when he experienced symptoms of GERD, what the symptoms were, what medications he was given, or whether he actually took his medications, and if he did, for how long he took his medications. All of this information is highly relevant to determining the credibility of his testimony. Generally, the more specific testimony is, then the more credible and probative it inherently becomes. Second, at the time of his separation from military service, the Veteran did not report any stomach issues. The Board finds the Veteran's statements, or lack thereof, at the time of his separation examination are more credible than his statement at the present time. This is because it is generally understood that when a person reports a contemporaneous feeling it is more inherently credible than when the person reports a feeling that they had in the past because there is more reason to doubt the recollection of a person's memory based on factors such as time, bias, and inaccuracy. See, e.g., Fed. R. Evid. 803(1) (statements describing a condition at the time are more inherently credible and exceptions to hearsay); Fed. R. Evid. 803(4) (statements made for purposes of medical treatment are treated is more inherently credible and are exceptions to hearsay); Fed. R. Evid. 803(7) (evidence not included in a record that would ordinarily be included is evidence that the matter did not occur). While the Board looks to the Federal Rules of Evidence for guidance, they are not binding on the Board. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Finally, the Veteran's post-service medical records document treatment for GERD symptoms beginning around 1990, approximately twenty years after service. Overall, carefully considering the credibility of the Veteran's statements and weighing it against the credibility of the other relevant evidence of record, the Board finds the Veteran's statements are not credible or probative as to an onset of GERD symptoms in service. Therefore, the second element is not satisfied. Third element: A causal link As there is no in-service onset, event, injury, or disease illness pertaining to GERD, there is no basis for which a causal nexus can be established. The third element cannot be satisfied. 5. Service connection for a vasectomy The requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In his January 28, 2014, claim for VA disability benefits, the Veteran sought service connection for a vasectomy. All evidence of record, including an October 2019 VA examination, indicates that the Veteran has never had a vasectomy. The Veteran denied such a procedure during the October 2019 examination. As there is no such disability, the first element is not satisfied, and service connection is not warranted. 6. Service connection for posttraumatic stress disorder Service connection for PTSD is governed by 38 C.F.R. § 3.304(f), which requires: (1) medical evidence diagnosing the condition in accordance with the Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition (DSM-5), 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by the medical evidence, between current symptoms and an in-service stressor. The Veteran received a VA examination in October 2019 addressing his claim for PTSD. The examiner found that he did not satisfy the DSM-5 criteria for PTSD. But she did diagnose the Veteran with major depressive disorder, which includes symptoms of memory loss, for which he is service connected. The Board finds that the examiner conducted a proper examination, consider all relevant evidence and used the DSM-5. No other medical evidence of record indicates the Veteran has a diagnosis of PTSD. Therefore, in the absence of such a diagnosis, the first element is not satisfied, and service connection is not warranted. REASONS FOR REMAND 1. Service connection for bilateral peripheral neuropathy of the lower extremities is remanded. The Veteran's military records reflect service as part of both the 2nd and 3rd Battalion and/or the 23rd Infantry Division in South Korea between April 1, 1968, and August 31, 1971. The VA Regional Office determined the Veteran's service placed him in or near the Korean Demilitarized Zone (DMZ). There is a presumption of exposure to herbicide agents for veterans who "served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period." 38 C.F.R. § 3.307(a)(6)(iv). This presumption is based in part on the acknowledgement that "herbicide[] [agents] were applied near the Korean DMZ from April 1968 to July 1969." McKinney v. McDonald, 796 F.3d 1377, 1379 (Fed. Cir. 2015). Once exposure has been established, certain listed medical conditions are presumptively service connected. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). As the Veteran served in or near the Korean DMZ, he is presumed to have been exposed to herbicide agents. Specific to peripheral neuropathy in relation to herbicide-agent exposure, "early-onset peripheral neuropathy" is a listed disease subject to presumptive service connection. 38 C.F.R. § 3.309(e). But section 3.307(a)(6)(ii) imposes criteria that must be satisfied to be entitled to presumptive service connection under section 3.309(e). Relevant here, section 3.307(a)(6)(ii) requires that "early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service." In this case, the Veteran's bilateral peripheral neuropathy did not become manifest to a degree of 10 percent or more until 2014 when it was diagnosed by electrodiagnostic study, more than 30 years after the Veteran's separation from military service. Therefore, presumptive service connection is not available under 38 C.F.R. § 3.309(e). Even though a presumptive service connection is precluded, a grant of service connection may be made on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board finds remand is required to obtain an addendum opinion for the October 2019 VA examiner, or another qualified clinician, because the October 2019 examiner did not specifically address whether or not the Veteran's bilateral lower extremity peripheral neuropathy is directly related to presumed exposure to herbicide agents during his active military service. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file 2. After any additional records are associated with the claims file, obtain an addendum opinion from the October 2019 examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's bilateral lower extremity peripheral neuropathy. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral lower extremity peripheral neuropathy had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include exposure to herbicide agents during his service in the Korean Demilitarized Zone. The examiner is informed that the Veteran is presumed to have been exposed to herbicide agents based on his military service. The examiner is informed that while the Veteran's bilateral lower extremity peripheral neuropathy is not subject to presumptive service connection as it did not manifest to a degree of 10 percent within one year of separation from service, this does not preclude direct service connection. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of bilateral lower extremity peripheral neuropathy in service or the assertion that an in-service event, injury, or illness led to his bilateral lower extremity peripheral neuropathy. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.