Citation Nr: 21076465 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-48 901 DATE: December 23, 2021 ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for diabetes is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for bilateral lower extremity neuropathy is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran's prostate cancer, diabetes, and erectile dysfunction did not become manifest in service or for many years thereafter and are not related to service. 2. The record evidence shows that the Veteran does not experience any current disability due to his claimed tinnitus, sleep apnea, or bilateral lower extremity neuropathy which could be attributed to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. 2. The criteria for service connection for diabetes have not been met. 8 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for bilateral lower extremity neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1958 to May 1960. This matter is on appeal before the Board of Veterans Appeals (Board) from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. Prostate cancer, diabetes, and erectile dysfunction The Board finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for prostate cancer, diabetes, and erectile dysfunction. The Veteran alleges that he has current prostate cancer, diabetes and erectile dysfunction (ED) related to service. The record does not include any medical evidence indicative of prostate cancer, diabetes, or ED during service. In this regard, the Veteran's April 1960 separation examination showed normal genitourinary and endocrine systems and sugar testing was normal. There is also no post-service medical evidence of the presence of any of these conditions until many decades after service. In this regard, the earliest medical evidence of record of prostate cancer is from 2006, the earliest medical evidence of erectile dysfunction is from soon thereafter and the earliest medical evidence of diabetes is from 2013. See e.g. October 2006 private treatment record, indicating that the Veteran was to begin treatment for prostate cancer, September 2008 private treatment record showing that the Veteran was being treated for ED with Levitra, and April 2016 private treatment record noting a history of diabetes which was diagnosed in 2013. This is a factor that weighs against the claims for direct service connection. See Maxson v. West, 12 Vet. App. 452 (1999), affd, 230 F.3d 1330 (Fed. Cir. 2000). There also is no medical evidence which even suggests a relationship between the Veteran's prostate cancer, diabetes and erectile dysfunction and his military service. Thus, the Board finds a VA examination or medical opinion concerning the etiology of these claimed disabilities was not required even under the low threshold of McLendon. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran asserted that these disabilities are related to service. As a layperson without any demonstrated medical expertise, his assertions are not afforded any probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, although the evidence suggests that the Veteran's ED was caused by his prostate cancer, as there is no basis for awarding service connection for prostate cancer, there also is no basis for awarding service connection for ED as secondary to prostate cancer. In other words, prostate cancer, diabetes, and ED were not shown during service or for many years thereafter and these current disabilities otherwise are not related to service. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for prostate cancer, diabetes, or ED. In summary, the Board finds that service connection for prostate cancer, diabetes, and erectile dysfunction (ED) is not warranted. Bilateral lower extremity neuropathy, sleep apnea, and tinnitus The Veteran also has alleged that he has current bilateral lower extremity neuropathy, sleep apnea, and tinnitus related to service. The medical evidence does not show diagnoses of bilateral lower extremity neuropathy, sleep apnea or tinnitus. In regard to tinnitus, the Veteran was afforded a VA audiological evaluation in June 2018. At that examination, he specifically reported that he did not suffer from tinnitus. Similarly, private medical records, while showing evaluation for hearing loss, do not show any reports or findings of tinnitus. See e.g. January 2017 private audiological evaluation which shows the presence of hearing loss but does not include any finding of tinnitus and March 2017 private gastrointestinal consultation where review of symptoms was negative for tinnitus. Inasmuch as the Veteran claimed service connection for tinnitus, the Board considers him as having reported tinnitus at the time of his claim. See August 2017 initial claim. The Board presumes that, if he actually had tinnitus, he would have reported it to the June 2018 VA examiner (i.e. either that he currently had tinnitus or that it was present in August 2017 when he filed his claim). Thus, given the specific negative report he made to the June 2018 examiner, along with the earlier January 2017 negative review of symptoms, the Board does not find the Veteran's reporting of tinnitus credible. See Jandreau, 492 F.3d at 1372. Regarding sleep apnea, the private medical records are negative for any diagnosis of this disability. Also, at the March 2017 private gastrointestinal consultation, review of symptoms was negative for sleep apnea. Similarly, the private medical records also do not show any diagnosis of bilateral lower extremity neuropathy or reporting of any relevant symptoms. Nor is there other medical evidence of record showing a diagnosis of sleep apnea. As a layperson with no demonstrated medical expertise, the Veteran is not competent to render a diagnosis of this disease. While he is competent to report symptoms of neuropathy, as a layperson, he is not deemed competent to render a diagnosis of a disability manifested by neuropathy. Even assuming the Veteran has such competence, the Board presumes that, if had he had current neuropathy or symptoms, he would have reported this to treating medical personnel just as he reported his other medical problems. Consequently, as the medical evidence is negative for such reporting, the Board does not find the Veteran's assertion of having current neuropathy to be credible. Id. In the absence of proof of current disability, there can be no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the lack of current disability is dispositive, there also is no indication of any neuropathy, sleep impairment or tinnitus during service or for many years thereafter and no medical evidence tending to suggest that any current claimed neuropathy, sleep apnea or tinnitus otherwise is related to service. In this regard, the service treatment records are negative for any neuropathy, sleep impairment or tinnitus. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). More importantly, there is no evidence to suggest the presence of any of these conditions until decades after service. And there is no medical opinion of record tending to suggest a nexus between any current bilateral lower extremity neuropathy, sleep apnea, or tinnitus and military service. With regard to the service connection claims for sleep apnea and bilateral lower extremity neuropathy, as there is no evidence of an event, injury or disease in service pertaining to these conditions, no medical evidence suggesting a relationship between these conditions and service, and no continuity of symptoms since service, a VA examination or medical opinion concerning the etiology of these alleged conditions was not required. 38 C.F.R. § 3.159(c)(4); see McLendon, 20 Vet. App. at 83. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for bilateral lower extremity neuropathy, sleep apnea, and tinnitus. In summary, the Board finds that service connection for bilateral lower extremity neuropathy, sleep apnea, and tinnitus is not warranted. REASONS FOR REMAND Entitlement to service connection for GERD, cataracts, and hypertension is remanded. The record indicates that VA examinations initially were scheduled for February 2018 to assess the likely etiology of the Veteran's current GERD, hypertension, and cataracts. The Veteran was a no show for these examinations. Subsequently, in a March 2018 communication, he explained that he had contacted the medical provider the day before the scheduled examinations to inform them that he was unable to report due to being hospitalized. He asked that the examinations be rescheduled and requested that they be performed at the VA Medical Center in Lyons, New Jersey. A subsequent April 2018 VA examination request shows that the examinations were to be rescheduled. A May 2018 exam scheduling request clarification requested that the examinations be cancelled and a July 2018 exam request modification indicates that the examinations were cancelled. Review of the record does not show the reason for cancellation of these examinations. Because the RO initially determined that the examinations were necessary, and because the Board is not able to discern why they rescheduled and then cancelled, remand is required to make another attempt to afford the Veteran examinations to assess the likely etiology of hypertension, GERD and cataracts. If it is not feasible for the examinations to be performed in person, then telehealth or claims file review with accompanying medical etiology opinions should be conducted. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the nature and etiology of any current GERD. If it is not feasible to perform the examination in person, a telehealth examination should be performed or a claims file review with provision of an accompanying medical etiology opinion. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a gastrointestinal disability, to include GERD, is related to active service or any incident of service, to include the Veteran's report of frequent indigestion on his April 1960 report of medical history at separation. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each gastrointestinal disability, to include GERD, currently experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a gastrointestinal disability, to include GERD, alone, is insufficient rationale for a medical nexus opinion. 3. Schedule the Veteran for examination to determine the nature and etiology of any current hypertension. If it is not feasible to perform the examination in person, a telehealth examination should be performed or a claims file review with provision of an accompanying medical etiology opinion. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hypertension is related to active service or any incident of service, to include an April 1960 report of medical history noting a history of high or low blood pressure and the July 1957 pre-induction examination notation that he recently had received a hospital evaluation for hypertension with no disease found. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for hypertension, alone, is insufficient rationale for a medical nexus opinion. 4. Schedule the Veteran for examination to determine the nature and etiology of any current cataracts. If it is not feasible to perform the examination in person, a telehealth examination should be performed or a claims file review with provision of an accompanying medical etiology opinion. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that cataracts are related to active service or any incident of service, to include an April 1960 report of medical history at separation where the Veteran noted a history of eye trouble. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the Veteran's eyes, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for cataracts, alone, is insufficient rationale for a medical nexus opinion. 5. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.