Citation Nr: A21019705 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 211021-192639 DATE: December 10, 2021 ORDER Entitlement to service connection for left shoulder degenerative arthritis is denied. Entitlement to service connection for right shoulder degenerative arthritis is denied. REMANDED Entitlement to service connection for neuropathy, left lower extremity, as secondary to diabetes mellitus type II is remanded. Entitlement to service connection for neuropathy, left upper extremity, as secondary to diabetes mellitus type II is remanded. Entitlement to service connection for neuropathy, right upper extremity, as secondary to diabetes mellitus type II is remanded. Entitlement to service connection for neuropathy, right lower extremity, as secondary to diabetes mellitus type II is remanded. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus type II is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that Veteran's left shoulder degenerative arthritis began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that Veteran's right shoulder degenerative arthritis began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left shoulder degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for right shoulder degenerative arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1967 to July 1969 which included service in the Republic of Vietnam (Vietnam). These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2021 rating decision issued by a VA Regional Office (RO). By way of background, in July 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of all claims noted above which were most recently addressed in an August 2018 rating decision. In September 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. The Board is bound by favorable findings and need not address reconsideration herein. 38 C.F.R. § 3.104. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal. 38 C.F.R. § 20.301. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to service connection for left shoulder degenerative arthritis is denied. 2. Entitlement to service connection for right shoulder degenerative arthritis is denied. The Veteran seeks service connection for bilateral shoulder degenerative arthritis which he contends is related to service. Specifically, the Veteran asserts that he injured his shoulders due to a mine explosion while he was riding aboard a "deuce and 12". See August 2021 VA Shoulders Examination. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, if a veteran was exposed to herbicide agents (e.g., Agent Orange) during active service, presumptive service connection is warranted for certain specified diseases. 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide agent exposure, under current VA regulation: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 41442-41449, 61 Fed. Reg. 57586-57589 (1996). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). As will be discussed in more detail below, the Board finds entitlement to service connection for bilateral shoulder degenerative arthritis is not warranted. At the outset, the Board notes that the Veteran's service in Vietnam has been confirmed as noted in his military personnel records. His military occupational specialty (MOS) was a light truck driver and as a result of his service, he was awarded the National Defense Service medal, Vietnam Service medal, and the Vietnam Campaign medal. There is no documentation to support the Veteran's contention that he suffered injuries during service as the result of a mine explosion. Nonetheless, the Board finds the circumstances of the Veteran's service in conjunction with his MOS support the contention that he was likely a combat veteran during his service in Vietnam. As a result, the Veteran is entitled to the combat presumption as it pertains to his claim seeking service connection for his bilateral shoulder condition. Under the combat presumption, where the evidence shows that a veteran engaged in combat with the enemy, his or her lay reports will be sufficient to establish the occurrence of an event or injury during combat as long as such reports are consistent with the circumstances, conditions, or hardships of such service. This is true even if there is no official record of the reported incident unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). This presumption also extends to a combat veteran's reports of experiencing a permanent disability beginning at the time of injury during combat. Reeves v Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012). However, "[e]ven when the statutory combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty." Id. at 999 n. 9. As such, the evidence must show that the "disability he incurred in service was a chronic condition that persisted in the years following his active duty." Id. at 1000. To that effect, the Board notes that the Veteran's medical treatment records indicate that he currently has degenerative arthritis of the bilateral shoulders as established by diagnostic testing performed in August 2018. As indicated above, the combat presumption applies to the Veteran and his claimed in service event. Therefore, the sole remaining inquiry before the Board is whether there is a nexus between the Veteran's bilateral shoulder arthritis and the presumed occurrence of a mine explosion during service. The Veteran's service treatment records are silent for any treatment, complaints, or diagnosis of any shoulder condition. Post-service medical records are also silent until 2018 when complaints of shoulder pain with subsequent diagnostic testing confirmed the presence of arthritic changes in the Veteran's shoulders. The Veteran was afforded a VA examination in August 2021, whereby the examiner diagnosed him with "mild degenerative changes" of the bilateral shoulders. The examiner noted the Veteran's report of experiencing a mine explosion during service in Vietnam as well as his report of working for General Electric (GE) for over 30 years as a machine operator since leaving the service from 1970 to 2003. It was further noted that the Veteran denied seeking care from a medical provider concerning his shoulders ever since separation. He has received care from VA since 2007; however, the Veteran denied seeing an orthopedist or reporting pain or arthritis to any of his VA medical providers. Ultimately, the examiner opined that the Veteran's bilateral shoulder arthritis was less likely than not incurred in or caused by service combat in Vietnam. He explained, "despite his combat report and lack of treatment records for his shoulders while enlisted, most likely his 30-year occupation at an appliance warehouse after separation" is the cause of the mild degenerative changes in his shoulders reflected in the 2018 diagnostic tests. The Board affords the August 2021 medical opinion great probative weight. The examiner considered all contentions and lay statements of the Veteran including service in Vietnam, reported experience with a mine explosion, his medical history as well as post-service employment history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Furthermore, the examiner's opinion is unequivocally stated and most importantly is consistent with and supported by the medical evidence of record. The Board notes that while the Veteran is certainly competent to describe symptoms and a history of complaints, he has not demonstrated medical competency to associate such symptoms with a specific diagnosis. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (recognizing that a layperson is competent to relate observable symptoms of a disability); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (noting that while, "an appellant who has no special medical expertise may testify as to the symptoms he can observe, he generally is not competent to provide a diagnosis that requires the application of medical expertise to the facts presented"). Again, the Board finds the August 2021 VA opinion to be more persuasive and affords it greater probative weight than the assertions of the Veteran. The Board has also considered whether the Veteran is entitled to service connection for his current diagnosis of bilateral shoulder degenerative arthritis as a "chronic disease." See 38 C.F.R. § 3.303(b). The Veteran's condition of arthritis is included in the list of "chronic" diseases under 38 C.F.R. § 3.309(a). However, the Board notes that the Veteran was diagnosed with bilateral shoulder degenerative arthritis at the earliest, forty-nine years after his separation from active service. Thus, the record does not show that the Veteran's disability manifested to a compensable degree within one year of separation. The Veteran has also not submitted any evidence to the contrary. Therefore, in the absence of credible evidence of degenerative shoulder arthritis within one year after separation or credible evidence of continuity of symptomatology, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309. The Board has also considered whether the Veteran is entitled to service connection for his current diagnosis of bilateral shoulder degenerative arthritis as due to herbicide agent exposure. See 38 C.F.R. § 3.307(a)(6). The condition of arthritis is not included in the list of presumptive diseases due to herbicide agent exposure under 38 C.F.R. § 3.309(e). However, service connection may still be available based on exposure with proof of direct causation. Combee v. Brown, 34 F.3d at 1042. A VA examination was conducted in August 2018 to consider this theory of entitlement. The examiner determined that the Veteran's bilateral shoulder arthritis was less likely than not the result of exposure to herbicide agents in service. In support, he stated that current peer-reviewed medical literature did not support a contention that the condition was caused or aggravated by herbicide agent exposure. Such literature was comprehensive in its ongoing review of veterans' health and herbicide agent exposure. The Board places more probative weight on this opinion, supported by medical literature, than the mere assertion of an association to herbicide agent exposure. Additionally, there is no indication of contemporaneous shoulder complaints or symptoms in service, supporting a theory of direct causation. Further, the Veteran has not submitted any evidence to the contrary. Accordingly, the Board finds that service connection due to herbicide agent exposure is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral shoulder degenerative arthritis, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for neuropathy, left lower extremity, as secondary to diabetes mellitus type II is remanded. 2. Entitlement to service connection for neuropathy, left upper extremity, as secondary to diabetes mellitus type II is remanded. 3. Entitlement to service connection for neuropathy, right upper extremity, as secondary to diabetes mellitus type II is remanded. 4. Entitlement to service connection for neuropathy, right lower extremity, as secondary to diabetes mellitus type II is remanded. The Veteran seeks service connection for bilateral upper and lower extremity neuropathy. Specifically, the Veteran asserts that his current neuropathy symptoms are related to his service-connected diabetes mellitus type II (diabetes). The Veteran was afforded a VA examination in August 2021, whereby the examiner did not diagnose neuropathy. The examiner noted that the Veteran reported "sometimes my hands and legs go numb...sometimes I feel like I'm going to fall...sometimes I drop things...sometimes I have some sharp pain to my hands and feet about once or twice a week." The Veteran denied ever reporting these symptoms to his doctor. It was noted by the examiner that during the Veteran's most recent visit to his primary care physician in June 2021, there were no complaints or diagnosis of neuropathy. Lastly, the examiner noted that there was no evidence of an electromyography (EMG) on file to support a diagnosis. Ultimately, the examiner opined that the Veteran's reported symptoms of intermittent pain, numbness, and decreased touch in the upper extremities were solely based on his subjective reports without any documented medical evidence of chronic findings, diagnosis, nor treatment. The Board finds the August 2021 examination and resulting opinion to be inadequate for adjudicative purposes resulting in a pre-decisional duty to assist error; thus, a remand is warranted. The August 2021 examiner indicated that no documented medical evidence was available to provide the basis of a diagnosis of neuropathy. However, during the VA examination, the examiner noted the Veteran's symptoms of intermittent pain, numbness, and decreased touch sensation as those indicative of neuropathy but declined to perform EMG testing. The examiner used the absence of medical evidence, specifically referring to EMG testing, to decline diagnosing the Veteran with neuropathy and therefore finding no nexus to service. This apparent inconsistency is not explained; therefore the resulting opinion is found to be conclusionary. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusion by an examiner is insufficient to allow the Board to make a fully informed decision as to the probative value of the opinion). See also Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). As a result, the Board finds a remand is warranted to correct a pre-decisional duty to assist error to afford the Veteran a new VA examination, with all appropriate diagnostic testing, in order to determine whether he has a functional impairment secondary to his diabetes mellitus type II, to include diabetic peripheral neuropathy. 5. Entitlement to service connection for erectile dysfunction, as secondary to diabetes mellitus type II is remanded. The Veteran asserts that his erectile dysfunction is caused or aggravated by his service-connected diabetes mellitus type 2 (diabetes). To that effect, the Veteran was afforded a VA examination in July 2021. The examiner opined that the Veteran's erectile dysfunction was less likely than not proximately due to or the result of his service-connected diabetes. He explained that he "has multiple etiologies for erectile dysfunction to include diabetes but [the] Veteran also has etiologies to include hypertension medication used [sic], history of current tobacco/ETOH/cannabis use, advancing age, psychologic diagnosis, BMI 27.9 (improving from 31), and hyperlipidemia (controlled with medication)." Therefore, the examiner concluded the Veteran's current erectile dysfunction was not proximately due to nor the result of his service-connected diabetes. The Board finds the July 2021 VA examination to be inadequate for adjudicative purposes and this reflects a pre-decisional duty to assist error which must be corrected. The July 2021 examiner focused solely on causation and neglected to provide an opinion regarding whether the Veteran's diabetes has aggravated the erectile dysfunction. A medical opinion that addresses only causation and not aggravation is inadequate to adjudicate a claim for service connection on a secondary theory of entitlement based on aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As such, a remand is required to obtain a medical opinion that adequately addresses both causation and aggravation for the Veteran's erectile dysfunction as outlined above to correct a pre-decisional duty to assist error. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to identify all diagnoses for his bilateral upper and lower extremity neuropathy symptoms, to include intermittent pain, numbness, and decreased touch sensation. (a.) The record should be reviewed by the examiner. All appropriate test and studies should be conducted, and the results reported in detail, specifically to include EMG testing. The report should include all subjective complaints and objective symptoms. (b.) If there are no diagnoses relating to the Veteran's bilateral upper and lower extremity neuropathy symptoms, the examiner should identify any functional impairment associated with the reported symptoms. (c.) For any diagnosis or functional impairment identified, the examiner should opine regarding whether any relevant findings of neuropathy in the bilateral upper and lower extremities are at least as likely as not proximately caused or aggravated by the Veteran's service-connected diabetes mellitus type II. With regard to the term "aggravated," as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). (d.) The clinician is asked to provide a rationale and to explain the reasons behind any opinions expressed and conclusions reached, and in doing so, special attention is invited to the Veteran's lay statements of record. 2. Obtain an addendum medical opinion from an appropriate clinician regarding the Veteran's claim seeking service connection for erectile dysfunction. The clinician is directed to review the claims folder. Whether a physical examination is necessary is left to the discretion of the clinician providing the opinion. After a thorough review of the claims file and examination (to the extent necessary), the examiner is asked to opine whether the Veteran's erectile dysfunction is at least as likely as not proximately caused or aggravated by the Veteran's service-connected diabetes mellitus type II. With regard to the term "aggravated," as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should review the entire claims file, including any relevant lay statements and medical evidence. A complete rationale should be provided for all offered opinions and conclusions reached. (Continued on the next page) 3. After the above development and any other development deemed necessary is completed, readjudicate the claims. RACHEL E. JENSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.