Citation Nr: 21006500 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-01 509 DATE: February 4, 2021 ORDER Entitlement to service connection for diabetes mellitus (diabetes) is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for erectile dysfunction (ED) is denied. REMANDED Entitlement to service connection for a seizure disorder is remanded. FINDINGS OF FACT 1. Diabetes was not manifested in service, or within one year of separation, and is not attributable to service. 2. Diabetes is unrelated (causation or aggravation) to a service-connected disease or injury. 3. A low back disorder did not manifest in service and is not attributable to service. 4. A low back disorder is unrelated (causation or aggravation) to a service-connected disease or injury. 5. Hypertension did not manifest in service, or within one year of separation, and is not attributable to service. 6. Hypertension is unrelated (causation or aggravation) to a service-connected disease or injury. 7. ED did not manifest in service and is not attributable to service. 8. ED is unrelated (causation or aggravation) to a service-connected disease or injury. CONCLUSIONS OF LAW 1. Diabetes was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. Diabetes is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 3. A low back disorder was not incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 4. A low back disorder is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 5. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 6. Hypertension is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 7. ED was not incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 8. ED is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to June 1980. The Veteran appeared at a Board hearing; a transcript is of record. With respect to the Board hearing in January 2018, the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). 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. See 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In addition to direct service connection, secondary service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). 1. Diabetes At the Board hearing, the Veteran contends his diabetes is secondary to his service-connected knee disabilities and other lower extremity disabilities (the Veteran is service-connected for total left knee replacement with surgical scars, bilateral pes planus with plantar fasciitis and osteophyte, painful right and left knee surgical scars, right knee injury with instability status post arthroscopic surgery with meniscectomy with surgical scars, degenerative joint disease left knee with scar, several right hip degenerative joint disease disabilities (limitation of flexion, instability, and limitation of extension), and right knee degenerative joint disease status post arthroscopic surgery with meniscectomy. He contends these disabilities caused him to limit his activities and, as a result, gain weight. The excess weight in turn caused diabetes. When the Veteran established care with VA facility in November 2010, he reported a 25-year history of diabetes (i.e., back to around 1985). He confirmed this again at his Board hearing. Medical records dating back to 2001 confirms existing diabetes at that time. A VA opinion dated in June 2019 states, based on medical records review, it is less likely than not that the diabetes was incurred as a result of PTSD, hip, knee, or foot trouble. By history, the patient has had diabetes for over 25 years. The Veteran states he was first diagnosed after he complained of frequent urination in the 1980s. There are no medical records to show that the developed diabetes as a result of his depression or osteoarthritis, which has no pathologic relationship in terms of his diabetes. Also, of note, while obesity is a risk factor for diabetes, the Veteran is slightly overweight but not morbidly obese. The examiner reiterates that the Veteran’s diabetes cannot be aggravated by an orthopedic problem or arthritis because he is not obese. Diabetes is a group of metabolic disorders characterized by high blood sugar levels over a prolonged period. Diabetes is due to either pancreas not producing enough insulin or the cells of the body not responding properly to the insulin produced. Type 2 diabetes begins with insulin resistance, a condition in which cells fail to respond to insulin properly. The most common cause is a combination of excessive body weight and insufficient exercise. Again, based on the current weight and height which has been maintained, the Veteran is slightly overweight but not obese and therefore it is less likely than not that the diabetes is due to his arthritic conditions or a psychiatric disorder. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is not competent to report etiology in the absent of observable symptoms. While the Veteran believes inactivity caused his diabetes, such an opinion regarding etiology is not within the competency of a lay person. In contrast, the Board finds that the VA medical opinion to be more probative. The medical professional that provided the medical opinion is competent to provide an opinion on this matter. He determined that the Veteran was not obese and therefore weight was not a risk factor for the Veteran. The examiner had knowledge of the Veteran’s medical history and reviewed the examination of the Veteran and the other records and provided conclusions in medical documents based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA opinion. The Board has also considered other theories. Here, diabetes mellitus was not manifested during service or within one year of separation. In addition, he did not have the characteristic manifestations sufficient to identify the disease entity. Rather, during the separation examination in March 1980, the endocrine system was normal, and urinalysis was negative for sugar. In addition, there is no competent evidence of diabetes until many years post service. Currently, there is no acceptable evidence of diabetes during service or within one year of separation. There is no accepted proof that the remote onset of diabetes is otherwise related to service. For the reasons expressed above, the preponderance of the evidence is against the claim of entitlement to service connection for diabetes. 2. Low back As with diabetes, the Veteran attributes his back disorder to his lower extremity disorders. At the Board hearing, he reported he believed the pain he had in his lower back was caused by his hips, specifically that he had altered gait that caused his back problems. He also reported at his hearing, that the Veteran believed his physician stated there was connection between the low back disorder and his service-connected disorders. When the Veteran established care with a VA facility in November 2010, there was no report of any back problems. A private treatment record dated in August 2012 noted strain of the back and back pain due to being assaulted five days prior. He had been pushed and abruptly twisted his back. Mild pain the day of the incident, pain started increasing afterwards. The Veteran was given ibuprofen. Treatment records after this incident do not report any back symptoms, except for some reports of radiating pain from the hip. A VA examination dated in June 2019 reports that the Veteran did not have arthritis shown on imaging testing. The Veteran had limited range of motion on testing. The examiner reported that the Veteran had lumbosacral strain. He was seen for back pain in August 2012. Based on medical records review, it is less likely than not that the current back disorder was incurred as a result of his chronic hip, knee, or foot trouble. There are no medical records to show that the Veteran developed back pain as a result of his hip, knees, or foot disorders. There was one entry in August 2012 where the Veteran was seen for back pain after he was assaulted five days prior. He pushed and twisted his back abruptly. Diagnosed as strain of the back. After this there are no medical records to showing chronic back pain. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. The Veteran is not competent to report etiology in the absent of observable symptoms. The Veteran is competent to report pain and altered gait. He is not competent to give an opinion that altered gait caused his back disorder, such an opinion regarding etiology is not within the competency of a lay person. The Board has considered his reports that a medical professional told the Veteran that there was a connection between his service-connected disorders and his back. The Veteran is competent to report what he was told. However, given the other evidence of record (the report of injury to his back post-service), this opinion is not credible. In contrast, the Board finds that the VA medical opinion to be more probative. The medical professional that provided the medical opinion is competent to provide an opinion on this matter. He determined that the Veteran’s back disorder was reported as due to a post-service event and the medical evidence did not show any relationship to the service-connected disabilities. The examiner had knowledge of the Veteran’s medical history and reviewed the examination of the Veteran and the other records and provided conclusions in medical documents based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA opinion. The Board has also considered other theories. Here, a back disorder was not manifested during service. Rather, at separation in March 1980, the spine was normal. In addition, there is no competent evidence of a back disorder until many years post service. Currently, there is no acceptable evidence of a back disorder during service. There is no accepted proof that the remote onset of a back disorder is otherwise related to service. For the reasons expressed above, the preponderance of the evidence is against the claim of entitlement to service connection for a back disorder. 3 & 4. Hypertension and erectile dysfunction The Veteran contends hypertension and ED are due to diabetes. During the hearing, the Veteran reported his doctor told him ED is due to both diabetes and high blood pressure. A VA examination report dated in June 2019 also confirmed diabetes caused ED. As his Board hearing, the Veteran reported he had hypertension in the mid-1990s. Impotency is first noted on a VA treatment record dated in November 2010 VA opinions dated in June 2019 addressed the Veteran’s contentions and any additional possible relationships to service-connected disorders. Both VA opinions note that, based on medical records review, it is less likely than not that the Veteran’s current hypertension or ED is aggravated by his PTSD, depression, or diabetes. There are no medical records to show that the Veteran’s high blood pressure was aggravated. In fact, his blood pressure is well controlled with medication and therefore it is less likely than not that the Veteran’s current blood pressure condition was aggravated beyond its natural progression by his diabetes or PTSD/depression. It is at least as likely as not that ED is caused by either his diabetes, which is poorly controlled, or hypertension. As noted on his medical records, the diabetes is not controlled. Based on these, it is at least as likely as not that the poorly controlled diabetes has caused him to develop ED which was first mentioned on medical records in 2015. (The Board notes the examiner is incorrect in what year in the 2010s ED or impotency was first noted. However, this is not relevant to the rationale of the opinion, which is that the Veteran’s ED is due to a non-service-connected disorder). As diabetes is not service-connected, service connection for ED and hypertension cannot be granted as secondary to diabetes. As hypertension is not service connected, the Veteran cannot be granted for ED as due to hypertension. The Board has also considered other theories. For hypertension, there is no evidence that hypertension was manifested during service or within one year of separation. In addition, the Veteran did not have the characteristic manifestations sufficient to identify the disease entity. Rather, at separation in March 1980, the heart, vascular system, and blood pressure (120/80) were clinically normal. The Veteran had a chest X-ray at separation, which did show a mildly enlarged heart (noted as cardiomegaly). However, there is no evidence or argument that an enlarged heart caused hypertension. For ED, there is no evidence that ED manifested during service. Rather, at separation, the genitourinary system was normal. In addition, there is no evidence of ED or hypertension until multiple decades after service. There is no evidence that ED or hypertension are otherwise due to service. For the reasons expressed above, the preponderance of the evidence is against the claim of entitlement to service connection for ED or hypertension and both the claims must be denied. REASONS FOR REMAND 1. Seizure disorder At the Veteran’s Board hearing, it was contended that the seizure disorder was due to an acquired psychiatric disorder and on remand an opinion was obtained with regards to that theory. However, the Veteran’s VA treatment records indicate a possible direct relationship. For example, an April 2012 VA neurology note reports that the Veteran had a history of epilepsy dating back to his 20s, but he did not realize he had a disorder until his 30s when he received treatment. (The Veteran was in his early 20s when he separated from service.) He was seizure free afterwards until around 2008. The earliest VA treatment records dating back to 2001 note a history of a seizure disorder. An opinion should be obtained on the matter of direct service connection. The matters are REMANDED for the following action: 1. Schedule a VA examination for the Veteran to determine whether the Veteran’s current seizure disorder is at least as likely as not related to service. Provide a complete rationale to support all opinion(s). The Veteran reported onset of seizure/epilepsy symptoms in his 20s, the examiner should clarify from the Veteran when these symptoms occurred. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.