Citation Nr: 21009615 Decision Date: 02/23/21 Archive Date: 02/22/21 DOCKET NO. 15-05 395 DATE: February 23, 2021 ORDER Entitlement to service connection for a thoracic strain, claimed as upper back pain is granted. Entitlement to service connection for infectious mononucleosis is denied. Entitlement to service connection for ulcers is denied. Entitlement to service connection for pleural effusion/pneumothorax is denied. Entitlement to service connection for erectile dysfunction (ED) is denied. REMANDED Entitlement to service connection for a respiratory disorder, to include bronchitis and upper respiratory infections is remanded. Entitlement to an initial evaluation in excess of 10 percent for a lumbar strain is remanded. INTRODUCTION The Veteran had active duty service with the United States Army from October 2009 to March 2012. When this case was previously before the Board in June 2018 the above-noted claims were remanded for additional development. The case has since been returned for further appellate review. FINDINGS OF FACT 1. The Veteran’s thoracic strain is etiologically related to his active service. 2. There is no evidence of a current disability or residual functional impairment associated with the Veteran’s in-service infectious mononucleosis illness. 3. There is no evidence of a current disability or residual functional impairment associated with the Veteran’s in-service gastric ulcer. 4. A pleural effusion/pneumothorax disability has not been present at any time during the pendency of this claim. 5. An erectile dysfunction disability has not been present at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a thoracic strain have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for service connection for infectious mononucleosis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 3. The criteria for service connection for ulcers have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 4. The criteria for service connection for pleural effusion/pneumothorax have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 5. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2020), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board finds VA has complied with its duty to assist the Veteran in the development of his claims. In this respect, all available service treatment records (STRs) and post-service medical evidence identified by the Veteran have been obtained. The Veteran was afforded an opportunity for a hearing before a Decision Review Officer or before the Board, but declined to do so. Further, the Veteran was afforded appropriate VA examinations to address his claimed upper back, infectious mononucleosis, ulcer, pleural effusions/pneumothorax, and ED in December 2018. Neither the Veteran nor his representative have identified any outstanding, existing evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the claims decided herein. Accordingly, the Board will address the merits of the Veteran’s claims. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (2012); 38 C.F.R. § 3.102 (2020); 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), citing Gilbert, 1 Vet. App. at 54. Legal Criteria-Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability...in the absence of a proof of present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thoracic Spine Claim The Veteran seeks service connection for an upper back disability, which he contends originated in service. The medical evidence confirms the Veteran currently has a chronic thoracic strain. The central issue that must be resolved at this time is whether the Veteran’s current disability originated during service or is otherwise related to service. The Veteran’s service treatment records (STRs) chronicle his in-service reports of upper back pain. Next, the Board observes that the Veteran underwent a VA examination to assess his claimed upper back pain in December 2018. At that time he was diagnosed with a thoracic sprain. The examiner noted the Veteran’s reports of upper back pain in service and indicated his post-service chiropractic visits support an ongoing disability. The examiner concluded the Veteran’s current thoracolumbar strain was at least as likely as not incurred in service. In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran’s upper back pain in service and his currently diagnosed thoracic strain is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his upper back disability. Infectious Mononucleosis, Ulcer, Pleural Effusions/Pneumothorax, and Erectile Dysfunction Claims The Veteran asserts that service connection is also warranted for infectious mononucleosis, an ulcer, pleural effusions/pneumothorax, and ED. At the outset, the Board notes the cornerstone of any VA disability compensation claim is the presence of a currently diagnosed disability. Throughout the period of the claim, the Veteran has received outpatient treatment at the Phoenix VAMC. The Board has carefully reviewed these records, but has not found a single instance in which the Veteran was diagnosed or treated for the above-noted conditions. In addition, the Board has scrupulously reviewed the Veteran’s December 2018 VA infectious disease, stomach conditions, respiratory conditions, and male reproductive conditions examination reports. These reports show the Veteran reported experiencing an infectious mononucleosis infection in basic training, which was treated without ongoing residual impairments. The Veteran also reported, and his STRs show, an ongoing bleeding gastric ulcer in service, which was finally resolved in 2011 prior to his discharge therefrom. The examiner noted the Veteran underwent an upper endoscopy procedure in March 2013, with no evidence of a gastric ulcer at that time. Further, in the course of the above-noted examinations the Veteran reported he developed sexual problems after service, which he attributed to work and family exertions. The Veteran specifically denied ever having his hormones checked or being medically assessed for ED. Additionally, the examiner reviewed chest radiographs performed in December 2009, January 2012, and August and September 2013. Each of these scans expressly found no evidence of pleural effusions or pneumothorax. Following comprehensive examinations and consideration of the Veteran’s medical history, the examiner found no pathology to render a diagnosis of infectious mononucleosis, a gastric ulcer, pleural effusions/pneumothorax, or ED. In sum, the Board finds the preponderance of the evidence indicates the Veteran has not satisfied the criteria necessary to establish a current infectious mononucleosis, gastric ulcer, pleural effusions/pneumothorax, or ED disability at any time throughout the pendency of his claims. VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, the Board has carefully considered the Veteran’s reports. The Board acknowledges the Veteran’s implicit assertion that he does in fact have the claimed disabilities. The Veteran is not, however, shown in this case to have the training, medical expertise, or credentials to competently diagnose the claimed conditions. See King v. Shinseki, 700 F.3d 1339 (2012). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). For example, a veteran is competent to state that he experiences symptoms that may be associated with a disability, such as stomach pain or trouble breathing, but he is not competent to diagnose himself with a gastrointestinal or respiratory disability. As discussed above, the overwhelming evidence fails to show infectious mononucleosis, gastric ulcer, pleural effusions/pneumothorax, or ED disabilities have been present during the period of the claims. Therefore, the claims must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is significantly against the claims. REASONS FOR REMAND Bronchitis/URI Claim Initially, the Board notes the Veteran’s STRs show he was treated for upper respiratory infections and bronchitis in service. During a December 2018 VA examination, the examiner diagnosed the Veteran with acute URI/bronchitis. The examiner explained this was not a chronic disability; however, the examiner did acknowledge the Veteran continues to experience upper respiratory infections. The examiner failed to explain why the Veteran’s ongoing respiratory infections could not be considered a chronic disability, which intermittently experiences flare-ups. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing insufficiencies, the Board finds a new examination and medical opinion is warranted. Increased Rating for Thoracolumbar Spine Disability Claim Next, the Board notes the Veteran most recently underwent a VA back examination to assess his thoracolumbar spine disability in December 2018. However, the examiner failed to provide non-weight bearing or passive range of motion assessments. To be considered adequate, a musculoskeletal examination must include an assessment of the veteran’s flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). As such, a remand is again required as the December 2018 VA examiner failed to provide these critical evaluation assessments. Accordingly, these matters are REMANDED for the following actions: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected thoracolumbar spine disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 2. Also, afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran’s claimed upper respiratory infection or bronchitis disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran’s upper respiratory infection or bronchitis at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. The examiner must provide a complete rationale for all opinions offered. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements regarding the onset and nature of his upper respiratory infections or bronchitis. The examiner is specifically asked to comment on whether the Veteran’s claimed disability could be considered a chronic disability, though not persistently present. If the examiner is unable to provide any requested opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.