Citation Nr: 21010989 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 11-15 082 DATE: February 26, 2021 ORDER Service connection for a gallbladder disability is denied. REMANDED Service connection for erectile dysfunction is remanded. Service connection for a bilateral eye disability is remanded. FINDING OF FACT The Veteran has not had cholecystitis, gallstones or any other gallbladder disability during the pendency of his claim. CONCLUSION OF LAW The criteria for service connection for a gallbladder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to May 1968. This case returns to the Board of Veterans’ Appeals (Board) after a remand to the agency of original jurisdiction (AOJ) in April 2018. On remand, the AOJ granted service connection for hypertension and peripheral neuropathy of the bilateral upper and lower extremities. These issues are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection for a Gallbladder Disability The Veteran contends that his service-connected diabetes mellitus caused or aggravated cholecystitis. Because the record does not show that he has had cholecystitis or any other type of gallbladder disability during the pendency of the claim, service connection must be denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). In the absence of proof of a current disability, there can be no valid claim for service connection. Degmetich v. Brown, 104 F. 3d 1328,1333 (1997). A disability that resolves, or becomes asymptomatic, during the pendency of a claim may still be subject to service connection. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, a disability diagnosed prior to the filing of a claim must be shown to be present at some point during the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Here, the Veteran filed his claim for service connection for diabetes, cholecystitis, and other disabilities in April 2007. In April 2018, the Board granted service connection for diabetes, and remanded for a VA examination to determine the nature and etiology of any diagnosed gallbladder disability. The Board noted that VA treatment records suggested a diagnosis of “possible” gallstones. A VA contractor examined the Veteran in July 2019. During the examination, the Veteran reported that he was hospitalized for a gallbladder attack at some point between 1989 and 1993, and that he has not had any other attacks since then. Although he reported flatulence as a current symptom, he did not show any signs or symptoms of a gallbladder condition or residuals of treatment, such as gallbladder dyspepsia, attacks of gallbladder colic, cholecystectomy postoperative residuals, or jaundice. He denied any current treatment for a gallbladder condition. The 2019 examiner reviewed his medical records, noting that ultrasounds from October 2007 and April 2017 showed no gallstones, and a March 2016 CT scan showed no biliary dilatation. Based on these records, his reported history and examination, the examiner determined that the Veteran had one acute episode of cholecystitis in the past. In other words, there was no evidence of a current disability. The examiner’s report is highly probative, as is the Veteran’s own account of his past medical history. This evidence establishes that the claimed disability resolved approximately 14 years or more before the Veteran filed for service connection in 2007. Romanowsky, 26 Vet. App. at 294. The Board finds neither medical nor lay evidence to the contrary in the record. In sum, the preponderance of evidence is against finding that the Veteran has had cholecystitis, gallstones or any other gallbladder disability at any point during the pendency of his claim. As such, the benefit-of-the-doubt rule is not applicable in this instance. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal is denied. REASONS FOR REMAND Service Connection for Erectile Dysfunction The Veteran asserts his erectile dysfunction is also secondary to diabetes. Following the Board’s remand, the 2019 examiner determined that diabetes less likely than not proximately caused his erectile dysfunction. The examiner reasoned that he reportedly developed erectile dysfunction prior to his diabetes diagnosis in 2001, and that he has several other risk factors, including advancing age and obesity. The examiner also noted that “the diabetes did not decrease the erectile dysfunction and it is impossible to determine the exact damage it did.” At the same time, the examiner determined that it is possible to establish a baseline level of severity for the erectile dysfunction. She indicated that the current severity is not greater than the baseline, stating that “the evidence does not overwhelmingly indicate that [the current disability] is a natural progression of just the diabetes mellitus.” The Board finds the examiner’s opinion inadequate because it does not address the Veteran’s contention that his erectile dysfunction worsened after 2001, as he testified at an AOJ hearing in March 2012. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (VA medical opinions on secondary service connection must sufficiently address both causation and aggravation); Transcript at 12. Additionally, it is unclear how the examiner found it “impossible to determine the exact damage [diabetes] did,” but at the same time possible to determine that the current level of erectile dysfunction was no greater than the baseline. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (medical opinions are adequate when they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion). Another remand for an addendum opinion is therefore warranted. Service Connection for a Bilateral Eye Disability The Veteran likewise attributes a bilateral eye disability (claimed as diabetic retinopathy) to diabetes. The Board previously remanded for an examination, noting that various VA treatment records show a diagnosis of bilateral cataracts. See also VA Ophthalmology Reports from May 2011, April 2017 & July 2018. In July 2019, a VA contractor found no evidence of diabetic eye disease upon examination, and wrote “no diagnosis of an eye condition confirmed.” Because the examiner did not provide an opinion on whether the Veteran’s VA-diagnosed cataracts are proximately due to or aggravated by his service-connected disability, remand for an addendum opinion is warranted. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain addendum opinions on the etiology of the Veteran’s erectile dysfunction and bilateral cataracts. The examiner must address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction is proximately due to his service-connected diabetes mellitus? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction is aggravated beyond its natural clinical course by his service-connected diabetes mellitus? In particular, the examiner’s opinion must reflect consideration of the Veteran’s March 2012 testimony that his erectile dysfunction worsened after 2001. (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral cataracts are proximately due to his service-connected diabetes mellitus? (d.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral cataracts are aggravated beyond their natural clinical course by his service-connected diabetes mellitus? 2. Review the medical opinions above to ensure substantial compliance with the Board’s directives. Take any necessary corrective action. 3. Readjudicate the Veteran’s claims. If any claim remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.