Citation Nr: 21012817 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-36 117 DATE: March 5, 2021 ORDER Entitlement to service connection for an eye disability is denied. Entitlement to service connection for a urinary tract disorder is granted. Entitlement to service connection for chronic fatigue syndrome is denied. Entitlement to service connection for a chronic pain disorder is denied. Entitlement to an initial disability evaluation higher than 10 percent for erectile dysfunction is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s eye disability began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s urinary disability is secondary to his service-connected prostate cancer disability. 3. The preponderance of the evidence of record is against finding that the Veteran has had chronic fatigue syndrome at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had chronic pain disorder at any time during or approximate to the pendency of the claim. 5. Throughout the appeal period, the Veteran’s erectile dysfunction has not been manifested by penile deformity. CONCLUSIONS OF LAW 1. The criteria for service connection for an eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a urinary tract disorder as secondary to service-connected prostate cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for chronic pain disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for a compensable disability rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from October 1964 to October 1968. He is receipt of the Combat Action Badge. These matters come before the Board of Veterans’ Appeals (Board) from an April 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Although requesting a hearing in December 2019, the Veteran withdrew his request in June 2020. Service Connection 1. Entitlement to service connection for an eye disability The Veteran contends that his eye disability is related to a facial injury and smoke exposure from a hand-held rocket while serving as an anti-tank crewman during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The evidence shows that the Veteran has a current diagnosis of dermatochalasis, dry eye syndrome, and cataracts, and evidence shows trauma to the Veteran’s face in February 1966. During service, he was getting out of a truck and his nose was hit by a rocket. Despite this, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of his eyes began during service or is otherwise related to an in-service injury, event, or disease. The March 2017 VA examination shows that the Veteran was diagnosed with dermatochalasis in 2017, dry eye syndrome in 2004 and cataracts in 2002. The Veteran was not diagnosed with these disabilities until three to four decades after his separation from service. While the Veteran is competent to report having experienced symptoms of glare in sunlight, trouble opening his eyes wide enough and near constant dryness, that had been “going on for some time,” he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his medically diagnosed disabilities. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the March 2017 examiner opined that the Veteran’s diagnoses are not at least as likely as not related to an in-service injury, event, or disease, including trauma to his nose during service or exposure to smoke during service. The examiner explained that dermatochalasis is a condition where there is excess skin in the eyelid that is caused by a loss of elasticity in the connective tissue supporting the eyelid. Dermatochalasis commonly affect the elderly and progresses with age. The examiner noted that the Veteran had only recently developed this condition, and therefore it is less likely than not related to his history of trauma and more likely than not related to his age. Dry Eye Syndrome is a multifactorial disease of the tears and ocular surface and becomes more common with age. The Veteran developed Dry Eye Syndrome in 2004. The examiner found that the Veteran’s Dry Eye Syndrome is likely as a result of age and or acute environmental factors. Cataracts are common in patients over 60 years old. According to the Wilmer Eye Institute, most cataracts are age related and affect more than half of all Americans older than 65 to some degree. Therefore, the examiner opined that it was less likely than not that his cataracts are due to the facial injury and/or smoke exposure from handheld rockets while serving as an anti-tank crewman during service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his eye disabilities are related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2017 examiner’s opinion. 2. Entitlement to service connection for a urinary tract disorder The Veteran contends that his urinary tract disability is due an in-service diagnosis of a sexually transmitted disease (STD). The March 2017 VA examination shows that the Veteran has a current diagnosis of low urinary tract symptoms/dysfunction, and the examiner opined that it was not at least as likely as not due to a STD during service, but instead it was likely as not secondary to radical prostatectomy for his service-connected prostate cancer. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current low urinary tract symptoms is proximately due to his service-connected prostate cancer. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for low urinary tract symptoms is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board acknowledges that the symptoms of the Veteran’s urinary tract disorder and his residuals of prostate cancer overlap. Despite this, the Board finds that the urinary tract disorder has been referred to as urinary dysfunction and is considered a separate diagnosis. Despite this, the RO will determine the rating of the urinary tract disorder and will consider whether a separate rating for the urinary tract disorder would be considered pyramiding. 3. Entitlement to service connection for chronic fatigue syndrome 4. Entitlement to service connection for a chronic pain disorder The Veteran contends that he has a diagnosis of chronic pain disorder and chronic fatigue syndrome. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of chronic fatigue syndrome or chronic pain disorder and has not had diagnoses for these disabilities at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The March 2017 VA examiner evaluated the Veteran and determined that the Veteran did not have a diagnosis of chronic pain disorder or non-degenerative arthritis. Several March 2017 VA examinations instead show that the Veteran has diagnoses of osteoarthritis in his shoulders, traumatic arthritis in both knees, and degenerative arthritis of the spine. The March 2017 VA examiner also concluded that the Veteran did not have a diagnosis of chronic fatigue syndrome. Further, despite consistent treatment from 2016 to 2020, VA treatment records do not contain a diagnosis of chronic pain disorder or chronic fatigue syndrome. While the Veteran believes he has a current diagnosis of chronic fatigue syndrome and chronic pain disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Increased Rating Claim 5. Entitlement to an initial disability evaluation higher than 10 percent for erectile dysfunction The Veteran is seeking a compensable disability rating for his service-connected erectile dysfunction. Specifically, the Veteran contends that his erectile dysfunction is more severe than reflected by his currently assigned rating. The Veteran is currently in receipt of special monthly compensation under 38 U.S.C. § 1114 (k) due to loss of use of a creative organ. The Veteran’s erectile dysfunction is evaluated by analogy under Diagnostic Code 7522. Under Diagnostic Code 7522, a 20 percent disability rating is warranted for deformity of the penis with loss of erectile power. This is the only schedular rating provided under this diagnostic code. The adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b (2017). In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Therefore, for a compensable disability rating to be assigned, the medical evidence must establish deformity of the penis with loss of erectile power. Review of the relevant evidence of record undisputedly shows that the Veteran has loss of erectile power; however, the evidence does not reveal any complaints, treatments, or findings of penile deformity. The VA examination report and Veteran’s own statements are absent of any indications of penile deformity. The Veteran was afforded a VA examination in March 2017 for his erectile dysfunction. Although not examined per the Veteran’s request, the Veteran reported normal anatomy with no penile deformity or abnormality. He also reported normal anatomy with no testicular deformity or abnormality and normal anatomy of epididymis with no deformity or abnormality. The VA examiner confirmed the diagnosis of erectile dysfunction. The Board has considered the Veteran’s statements regarding loss of erectile power and finds that the Veteran is competent to report observable symptoms he experiences through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, he has not alleged any physical deformity of the penis, as opposed to a functional deficiency of the penis. Further, no medical professional has identified any deformity of the penis, and the Veteran has not submitted any evidence to support a finding that there is any deformity of the penis. As a deformity of the penis in addition to loss of erectile power is necessary for a compensable disability rating, the preponderance of the evidence is against the claim for a compensable disability rating for erectile dysfunction. Therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a low back disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a left shoulder disability is remanded. 5. Entitlement to service connection for a left knee disability is remanded. The Veteran claims that his shoulders, knees and back were injured during service. Specifically, he reported launching rockets from his shoulder, carrying heavy loads and equipment weighing 125 pounds, falling during service, and having to do strenuous activities as anti-tank assaultman. He noted having to do landings while under fire, which meant jumping out of the plane or helicopter which he believes injured his knees. Although the Veteran has current diagnoses for the shoulders, knees and back, the examiner opined that it was less likely than that these shoulder, knee and back disabilities were related to the Veteran’s service. The examiner noted that the Veteran had no service treatment records or civilian medical document of chronic bilateral shoulder conditions, knee disabilities or a back disability during his period of service. The examiner further noted that there was no reported treatment for the disabilities until decades after service. Significantly, the Veteran is a recipient of a Combat Action Badge. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(d). The evidence shows that the Veteran engaged in combat. Therefore, the Veteran’s statements establish the occurrence of the claimed in-service injuries noted above. In term of the absence of medical care since service, the Veteran reported during the March 2017 examination that he tried various over-the-counter remedies to include heating pads and pain medications. He reported that the pain has continued in his shoulders, knees and back since service. For these reasons, the Board finds that an addendum opinion is needed that considers the Veteran’s statements regarding injuries he experienced during service and whether his current disabilities are related to those injuries. 6. Entitlement to service connection for a gastroesophageal reflux disease (GERD) is remanded. The Veteran has a current diagnosis of GERD. The Veteran believes his GERD is related to service or, in the alternative, due to his service-connected posttraumatic stress disorder. A March 2017 examiner opined that the Veteran’s GERD was less likely than not related to service. The examiner then listed various causes of GERD but not explain why the Veteran’s GERD was not related to service. The examiner also opined that it was less likely than not that the Veteran’s GERD was secondary to his PTSD. She noted that PTSD is not a medically recognized cause of GERD but provided no further explanation. The examiner also opined that the Veteran’s GERD was not aggravated by his service-connected PTSD but did not provide a rationale. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s shoulders, knees and back disability are at least as likely as not related to the Veteran’s military service. The examiner’s attention is directed to the Veteran’s statements that he launched rockets from his shoulder, carried heavy loads and equipment weighing 125 pounds, fell during service, and did strenuous activities as anti-tank assaultman. He noted having to do landings while under fire, which meant jumping out of the plane or helicopter which he believes injured his knees. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s GERD is at least as likely as not related to his military service. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s GERD is at least as likely as not proximately due to his service-connected PTSD or aggravated beyond its natural progression by his service-connected PTSD. 3. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.