Citation Nr: 21016213 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 15-35 870 DATE: March 22, 2021 ORDER Entitlement to service connection for erectile dysfunction, including secondary to service-connected acquired psychiatric disorder, is denied. Entitlement to service connection for hypertension, including secondary to service-connected acquired psychiatric disorder, is denied. Entitlement to service connection for coronary artery disease, including secondary to service-connected acquired psychiatric disorder, is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), including secondary to service-connected disabilities, is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine is remanded. Entitlement to an evaluation in excess of 20 percent for bilateral flat feet, hammer toes, hallux valgus and degenerative joint disease of the right great toe is remanded. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the left knee is remanded. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that erectile dysfunction began during active service or is otherwise related to an in-service injury or disease, or was secondary to the Veteran’s service-connected acquired psychiatric disorder. 2. The Veteran’s hypertension was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service injury or disease and was not secondary to his service-connected acquired psychiatric disorder. 3. The Veteran’s coronary artery disease was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service injury or disease and was not secondary to his service-connected acquired psychiatric disorder. 4. The preponderance of the evidence is against finding that GERD began during active service or is otherwise related to an in-service injury or disease, or was secondary to the Veteran’s service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction, including secondary to service-connected acquired psychiatric disorder, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for hypertension, including secondary to service-connected acquired psychiatric disorder, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for coronary artery disease, including secondary to service-connected acquired psychiatric disorder, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for GERD, including secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1965 to October 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded this matter for additional evidentiary and procedural development. In accordance with the Board’s remand, the RO requested and obtained additional treatment records, scheduled the Veteran for VA examinations for the purpose of obtaining medical opinions in support of his service connection claims, and readjudicated all of the issues on appeal, including consideration of all evidence obtained since the February 2016 Supplemental Statement of the Case. The Board finds these actions to be in substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). In September 2020, the RO issued a rating decision granting entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities, effective May 16, 2104. This is a full grant of this issue, and the TDIU claim is no longer on appeal. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and hypertension or coronary artery disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for erectile dysfunction, including secondary to service-connected acquired psychiatric disorder. The Veteran contends that his erectile dysfunction is due to his military service. Alternatively, he attributes this condition to his service-connected acquired psychiatric disorder. In January 2019, the Board remanded this matter, in pertinent part, to obtain a medical opinion addressing whether the Veteran’s erectile dysfunction was proximately caused by or aggravated beyond its normal progression by his service-connected acquired psychiatric disability. Although scheduled for the appropriate medical examination in January 2020, the Veteran failed to report for the examination. The RO’s September 2020 Supplement Statement of the Case referenced the Veteran’s failure to report for the scheduled examination. It also notified him that evidence from the examination might have been material to the outcome of the Veteran’s claim, and that he failed show good cause for his failure to report. Thereafter, he did not submit any good cause for having failed to attend the examination, nor did he request that the examination be rescheduled. Having not shown good cause for failing to attend the examination, and having not requested that the examination be rescheduled, this decision is based on the evidence of record. 38 C.F.R. § 3.655. Initially, the Board finds that there is no evidence of erectile dysfunction in-service, or for more than three decades thereafter. Accordingly, service connection for erectile dysfunction on a direct basis must be denied. The remaining question for the Board is whether the Veteran’s current erectile dysfunction is proximately due to or the result of, or was aggravated beyond its natural progress by his service-connected acquired psychiatric disorder. The Board concludes that, while the Veteran currently has erectile dysfunction, the preponderance of the evidence is against finding that this condition is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The available service and post service treatment reports do not support any causative link between the Veteran’s erectile dysfunction and his military service or his service-connected acquired psychiatric disorder. As noted above, complaints of or treatment for erectile dysfunction are not shown for more than three decades after the Veteran’s discharge from service. The Veteran’s post service treatment reports also silent as to any etiological relationship between the Veteran’s military service or his service-connected acquired psychiatric disorder and his erectile dysfunction. To the contrary, a February 2014 VA treatment report noted that the Veteran had erectile dysfunction associated with diabetes mellitus, type II, which is a nonservice-connected condition. While the Veteran is competent to report symptomatology related to this condition, he has not claimed that it has been present since his military service. Moreover, he is not competent to provide a nexus opinion regarding the causation of his erectile dysfunction. Determining the cause of his erectile dysfunction is medically complex, as it requires knowledge of anatomical relationships and pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training 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). Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for erectile dysfunction. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for hypertension, including secondary to service-connected acquired psychiatric disorder. 3. Entitlement to service connection for coronary artery disease, including secondary to service-connected acquired psychiatric disorder. The Veteran asserts that his hypertension and coronary artery disease are related to his military service. Alternatively, he contends that these conditions are related to his acquired psychiatric disorder. The Veteran has current diagnoses of hypertension and coronary artery disease as evidenced by his VA treatment reports and examinations. Hypertension and coronary artery disease are enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, these disabilities were not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and were not noted in service with attributable continuity of symptomatology. VA treatment records show that the Veteran was not diagnosed with hypertension or coronary artery disease for more than twenty-five years after service and decades outside of the applicable presumptive period. A March 1996 VA treatment report noted a diagnosis of hypertension. A November 1996 VA hospitalization report noted diagnoses of hypertension, myocardial infarction, and coronary artery disease. A December 1997 VA examination for heart and hypertension noted the Veteran’s history of hypertension beginning five years earlier. The Veteran has not alleged having ongoing chest pain, shortness of breath, or any other ongoing symptomatology related to his hypertension and/or coronary artery disease since the presumptive period ended over twenty-five years ago. Moreover, he is not competent to provide a diagnosis in this case or determine that any such symptoms were manifestations of hypertension or coronary artery disease as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and pathology. Jandreau, 492 F.3d at 1377. In January 2019, the Board remanded this matter, in pertinent part, to obtain a medical opinion addressing whether the Veteran’s hypertension and/or coronary artery disease were proximately caused or aggravated by his service-connected acquired psychiatric disability. Although scheduled for the appropriate medical examination in January 2020, the Veteran failed to report for the examination. Having not shown good cause for failing to attend the examination, and having not requested that the examination be rescheduled, this decision is based on the evidence of record. 38 C.F.R. § 3.655. The Board gives more probative weight to competent medical evidence, which establishes that the Veteran’s hypertension and coronary artery disease began decades after his separation from military service. The available service and post service treatment reports do not support any causative link between the Veteran’s hypertension and coronary artery disease and his military service. Finally, there is no competent evidence suggesting a link between either of these conditions and the Veteran’s service-connected acquired psychiatric disorder. Accordingly, the preponderance of the evidence is against the Veteran's claims for service connection for hypertension and coronary artery disease. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. 4. Entitlement to service connection for GERD, including secondary to service-connected disabilities. The Veteran contends that he has GERD, claimed as a stomach and gastrointestinal disability, due to his military service. Alternatively, he attributes this condition to medications he is taking for his service-connected disabilities. As noted above, the Veteran failed to attend a January 2020 VA examination which was to address, in pertinent part, whether his current GERD was proximately caused or aggravated by his service-connected acquired psychiatric disability. Having not shown good cause for failing to attend the examination, and having not requested that the examination be rescheduled, this decision is based on the evidence of record. 38 C.F.R. § 3.655. Initially, the Board finds that there is no evidence of GERD in-service, or for more than three decades thereafter. A November 1996 VA treatment report noted that a review of the Veteran’s gastrointestinal history revealed no significant symptoms or history. A November 2001 VA treatment report noted the Veteran’s complaints of occasional indigestion. A July 2003 VA treatment report noted a diagnosis of GERD. Accordingly, service connection for GERD on a direct basis must be denied. The remaining question for the Board is whether the Veteran’s current GERD is proximately due to or the result of, or was aggravated beyond its natural progress by his service-connected disabilities. The Board concludes that, while the Veteran currently has GERD, the preponderance of the evidence is against finding that this condition is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected disabilities. A September 2015 VA examination for esophageal conditions noted a diagnosis of GERD, for which the Veteran was taking omeprazole on a daily basis. The September 2015 VA examiner opined that the Veteran’s GERD was less likely than not proximately due to, the result of, or aggravated beyond its natural progression by his service-connected bilateral feet, degenerative disc disease of the lumbar spine, radiculopathy, degenerative joint disease of the bilateral knees, hearing loss, and tinnitus. In rendering this opinion, the examiner considered the evidence of record, including the Veteran’s statements. The VA examiner also physically examined the Veteran and supported the opinion provided with a sufficient rationale. Specifically, the VA examiner noted the Veteran’s high-risk factors for developing GERD, the most important of which was his drinking two to three cups of coffee a day. The VA examiner also noted that a review of medical literature did not suggest a demonstratable link between the Veteran’s GERD and his service-connected disabilities. The VA examiner in January 2016 opined that the Veteran’s GERD was not caused by or proximately due to mediations taken by the Veteran for his service-connected disabilities. In rendering this opinion, the examiner considered the evidence of record, including the Veteran’s statements and his recent physical examination, prior to forming this opinion. The VA examiner noted that the Veteran has many risk factors for developing GERD, and that the medications he was taking for his service-connected disabilities are not shown to be related to GERD. The Veteran’s post service treatment reports are silent as to any etiological relationship between his GERD and his military service or his service-connected disabilities. While the Veteran is competent to report symptomatology related to this condition, he has not claimed that his GERD has been present since his military service. Moreover, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau, 492 F.3d at 1377; see also Kahana, 24. Vet. App. at 428. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for GERD. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine. 2. Entitlement to an evaluation in excess of 20 percent for bilateral flat feet, hammer toes deformity, hallux valgus and degenerative joint disease of the right great toe. 3. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the left knee. 4. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee. VA examinations for the above-cited disabilities were most recently conducted in January 2018. Subsequent VA treatment reports include allegations that each of these conditions have since worsened. Under these circumstances, the RO should obtain updated treatment records and schedule the Veteran for updated VA examinations. The Board notes that regulations used in evaluating musculoskeletal system and muscle injuries have recently been amended. These amendments should be considered in readjudicating these issues. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5243, 5257). The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed disabilities since August 2020. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative disc disease of the lumbar spine; degenerative joint disease of the left knee; degenerative joint disease of the right knee; and bilateral flat feet, hammer toes deformity, hallux valgus and degenerative joint disease of the right great toe. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating each disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Following the above, the RO should readjudicate the issues remaining on appeal, with consideration as appropriate of recent amendments to the regulations used in evaluating musculoskeletal system and muscle injuries. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5243, 5257). If any benefit sought is not granted, the appellant and his representative are to be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.