Citation Nr: 21021827 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-06 389A DATE: April 14, 2021 ORDER Entitlement to service connection for a back disorder is denied. Entitlement to service connection for right lower extremity radiculopathy is denied. Entitlement to service connection for left lower extremity radiculopathy is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to an initial rating in excess of 30 percent for headaches is denied. FINDINGS OF FACT 1. A chronic back disorder was not shown in service and is not shown to be the result of an injury incurred or aggravated during a period of active duty or while in the line of duty during inactive duty for training (INACDUTRA) and was not aggravated by any service-connected disability. 2. Radiculopathy of the right lower extremity was not shown in service and is not shown to be the result of an injury incurred or aggravated during a period of active duty or while in the line of duty during INACDUTRA and was not aggravated by any service-connected disability. 3. Radiculopathy of the left lower extremity was not shown in service and is not shown to be the result of an injury incurred or aggravated during a period of active duty or while in the line of duty during INACDUTRA and was not aggravated by any service-connected disability. 4. A diagnosis of erectile dysfunction has not been established during the appeal period. 5. The Veteran has not had very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder are not met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.310. 2. The criteria for service connection for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for an initial rating in excess of 30 percent for headaches are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from June 1988 to June 1990, January to March 1991, and February 2003 to February 2004. He also served in the Army Reserve. The appeal originates from November 2013 and February 2015 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned in May 2019. The matter was remanded in March 2020 to obtain VA examinations with opinions, military personnel records, and service treatment records. Examinations with opinions for the back, erectile dysfunction, and headaches were obtained in July and December 2020 (a number of additional etiology opinions for the back were obtained in January 2021.) Service treatment records were requested in September 2020 and a response was received in October 2020 that all available records had been provided. The Veteran was notified that the treatment records were incomplete in October 2020 correspondence. As to military personnel records, they were requested and obtained in March 2020. There has been substantial compliance with the Remand directives. 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for right lower extremity radiculopathy. 3. Entitlement to service connection for left lower extremity radiculopathy. 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 Veteran does not contend, nor does the record suggest, that a back disorder or neurological disorder of the lower extremities had their initial onset during a period of active service or within a year of his discharge from service (38 C.F.R. §§ 3.307, 3.309(a)). There is similarly no evidence, lay or medical, that such disabilities are related to a period of active service. Rather, he maintains that his diagnosed degenerative disc disease, intervertebral syndrome, and vertebral fracture resulted from a February 2010 back injury during ACDUTRA. See May 2019 Hearing Transcript; July 2020 VA Examination. He asserts that his diagnosed right and left lower extremity radiculopathies are secondary to the back. Military personnel records establish that the February 2010 injury occurred, in fact, in the line of duty during INACDUTRA. Active service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C. § 101(22), (24); McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law “permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty”). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As referenced in the March 2020 Remand, there was evidence in the treatment records of historical back pain (in late 2001, 2004, and 2006) and an injury in June 2009. Military personnel records establish that these were not periods of active duty (AD) service or ACDUTRA and the records do not contain documentation of an injury in June 2009. Further, other than describing it as occurring “during active duty work,” the Veteran has not provided sufficient details to determine whether this injury (June 2009) was incurred in the line of duty. It is crucial to note that the Veteran’s report of being ACDUTRA is undermined by military personnel records. As such, the Board’s inquiry is limited to whether a back disorder resulted from the February 2010 injury in the line of duty during INACDUTRA. The July 2020 examiner opined that a back disorder is less likely as not related to the February 2010 injury. The examiner explained that there was no documentation available for review regarding evaluation or treatment for the injury. The examiner found that there was documentation of medical imaging in 2009 showing L5-S1 disc desiccation and mild bulge with multiple entries prior to the injury indicating chronic back pain and injuries not incurred in service. While not stated explicitly, the Board interprets this finding to mean that the Veteran had preexisting disabilities of the low back prior to the fall/injury that occurred in 2010. The examiner also noted that the Veteran had a recent fall which reportedly resulted in a vertebral fracture. The examiner determined that the evidence did not support that any current diagnosed back condition resulted from the February 2010 injury. In addition, the January 2021 examiner found no credible medical evidence to support that the Veteran’s diagnoses would be subject to aggravation beyond natural progression by an acute injury during a fall and that there was no pathological mechanism for such aggravation. Reference was made to supporting medical treatise. Though the examiner appears to have omitted a word in rendering this opinion and the others discussed below (“[t]here is pathological mechanism for aggravation...”), the other language of the opinions clarify that these were omissions rather than contradictory findings. Consideration is given to the Veteran’s medical opinion as a nurse that a back disorder is linked to the February 2010 injury. See May 2019 Hearing Transcript. Though he is a medical professional, he offered essentially no rationale for his opinion. By contrast, the VA opinions was based on review of the record and contained explanations. The Veteran’s opinion is afforded little weight and outweighed by the VA opinions. Turning to secondary service connection, the RO obtained nexus opinions addressing aggravation of a back disorder by the Veteran’s service-connected disabilities. It is unclear why this development was conducted as it was not requested by the Board or raised by the Veteran or the record. Regardless, the January 2021 examiner opined that a back disorder was less likely as not aggravated by any service-connected disability. The examiner determined that there was no credible medical evidence to support aggravation of a back disorder by the service-connected disabilities and that there was no pathological mechanism for aggravation. As to the right and left lower extremity radiculopathies, the July 2020 examination indicates that the Veteran has lower extremity radiculopathies from his back disability. However, as the Veteran does not have service connection for the claimed low back disability, service connection for the radiculopathies cannot be granted as secondary to the back disability as a matter of law. Sabonis v. Brown, 6 Vet. App. 430 (1994). The service connection claims for right and left lower extremity radiculopathies must be denied. 4. Entitlement to service connection for erectile dysfunction. The Veteran contends that he has erectile dysfunction due to medication from his service-connected psychiatric disability (major depressive disorder). See May 2019 Hearing Transcript. He has confirmed psychiatric diagnoses for which he uses medication for treatment. See April 2019 VA Examination. Though he reported having erectile problems, medical treatment records are silent for complaints, treatment, or diagnosis of an erectile disorder. The Veteran was afforded a VA examination in July 2020. He reported decreased libido and erectile problems around 2011, which was proximate to the time he began using psychiatric medication. He stated that he had not been evaluated or treated for the symptoms. The examiner determined that he did not have and had not been diagnosed with any condition of the male reproductive system. The examiner acknowledged the Veteran’s subjective symptoms related to a potential erectile disorder but noted that he had no evaluation to exclude pathological causes of difficulty achieving an erection. The examiner found no evidence of a diagnosis of erectile dysfunction in the record and could not confirm a diagnosis based on the examination findings. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement 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 if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The preponderance of the evidence fails to establish a clinical diagnosis of erectile dysfunction. The record contains no evidence of a diagnosed erectile disorder. Indeed, the Veteran himself concedes that he has not been evaluated or treated for such symptoms. The July 2020 examiner reviewed the record and considered the Veteran's lay statements and symptomology but was unable to make a diagnosis of erectile dysfunction based on the evidence. In the absence of evidence of a current disability, the claim must be denied. Consideration is given to the Veteran’s medical opinion as a nurse that he has erectile dysfunction as a result of his psychiatric medications. See May 2019 Hearing Transcript. Though he is a medical professional, he offered little rationale for his opinion. The undersigned inquired, “[I]t’s with your own medical experience and understanding of medications [that] . . . the medications that you take for your psychiatric disorder . . . have caused or contributed to the development of your [erectile dysfunction]?” to which the Veteran responded, “Yes, sir.” No explanation was offered as to how the Veteran rendered a self-diagnosis. By contrast, the July 2020 examiner’s opinion was based on review of the record, physical examination, and an interview with the Veteran, with a detailed explanation as to how a diagnosis was not supported. The Veteran’s opinion is afforded little weight and outweighed by the July 2020 examination with opinion. 5. Entitlement to an initial rating in excess of 30 percent for headaches. Disability ratings are determined by comparing a veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Migraine headaches are rated pursuant to 38C.F.R. §4.124a , Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38C.F.R. §§4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” See Holmes v. Wilkie, __ Vet. App. __, No. 19-2495, slip op.6 (Nov. 25, 2020). Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. Id. The criteria for migraine headaches under DC 8100 contemplate all manifestations of that condition, including non-headache symptoms such as dizziness, mood swings, sleep impairment, and nausea. Id. The rating of headaches or migraines under DC 8100 focuses on “attacks.” It is the frequency, duration, severity, and economic impact of these attacks that differentiate the levels of disability in DC 8100. Id. All symptoms experienced as a result of migraine attacks should be considered and rated based on the frequency, severity, and economic impact of the attacks. The 50 percent rating criteria contain several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Based on the evidence, the Veteran is not entitled to an initial rating in excess of 30 percent for headaches. He has not had very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability. Despite reporting incapacitating headaches several times a month and other symptoms (photophobia, nausea, vision changes, and vomiting), the Veteran retained full-time employment as a nurse throughout most of the appeal until retiring in early 2020. See July 2019 Hearing Transcript. Medical treatment records indicate that he sought retirement due to mental health issues, and a December 2019 letter from his employer states that medical retirement was granted due to lumbar degenerative disc disease with radiculopathy and major depressive disorder. In other words, headaches were not implicated in his retirement, and his gainful employment belies the notion of severe economic inadaptability. Following his retirement, medical treatment records show that the Veteran reported having two days of major migraines in January 2020. He was later seen for optometry treatment on June 18, 2020. He stated that he had “moments of headache and mild ache” that was “just occasional” but “nothing recent.” He also denied any new onset of headache on July 1, 2020. The Veteran was afforded an examination on July 15, 2020. He stated that his symptoms had worsened and that he had “bad headaches” two to three times a month and currently one to two bad headaches per month. He was seen at VA on October 15, 2020 and denied having headaches. He was afforded another examination on November 18, 2020 at which time he reported his headaches had decreased in recent months to less than one per month and with lessening severity as well. The Board finds that the reporting at the July 2020 examination is not credible. When seeking treatment in June 2020, he clearly described mild, infrequent, past headaches and reported no new headaches in early July. Yet within a few weeks, he relayed a contradictory history of frequent, severe headaches for this same period. His statements prior to the July 2020 examination are afforded greater weight as they were made for the purpose of treatment. The objective evidence tends to indicate a significant improvement in his headaches such that they were not very frequent completely prostrating and prolonged, which is consistent with his reporting at the November 2020 examination. Consideration is given to the January 2020 report of two days of migraines. This statement is too vague to support the assignment of an increased rating as it does not indicate the frequency of symptoms. That is, it is unclear whether the migraines were recurring, particularly considering his June 2020 statement that he had no “recent” symptoms. Moreover, even assuming that the migraines were recurrent and represented two incapacitating episodes per month (which is not conceded), such is broadly consistent with his described symptoms at the hearing, which did not preclude him from being gainfully employed. Accordingly, an initial rating in excess of 30 percent for headaches is not warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alhinnawi 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.