Citation Nr: 21022025 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 19-01 847 DATE: April 14, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for erectile dysfunction is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for right knee disability is granted. Entitlement to service connection for left knee disability is granted. REMANDED Entitlement to service connection for disability, other than hypothyroidism, due to exposure to hazardous materials, including lead and cadmium, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for right foot plantar fasciitis is remanded. Entitlement to service connection for left foot plantar fasciitis is remanded. Entitlement to service connection for right ankle disability is remanded. Entitlement to service connection for left ankle disability is remanded. Entitlement to service connection for left lower extremity disability is remanded. Entitlement to service connection for right lower extremity disability is remanded. Entitlement to service connection for hypothyroidism is remanded. Entitlement to service connection for psoriasis is remanded. Entitlement to service connection for low back disability is remanded. Entitlement to service connection for left shoulder disability is remanded. Entitlement to service connection for right shoulder disability is remanded. Entitlement to a compensable initial rating for bilateral hearing loss is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. INTRODUCTION The Veteran served on active duty from August 1983 to December 1983, from April 1991 to March 1991, and from February 2003 to January 2004. The Veteran also had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his diabetes mellitus, type II, began during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his hypertension began during active service. 3. Resolving reasonable doubt in the Veteran’s favor, his left knee disability began during active service. 4. Resolving reasonable doubt in the Veteran’s favor, his right knee disability, began during active service. 5. The Veteran’s erectile dysfunction is proximately due to his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for erectile dysfunction as secondary to service-connected diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for diabetes mellitus, type II, hypertension, left knee disability, and right knee disability, claiming that each such disability onset during active duty or a period of ACDUTRA. He further asserts that his erectile dysfunction is secondary to his diabetes mellitus, type II, and/or hypertension. Active service includes periods of ACDUTRA when service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Active service also includes periods of INACDUTRA when service connection may be granted for disabilities resulting from an injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C. § 101(23), (24); 38 C.F.R. § 3.6(a), (d). In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. See Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The RO found that service connection was not warranted for these conditions either because treatment was not documented during active duty or because there is no evidence of a current disability. During the pendency of this appeal, the law regarding the definition of a disability changed with respect to musculoskeletal conditions. Specifically, the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “to function under the ordinary conditions of daily life including employment.” Id. at 1363 (quoting 38 C.F.R. § 4.10). Preliminarily, the Board observes that the Veteran was not provided VA examinations with respect to these claims. Further, the Board observes that the Veteran is a medical professional, specifically, an osteopathic physician. Consequently, the Board accepts his assertions as competent medical opinions. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The evidence of record includes current diagnosis of diabetes mellitus, type II, and hypertension, which are substantiated by clinical testing. During the pendency of the appeal, the Veteran described how left and right knee pain hindered his ability to walk, run, and participate in physical training, among other limitations. The Veteran asserted that these limitations have continued to present. Based on the Veteran’s competent medical opinion, and the presence of service treatment records corroborating in-service symptoms, the Board finds sufficient evidence of left and right knee functional impairment to qualify as a current disability subject to service connection. Saunders, 886 F.3d at 1368. Throughout the pendency of this appeal, including during the January 2021 hearing, the Veteran testified that his diabetes mellitus, type II, hypertension, left knee disability, and right knee disability onset during his active duty. The Veteran acknowledges that his service treatment records do not document complaints of or treatment for either diabetes mellitus, type II, or hypertension. He points out that in-service urinalyses showed increased glucose, however. He further stated that he self-treatment both diabetes mellitus, type II, and hypertension, including prescribing himself a particular diet to combat their progression and administering medications. Additionally, there are numerous profiles restricting the Veteran from participating in long runs for physical training. He asserts that these profiles were due to his knees. Generally, the Veteran stated that he avoided formal medical treatment because he wanted to maintain his flight status. In support of these claims, the Veteran submitted several statements from his ex-wife, daughters, and medical assistant. These statements describe the Veteran’s difficulties with his disabilities. The Board finds that the medical and lay evidence linking the Veteran’s diabetes mellitus, type II, hypertension, right knee disability, and left knee disability to service is probative, competent and credible. As determined above, the Veteran is a medical professional and, thus, his statements are competent medical evidence as to his symptoms, diagnosis, treatment, course, and onset of the claimed disabilities. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). The Board finds that the evidence is consistent with other evidence of record, both medical and lay, and further finds that it is competent and credible. The Board finds that the medical and lay evidence, including the Veteran’s and supporting statements, show that the Veteran’s diabetes mellitus, type II, hypertension, left knee disability, and right knee disability had their onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s diabetes mellitus, type II, hypertension, left knee disability, and right knee disability had their onsets during a period of active duty. As such, service connection is granted for each of these disabilities. See 38 C.F.R. § 3.303(a). With respect to erectile dysfunction, the Veteran asserts that this disability is secondary to his service-connected diabetes mellitus, type II. Service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service-connected disability; or, aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; see also, El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The evidence of record includes a current diagnosis of erectile dysfunction. The Veteran opined that his erectile dysfunction to etiologically related to his diabetes mellitus, type II. Cox, 20 Vet. App. at 569; Colvin, 1 Vet. App. at 175. As such, service connection is granted for the Veteran’s erectile dysfunction as secondary to diabetes mellitus, type II. See 38 C.F.R. § 3.310. REASONS FOR REMAND Disability Associated with Lead and Cadmium Exposure, Sleep Apnea, Left and Right Plantar Fasciitis, Left and Right Ankles, Left and Right Lower Extremities, Hypothyroidism, Psoriasis, Low Back, and Left and Right Shoulders Some of the claims for these disabilities were denied because of no current diagnosis, others were denied due to the alleged status of the Veteran’s service. First, there remains a question as to the status of the Veteran’s periods of service (active duty, ACDUTRA, or INACDUTRA). This is significant insofar as determining whether service connection is available for each of the claimed disabilities (those occurring during active duty versus those resulting from injury versus disease). As such, a remand is warranted for additional development. Second, the Veteran was not provided a VA examination with respect to any of these claimed disabilities. As discussed in the decision above, the law regarding the definition of a current disability changed during the pendency of this appeal to include functional impairment due to pain for musculoskeletal disabilities. Saunders, 886 F.3d at 1368. Finally, the Veteran, as a medical professional, has asserted that the rigors of his duty, specifically during flights, resulted in the musculoskeletal disabilities claimed here. Alternatively, the Veteran asserts that a shoulder disability is secondary to his sleep apnea (sleep apnea forcing him to sleep on his side). He also asserted that he experiences a variety of disabilities due to alleged in-service exposure to hazardous materials, including lead and cadmium. The Board finds that remanding these claims is warranted in order to provide the Veteran with the appropriate VA examinations and to adjudicate the claims with consideration of the Veteran’s statements as a medical professional, not as a lay person. Bilateral Hearing Loss The Veteran was provided a VA examination to ascertain the presence and severity of his bilateral hearing loss in October 2016. Since then, the Veteran has testified that his hearing acuity has worsened. The Board finds that the October 2016 examination is too remote, and the evidence of record of otherwise insufficient, to adequately assess the current severity of the Veteran’s bilateral hearing loss. Consequently, the Board finds that a remand is warranted in order to provide the Veteran another examination. TDIU This issue was raised by the Veteran during the January 2021 Board hearing. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that a remand is warranted for development and, given that it is inextricably intertwined with other issues remanded herein, contemporaneous adjudication. The matters are REMANDED for the following action: 1. Undertake the appropriate development to ascertain the status of each period of the Veteran’s military service (i.e., active duty, ACDUTRA, INACDUTRA). All such development should be documented, and that documentation should be associated with the claims file. 2. Undertake the appropriate development for the reasonably raised claim of entitlement to TDIU. All such development should be documented, and that documentation should be associated with the claims file. 3. Provide the Veteran with VA examinations (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) regarding the following disabilities:  disability associated with lead and cadmium exposure;  sleep apnea;  left and right plantar fasciitis;  left and right ankles,  left and right lower extremities (alternative claimed as neurological abnormalities associated with the low back disability or related to diabetes mellitus, type II);  hypothyroidism (also claimed as a result of exposure to lead and/or cadmium);  psoriasis;  low back; and  left and right shoulders The examiner as asked to ascertain the presence of the claimed disabilities, which, for the musculoskeletal disabilities, includes pain resulting in functional impairment. The examiners should opine as to whether it is at least as likely as not each such disability was incurred in or due to his military service OR were caused or aggravated by a service-connected disability. In so doing, the appropriate examiner must specifically consider and discuss the Veteran’s assertions regarding the rigors of flight and other aspects of his service on his body. The examiner is also asked to consider and discuss the Veteran’s statements as medically competent, as he is an osteopathic physician. All rendered opinions must include a thorough rationale. Provide the Veteran with a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to ascertain the severity of his service-connected bilateral hearing loss. Make all pertinent evidence of record available to the examiner and instruct the examiner to review that evidence. Ensure that the examiner provides all information required for rating purposes. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.