Citation Nr: 21022476 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-49 467 DATE: April 15, 2021 ORDER Service connection for a left quadriceps muscle tear is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. FINDINGS OF FACT 1. In a May 2015 administrative decision, the Agency of Original Jurisdiction (AOJ) determined that the Veteran’s discharge for the period of service from February 16, 1999 to August 30, 2013 was under dishonorable conditions by reason of the sentence of a general court-martial, and found no evidence to warrant a finding of mental incompetency at the time of the discharge. 2. The preponderance of the evidence is against the finding that the Veteran’s left quadriceps muscle tear had its onset in or was otherwise causally related to the Veteran’s honorable period of service from May 1986 to February 1999. CONCLUSIONS OF LAW 1. The Veteran’s character of discharge for his service period from February 16, 1999 to August 30, 2013 is a statutory bar to VA benefits for disability incurred during that period of service. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.1, 3.12, 3.13. 2. The criteria for service connection for a left quadriceps muscle tear have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1986 to February 1999. He also had an additional period of service from February 1999 to August 2013, which was deemed dishonorable pursuant to the May 2015 administrative decision. 38 C.F.R. § 3.12(c)(2). The same administrative decision found no evidence to warrant a finding of mental incompetency at the time of discharge. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a June 2015 VA Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for GERD, hypertension, OSA, ED, low back disability, and left torn quadriceps muscle. The Veteran’s Notice of Disagreement (NOD) was received in July 2015. The Statement of the Case (SOC) with respect to all issues except service connection for a left quadriceps muscle tear was issued in October 2016. The Veteran’s VA Form 9, substantive appeal to the Board, was received in October 2016. In December 2019, the Veteran and his representative appeared before the undersigned Veterans Law Judge (VLJ) for a Board videoconference. The transcript is of record. In March 2020, the Board remanded the claims for further development and adjudication. Entitlement to service connection for the left quadriceps muscle tear. The Veteran seeks service connection for a left quadriceps muscle tear. During the December 2019 hearing, the Veteran testified that he suffered an injury resulting in a quadriceps muscle tear after his second deployment. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The term “Veteran” means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Accordingly, a discharge or release from active service under conditions other than dishonorable is generally a prerequisite to entitlement to VA pension or compensation benefits. See 38 U.S.C. § 101 (18); 38 C.F.R. § 3.12 (a). Service department findings are binding and conclusive upon VA for purposes of establishing an individual’s service. VA does not have the authority to alter the findings of the service department, to include a claimant’s discharge characterization. 38 C.F.R. § 3.203 (a); Spencer v. West, 13 Vet. App. 376, 380 (2000). Where a claimant seeks recharacterization of his discharge, his recourse is with the service department, not VA. See Harvey v. Brown, 6 Vet. App. 416 (1994). As discussed below, the Veteran’s character of discharge for the active duty service from February 16, 1999 to August 30, 2013, constitutes a bar to benefits. 38 C.F.R. § 3.12 (c)(2) (a discharge by reason of a sentence of a general court-martial). The Board recognizes that a discharge or release from service under 38 C.F.R. § 3.12 (c)(2) will not be a bar to VA benefits if it is found that the person was insane at the time of committing the offense causing such discharge or release. 38 U.S.C. § 5303 (b); 38 C.F.R. § 3.12 (b). At the outset, the record does not contain the Veteran’s service treatment records (STRs) from the May 1986 to February 1999 period of active duty. The sole record available from that period of service is the Veteran’s March 1986 enlistment examination report. In April 2020, the RO sent a Personnel Information Exchange System (PIES) request requesting the Veteran’s complete records. A follow up email was sent in July 2020. A November 2020 electronic screen shot from the Records Management Center indicates that no such records exist. In December 2020, an additional request was sent to the National Personnel Records Center. A January 2021 letter from the RO to the Veteran contains a formal finding of unavailability and outlines the efforts undertaken to obtain the Veteran’s complete STRs. Although the service treatment records have not been obtained, the duty to assist has been satisfied, and a remand is not warranted. VA has made reasonable efforts to obtain the missing treatment records; however, a formal finding of unavailability of service records is of record, which reflects that all attempts to obtain these records have been unsuccessful. See 38 C.F.R. § 3.159(c)(1). Given the aforementioned, any further attempts to obtain the treatment records would be futile. In these circumstances, the duty to assist does not require additional action on the part of VA. When, as here, the Veteran’s STRs are unavailable or incomplete, the Board has a heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision....” Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). No presumption, however, either in favor of the claimant or against VA, arises when there are lost or missing STRs. Cromer, 1 Vet. App. at 217-18 (declining to apply “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown.). The legal standard for proving the claim is not lowered; rather, the Board’s obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Accordingly, the absence of STRs from the Veteran’s period of service does not eliminate the need for evidence supporting the claims on appeal, including evidence suggesting a medical nexus between any claimed disability and an in-service event, injury, or disease. The Veteran’s March 1986 entrance examination does not contain any notations of a left quadriceps tear. An October 2006 note treatment note within the Veteran’s STRs indicates that he was seen for complaints of left thigh pain for the past three days. It was noted that he had a pulled muscle. A February 2009 notation within the Veteran’s STRs indicates that he was seen for right thigh pain following an injury. The treatment note indicates that the Veteran tore his left thigh muscle three years ago, and that it did not heal completely, leaving a defect in the left thigh. A September 2009 report of medical history indicated that the Veteran had a left herniated quad muscle. A November 2009 permanent physical profile indicates that the Veteran was limited in physical activities due to chronic tear and scarring of left quadriceps muscle. In November 2009, the Veteran underwent a VA examination. The VA examiner noted the February 2009 STR notation regarding the Veteran’s left thigh injury. The Veteran reported stepping out of a vehicle in full combat gear and experiencing sudden acute pain of the left anterior thigh. The Veteran also reported that he was not seen for the injury for one month. He also reported no prior injury of the quadriceps muscle, no prior tendonitis or prior medical condition that may have predisposed him to quadriceps injury. The VA examiner noted that the Veteran’s muscle tear was not verified by x-ray but that he was in the process of undergoing further evaluation of this injury. The VA examiner also indicated that it is likely there is a partial tear of the quadriceps muscle and that a tear often occurs when there is a heavy load on the left with the foot planted and the knee partially bent. The VA examiner then indicated that complete tear of the quadriceps tendon is a disabling injury that affects knee function and that the Veteran’s left knee is unaffected. There was no kneecap sag or droop noted. A May 2015 administrative decision indicates that for the period from May 29, 1986 to February 15, 1999, the Veteran’s service is considered honorable for VA purposes. Further, for the period from February 16, 1999 to August 30, 2013, the Veteran’s service was deemed dishonorable by reason of sentence of a general court-martial. It was determined that the Veteran was not entitled to health care for any disabilities determined to have occurred during that period of service. 38 C.F.R. § 3.12(c)(2). Moreover, the administrative decision found that there was no evidence to warrant a finding of mental incompetency at the time of the discharge. In light of the foregoing, the preponderance of the evidence is against the claim. The Veteran’s left quadriceps muscle tear did not have its onset in and is not otherwise causally related his honorable period of service from May 1986 to February 1999. As such, service connection is denied. The medical evidence of record shows that the Veteran’s disability is not related to his period of honorable service, but rather his dishonorable service, which is a statutory bar to benefits. The Veteran’s STRs and his own reports clearly indicate that he sustained an injury tearing his left quadriceps muscle during period of service which was deemed dishonorable. An October 2006 treatment note indicates that the Veteran had a pulled left quadriceps muscle, and a February 2009 treatment note confirms that the Veteran’s left quadriceps muscle was torn 3 years prior. Moreover, the November 2009 VA examination report further confirms these findings. After examining the Veteran and taking into consideration his reports, the November 2009 VA examiner indicated that the Veteran’s left quadriceps tear was a result of an injury which happened during a period of service deemed dishonorable. Thus, the preponderance of the evidence shows that the Veteran’s left quadriceps muscle tear manifested during and is due to a period of service which was dishonorable. As previously mentioned, a discharge by reason of the sentence of a general court martial is a statutory bar to VA benefits. 38 C.F.R. § 3.12 (c)(2). As a result, the Veteran is barred from receiving benefits related to the incurrence of a disability during this period of service. While the Veteran’s STRs from his honorable period of service are not available, the available records unequivocally establish that his left quadriceps muscle was torn approximately seven years after the period of honorable service. In other words, availability of the Veteran’s complete STRs would not change the disposition of this claim. In sum, the evidence does not show that the Veteran’s left quadriceps muscle had its onset or is causally related to the Veteran’s honorable period of service. Instead, the medical evidence of record shows that the Veteran’s disability had its onset and is related to the period of service which was deemed dishonorable. Therefore, the claim must be denied as a matter of law. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for GERD. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for OSA. The Veteran seeks service connection for a low back disability, GERD, hypertension, and OSA. During the December 2019 hearing, the Veteran testified that he first began having low back problems after a motor vehicle accident (MVA) driving in the desert in 1990. He reported that GERD had its onset in 1990, and that he was diagnosed at discharge. With respect to hypertension, the Veteran reported that he first had high blood pressure readings after his first deployment in February 1991, and that he was diagnosed with hypertension and prescribed medication in 2001. Finally, with respect to OSA, the Veteran testified that he first noticed problems with sleeping during his first deployment, and that he would wake up choking and kicking. The Veteran also testified that he was diagnosed with OSA and prescribed a CPAP machine in 2010. Essentially, the Veteran contends that these disabilities either had their onset or were otherwise causally related to his honorable period of service. The Veteran’s available STRs indicate that in June 1999 he complained of back spasms. A June 2007 back MRI indicated minimal disc desiccation and disc bulge. There are also notations within the Veteran’s STRs that he was involved in MVAs in 2001 and 2007. The Veteran’s GERD was noted on his September 2009 in-service medical examination. The November 2009 VA examination report indicates that her was diagnosed with hypertension in 2001 at which point he began taking medications. A November 2009 sleep study confirms a diagnosis of OSA. The Veteran underwent a VA examination in November 2009. However, no nexus opinions were provided following the examination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the evidence suggesting that some of the Veteran’s disabilities may have had their onset or were otherwise causally related to his honorable period of service, as well as absence of complete STRs from that period of service, a remand is necessary to provide a VA examination with a complete nexus opinion. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the matters are remanded for a VA examination with complete nexus opinions. 5. Entitlement to service connection for ED. During the December 2019 Board hearing, the Veteran testified that his ED is related to the medications that he takes to treat the above-noted disabilities. The November 2009 VA examination report indicates that the Veteran’s ED is secondary to the medication that he takes to treat his hypertension. Accordingly, the Veteran’s claim for service connection for ED is inextricably intertwined with the claims for service connection for a hypertension. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the claim for service connection for ED must be deferred pending the outcome of his other claims. Accordingly, a remand is warranted. These matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his low back disability. A copy of this remand with all relevant medical records must be made available to the VA examiner. The VA examiner is requested to review all pertinent evidence, including the Veteran’s lay assertions, and undertake all necessary studies. The VA examiner is requested to opine as to: (a.) Whether it is at least as likely as not that the Veteran’s low back disability had its onset during the Veteran’s honorable period of service (May 29, 1986 to February 15, 1999), manifested to a compensable degree within one year of that period of service, or is otherwise causally related to the Veteran’s honorable period of service. (b.) In providing this opinion, the VA examiner is requested to address the Veteran’s lay assertions that his current low back disability was the result of an in-service accident in 1990. (c.) In providing this opinion, the VA examiner is also requested to address the June 1999 in-service notation that the Veteran experienced back spasms during the period of service deemed dishonorable, and the 2001 and 2008 MVAs. (d.) The VA examiner is requested to provide a full rationale for all conclusions reached. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his GERD. A copy of this remand with all relevant medical records must be made available to the VA examiner. The VA examiner is requested to review all pertinent evidence, including the Veteran’s lay assertions, and undertake all necessary studies. The VA examiner is requested to opine as to: (a.) Whether it is at least as likely as not that the Veteran’s GERD had its onset during the Veteran’s honorable period of service (May 29, 1986 to February 15, 1999), or is otherwise causally related to the Veteran’s honorable period of service. (b.) In providing this opinion, the VA examiner is requested to address the Veteran’s lay assertions with respect to the onset of his disability. (c.) The VA examiner is requested to provide a full rationale for all conclusions reached. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. A copy of this remand with all relevant medical records must be made available to the VA examiner. The VA examiner is requested to review all pertinent evidence, including the Veteran’s lay assertions, and undertake all necessary studies. The VA examiner is requested to opine as to: (a.) Whether it is at least as likely as not that the Veteran’s hypertension had its onset during the Veteran’s honorable period of service (May 29, 1986 to February 15, 1999), manifested to a compensable degree within one year of that service, or is otherwise causally related to the Veteran’s honorable period of service. (b.) In providing this opinion, the VA examiner is requested to address the Veteran’s lay assertions with respect to the onset of his disability. (c.) The VA examiner is requested to provide a full rationale for all conclusions reached. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his OSA. A copy of this remand with all relevant medical records must be made available to the VA examiner. The VA examiner is requested to review all pertinent evidence, including the Veteran’s lay assertions, and undertake all necessary studies. The VA examiner is requested to opine as to: (a.) Whether it is at least as likely as not that the Veteran’s OSA had its onset during the Veteran’s honorable period of service (May 29, 1986 to February 15, 1999), or is otherwise causally related to the Veteran’s honorable period of service. (b.) In providing this opinion, the VA examiner is requested to address the Veteran’s lay assertions with respect to the onset of his disability. (c.) The VA examiner is requested to provide a full rationale for all conclusions reached. (Continued on the next page)   6. Following adjudication of the Veteran’s claim for service connection for a back hypertension, adjudicate the claim for entitlement to service connection for ED. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.