Citation Nr: 21024101 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-41 678 DATE: April 22, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for a right shoulder disability is granted. REMANDED Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The competent, credible, and probative evidence of record establishes that the Veteran’s current hypertension is related to his presumed exposure to herbicides during service. 2. The evidence is in relative equipoise as to whether the current right shoulder disability was incurred during or as a result of an injury during service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to April 1971, including service in the Republic of Vietnam from February 1970 to April 1971. In August 2019, the Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) via video conference. A transcript of the hearing is associated with the claims file. This appeal was previously before the Board in November 2019, at which time the claims were remanded for additional evidentiary development. All requested development has been completed with respect to the issues adjudicated in this case but, as explained below, further development is needed with respect to the claim being remanded herein. Service Connection Establishing service connection generally requires competent evidence of the following: (1) current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for hypertension In addition to the method described above, service connection may also be established on a presumptive basis for certain diseases associated with exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection on this basis, a Veteran who, during active military service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary. See 38 U.S.C. § 1116(f); 3.307(a)(6). As noted, the evidence reflects that the Veteran served in Vietnam during the applicable time period. Therefore, the Veteran is presumed to have been exposed to herbicide agents As also noted, certain diseases will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. However, hypertension is not one of those diseases and, as such, is outside the scope of service connection on a presumptive basis. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In December 2019, a VA physician reviewed the claims file and opined that it is as likely as not that the Veteran’s current hypertension was incurred in or caused by his presumed exposure to herbicides in Vietnam, noting that medical literature, specifically, an update to the National Academy of Sciences (NAS) Institute of Medicine’s Veteran’s and Agent Orange study, found that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. The December 2019 VA opinion is considered competent, credible, and probative evidence, as the examiner provided a well-reasoned rationale in support of his opinion and there is no opposing medical evidence or opinion of record. Given the positive nexus opinion provided by the December 2019 VA examiner, the Board finds service connection for hypertension is warranted, and the claim is granted. 2. Entitlement to service connection for a right shoulder disability The evidence of record indicates that the Veteran has been diagnosed with a right shoulder disability during the appeal period. For example, a November 2018 treatment record shows the Veteran was diagnosed with rotator cuff arthropathy and biceps tendinitis in the right shoulder. A current disability has therefore been demonstrated. With respect to an in-service injury, the Veteran has consistently asserted that, while performing repair on a guard tower in Vietnam, he fell 20 feet and landed onto his right shoulder, after which he experienced pain that was treated with anti-inflammatory medication and two injections into his shoulder. The Veteran’s service treatment records (STR) do not reflect any complaints or treatment for a right shoulder injury during his service in Vietnam. Indeed, in an effort to fulfill its duty to assist the Veteran in obtaining evidence relevant to his claim, VA attempted to obtain records of such treatment but was unsuccessful. See September 2016 Request for Information. Additionally, objective evaluation of the Veteran’s upper extremities was normal during his separation examination in April 1971. Nevertheless, the Veteran is competent to report the events that occurred and the symptoms he expereinced during service. His report of an in-service right shoulder injury has been deemed credible lay evidence of such, given his consistent reports throughout the pendency of the appeal. Therefore, an in-service injury has been demonstrated. As such, the remaining question is whether there is a nexus between the Veteran’s in-service right shoulder injury and his current right shoulder disability. The Veteran has consistently reported that he continued to experience right shoulder pain and problems after the in-service injury, including during and after service. During the August 2019 Board hearing, the Veteran testified that, while he did not receive any further treatment on active duty, he continued to have problems and pain in his right shoulder. He also testified that his problems continued after service, although intermittently depending on the type of activities he performed. In this regard, he testified that he lived with his right shoulder pain after service and did not seek treatment because he was afraid of doctors. His wife of more than 40 years also testified that the Veteran expereinced limitations with his right shoulder after service. The post-service medical evidence shows the Veteran sought treatment for chronic neck pain and headaches in March 2007, which he reported began following a motor vehicle accident (MVA) in October 2006. The evidence shows that, in addition to the previous complaints of neck and head pain, he also reported having right shoulder pain in March 2009, after which an x-ray study showed findings that were suggestive of tendinopathy and a partial tear in the bicep tendon. See VA treatment records dated March 2007, March 2009, and May 2009. Subsequent VA treatment records show the Veteran continued to endorse having right shoulder pain and he was eventually diagnosed with impingement syndrome in the right shoulder with subacromial bursitis and a right rotator cuff tear, for which he eventually had surgery. See VA treatment records dated April and August 2012; May 2017; October 2018. In November 2016, a VA physician reviewed the claims file and opined that it is less likely than not that the Veteran’s current right shoulder disability was incurred in or caused by the in-service injury reported by the Veteran. In making this determination, the VA examiner noted that rotator cuff tears are largely caused by normal wear and tear that goes along with aging but he also noted other possible causes, including injury to the shoulder, occupations that involve repetitive overhead work, and participation in sports. Regarding this case, the examiner noted the Veteran’s credible report of an in-service right shoulder injury, but he also noted that the service records do not demonstrate a persistent right shoulder condition during service, as the April 1971 examination did not reveal any upper extremity or musculoskeletal abnormalities. He stated that, from a medical point of view, the Veteran experienced minor self-limiting conditions that resolved as expected of such illnesses or injuries and, thus, stated it would not be likely that complications from in-service events would be expected to resurface later in life. In this regard, the VA examiner noted there were no records showing the Veteran was treated for continued right shoulder problems shortly after service and that, when right shoulder problems are shown to arose in 2009, it was a considerable period of time after service without continuity of the same complaints, which would have severed any causal connection to the current disability. The examiner also noted that the Veteran was a chef after service which he stated supported a finding of no lasting injuries in the right shoulder and offered an explanation of the development of the rotator cuff tear. The November 2016 VA opinion is considered competent medical evidence. However, the Board notes that the examiner’s opinion does not adequately consider the competent and credible lay evidence of record. As noted, the examiner based his opinion largely upon on the lack of medical evidence of continued right shoulder symptoms following the in-service injury. Indeed, the examiner stated there was no evidence of a persistent right shoulder condition during service, described the in-service injury as self-limiting and resolved, and noted the lack of records showing treatment for continued right shoulder problems after service, all of which is contrary to the Veteran’s report of continued right shoulder pain and problems following the in-service injury. In this regard, the Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology and, in this case, there is competent and credible lay evidence (from the Veteran and his wife) as to the continued nature of the Veteran’s right shoulder pain and problems after the in-service injury and following his discharge from service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). Additionally, the examiner noted the Veteran’s post-service employment as a chef as an alternative cause of the current right shoulder problems; however, the Veteran testified that his work as a chef was not strenuous. Therefore, the Board finds that the VA opinion does not preclude an award of service connection because it does not exclude the likelihood that the current disability was incurred as a result of the in-service injury. Indeed, the examiner noted that rotator cuff tears can be caused by injury to the shoulder and, if the Board sets aside the examiner’s reliance upon the lack of evidence showing continued right shoulder problems following the in-service injury, the Board finds that the opinion, coupled with the competent and credible lay evidence of record, raises a reasonable doubt as to whether the current right shoulder disability may be related to the in-service injury. Under these circumstances, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s current right shoulder disability was incurred during service as a result of an in-service injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for a right shoulder disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction is remanded. The Veteran has asserted that his current erectile dysfunction is secondary to his service-connected diabetes mellitus disability. During the August 2019 hearing, he testified that he mentioned this disability to his doctor after he was diagnosed with diabetes mellitus. He also testified that he may have had diabetes mellitus before he was actually diagnosed with the disability, as he expereinced associated symptoms, such as vision loss, before sought treatment and was diagnosed with diabetes because he was afraid to go to the doctor. In this regard, a VA physician has opined that the Veteran’s erectile dysfunction is less likely as not caused or aggravated by his diabetes mellitus and noted that the Veteran’s history suggests that he had erectile dysfunction before he was diagnosed with diabetes. The VA examiner also noted that the Veteran’s erectile dysfunction could be related to a lump found on his scrotum. See August 2012 VA opinion. While the examiner’s rationale relates to whether the Veteran’s service-connected diabetes mellitus caused his erectile dysfunction, this rationale does not sufficiently address the aggravation element of this claim, as the timing of the two diagnoses is not relevant to whether the Veteran’s diabetes mellitus causes any increase in his erectile dysfunction. The Board also notes that it is not clear if the examiner fully considered the Veteran’s competent report of experiencing erectile dysfunction after he was diagnosed with diabetes mellitus. Therefore, a remand for another medical opinion is needed that addresses whether the Veteran’s erectile dysfunction is secondary to his service-connected diabetes mellitus. The matters are REMANDED for the following action: 1. Request that an appropriate medical professional review the claims file and provide an opinion regarding the Veteran’s erectile dysfunction. The claims file must be made available to the examiner and the examination report must reflect that Following review of the claims file and examination of the Veteran, the examiner must address the following: Is it as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction was (a) caused by OR (b) is/was aggravated by his service-connected diabetes mellitus? An opinion must be provided for causation and aggravation. Aggravation means an increase in disability of the nonservice-connected disability. In answering each of the foregoing, the examiner should address the lay and medical evidence of record and provide a well-reasoned rationale for each opinion offered. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.