Citation Nr: 21026709 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-22 949 DATE: May 3, 2021 ORDER Entitlement to service connection for gastrointestinal disorder, to include colonic polyps is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for insomnia is dismissed. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's colon polyps began during active service or is otherwise related to service, to include herbicide exposure in Vietnam. 2. The Veteran's hypertension is not secondary to his service-connected PTSD, and is not otherwise related to service, to include herbicide exposure in Vietnam. 3. The Veteran's erectile dysfunction is not secondary to his service-connected PTSD and is not otherwise related to service. 4. On May 14, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the appeal of the claims for service connection for insomnia was requested. CONCLUSIONS OF LAW 1. The criteria for service connection for colon polyps are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for dismissal of entitlement to service connection for insomnia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to February 1971, to include service in Vietnam. These matters are on appeal to the Board of Veterans' Appeals (Board) from November 2012 and January 2011 rating decisions. A hearing was held by the undersigned Veterans Law Judge in May 2018. At the outset, the Board finds that these claims have been ongoing since the initial filing date. Entitlement to service connection for colon polyps was initially denied in a January 2011 rating decision; the Veteran filed a Notice of Disagreement (NOD) in April 2011 and the decision has been pending on appeal since that time. Similarly, the Veteran's claims for service connection for hypertension, erectile dysfunction, and insomnia were initially denied in a November 2012 rating decision. December 2012 correspondence reflects assertions of CUE in the November 2012 decision (reasonably construed as an NOD), and the decision has been pending on appeal since that time. As the claims were not final, a CUE motion is not legally applicable. See 38 C.F.R. § 3.105 (a). To the extent the claims have been characterized as CUE motions throughout the record, the Board finds these characterizations erroneous. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Neither hypertension, erectile dysfunction, nor colon polyps are listed in § 3.309 (a) as chronic diseases. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). In reaching a decision on all issues, the Board has considered the applicability of the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection colon polyps The Veteran contends his colon polyps were caused by herbicide exposure while serving in Vietnam. Initially, the Board notes that the Veteran was granted service connection for gastrointestinal reflux disorder (GERD) in a February 2021 rating decision. In light of the recent February 2021 VA examination report indicating that colon polyps and GERD are two separate disorders, the Board finds that the colon polyps claim is still on appeal. The evidence shows service in Vietnam; thus, the Veteran is presumed to be exposed to herbicides. Colonic polyps are not listed as a presumptive disease under 38 C.F.R. § 3.309 (e). However, service connection based on exposure to herbicides may also be considered on a direct, rather than presumptive, basis. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. The service treatment records (STRs) do not reflect treatment for colon polyps. Post-service treatment records show treatment for colon polyps following a colonoscopy in May 2006. The indication was a history of constipation on and off. In a July 2019 Order issued by the United States Court of Appeals for Veterans Claim (Court) in accordance with a Joint Motion for Partial Remand (JMPR), the September 2018 decision was vacated and remanded to obtain outstanding treatment records, including 2010 and 2011 colonoscopies and an upper GI endoscopy in 2015. Following a February 2020 Board decision effectuating the Order, these records were subsequently associated with the claims file. The treatment records reflect a diagnosis of colon polyps but provide no indication as to the etiology of the polyps. A VA examination for gastrointestinal conditions was conducted in January 2021. The Veteran's listed diagnoses were GERD, hernia hiatal, and gastric ulcer. The examiner found that, based on the Veteran's in-service complaints of chest pressure and pain and his service-connected PTSD, the Veteran's GERD was related to service. A VA examination for intestinal conditions was conducted in February 2021. The examiner noted the Veteran's diagnosis of colonic polyps since 2006. The Veteran reported a history of multiple colon polyps since 2006, with repeat colonoscopies almost every two years since, and polypectomies. He denied any known history of colon cancer or precancerous polyps. The examiner explained that the Veteran's diagnosis of colon polyps is separate from his diagnosis of GERD, which is a reflux of acid from the stomach up to the esophagus. GERD causes symptoms of heartburn and epigastric distress, while colon polyps are asymptomatic and are usually found upon colonoscopic examination. Some polyps can cause blood in stools, but the Veteran did not endorse this symptom. He stated that his colon polyps were incidentally discovered when he underwent a screening colonoscopy due to age. Advancing age is a risk factor for development of certain colon polyps, and the Veteran was 57 years old at the age of diagnosis, 35 years after herbicide exposure. Considering the above, the examiner opined that the Veteran's colon polyps were less likely than not to be caused by herbicide exposure. The preponderance of the evidence weighs against the Veteran's claim. While the Board acknowledges the Veteran's contentions regarding exposure to dust, herbicides, and other toxic materials in service, as a layperson the Veteran lacks the competence to render a nexus opinion on such a complex medical question. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board finds the February 2021 VA opinion highly probative, as her opinion is based on a thorough review of the medical records and accompanied by a detailed medical explanation. As there is no other competent evidence of record indicating a nexus to service, to include as due to herbicide exposure, the Veteran's claim must be denied. 2. Service connection - hypertension The Veteran contends his hypertension began in service, to include because of herbicide exposure. Alternatively, he contends it is caused secondarily by his service-connected PTSD. In his hearing and NOD, the Veteran explained that his blood pressure became elevated while under constant pressure, fear, and stress in Vietnam. The Veteran indicated "high or low blood pressure" in his February 1971 separation examination. The examination report reflected a blood pressure reading of 130/76. Post-service treatment records reflect a diagnosis of hypertension as early as 1997. A VA examination was first conducted in August 2012. The examiner explained there is no causal relationship between PTSD and hypertension. Most hypertension is essential or primary and a result of increased neural or hormonal activity. This is very common and occurs in approximately 30 percent of adults greater than 18 years of age. The Veteran has risk factors for hypertension. Obesity is associated with an increased prevalence and incidence of hypertension, and weight gain appears to be a main determinant of the rise in blood pressure, which is commonly seen with aging. The Veteran also has a history of alcoholism, which is known to cause long-term increases in blood pressure. This is a dose-related phenomenon: the more alcohol that is consumed, the stronger the link with hypertension. In this case, the hypertension is not caused by or a result of PTSD. In effectuating the Order, a February 2020 Board decision remanded the hypertension claim because the August 2012 examiner's etiology opinion did not consider the Veteran's presumptive exposure to herbicides due to his documented service in Vietnam and given the National Academy of Sciences (NAS) 2018 update in which hypertension was moved from the "limited or suggestive" category to the "sufficient evidence of an association" category in relation to Agent Orange. Another VA examination was conducted in February 2021. The examiner listed the diagnosis of hypertension in approximately 1997. According to the Veteran, his blood pressure was high when he returned from Vietnam in 1971. He did not see doctors regularly at that time due to a lack of insurance. He did not know if his blood pressure was high until 1997 when he first sought treatment at Columbus VAMC. The examiner took note of the Veteran's family history of hypertension, history of smoking from age 20 to the present, and heavy alcohol use intermittently for 15-20 years, quitting in 1999. All of these records are indicated within the record to be the cause, overall, of this problem, with no indication at all that the PTSD aggravated this condition. The examiner provided a lengthy and highly detailed explanation for his opinion that the hypertension is unrelated to service that the Board finds to be of high probative value. Despite the Veteran marking "high or low blood pressure" upon separation, there is no documented evidence that the Veteran suffered from a persistent elevated blood pressure during service or in the immediate post-military discharge period. His blood pressure was not very high in his separation examination. As noted in a January 1997 Columbus VAMC record, the Veteran was told once that his blood pressure was high but on re-check it was okay, and it has been okay since as far as he knew. At that visit, his blood pressure initially was 166/94, then 138/98 on repeat. Regarding herbicide exposure, the examiner acknowledged the 2018 NAS update, but noted that essential hypertension is not included in the VA list of presumptive conditions. Moreover, current medical literature clearly states that a family history of hypertension, and black race, are significant risk factors of hypertension. Tobacco use is also considered to be a risk factor. The Veteran has all 3 risk factors, and probable high salt intake over the years adds to the risk. To support this rationale, the examiner cited to medical literature on UpToDate. Considering all the above, herbicide exposure is less likely than not to have caused the Veteran's hypertension. The preponderance of the evidence weighs against the Veteran's claim. While the Veteran indicated he had high blood pressure upon separation, the objective readings at that time contradict this. Moreover, the Veteran stated in January 1997 that he was told once his blood pressure was high, but upon repeat was normal, which weighs against a history of consistently elevated blood pressure. While the Veteran contends he began experiencing elevated blood pressure in Vietnam, there is no objective medical evidence to confirm this, and the Veteran, as a layperson, is not competent to render such a diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Thus, the evidence is insufficient to establish an in-service incurrence or onset. The Veteran's recollection of events regarding this issue, based on a detailed review of the record and the Veteran's prior statements, is found to be inaccurate. Regarding both VA examiners' opinions on relation to herbicides and PTSD, the overall premise of both opinions is that essential hypertension is multi-factorial and the Veteran has multiple risk factors; thus, the evidence is insufficient to establish equipoise. The Board finds both opinions to be entitled to probative value insofar as they provide well-reasoned rationales for their opinions based on a review of the Veteran's medical history. While the August 2012 examiner does not expressly specify whether the Veteran's hypertension was aggravated by his PTSD, the opinion, as a whole, implies strongly (as does the treatment records) that the evidence is against PTSD playing any significant role in the development of hypertension given the Veteran's multiple risk factors cited above. The evidence, as a whole, clearly indicates that this condition was not aggravated by the Veteran's PTSD, but was caused (or aggravated) by other issues not related to service or to PTSD. The Board notes both examiners' reference to alcoholism as a risk factor, and the Veteran's statements that he self-medicated with alcohol to deal with his PTSD in service. A December 2010 VA examiner opined that the Veteran's prior alcohol and drug issues are secondary to his PTSD. However, that same examiner noted that the Veteran had his first DWI at age 17, and that the Veteran reported drinking heavily at that time, beginning at age 12. The Veteran further indicated that his alcohol use worsened after the military and also after his daughter died in 1997. He has had multiple DWIs. A May 2013 treatment record reflects that the Veteran reported drinking at a young age (prior to service is clearly indicated), then drinking heavily after his daughter died in 1997. A January 2015 report endorsed a history of alcohol dependence for a period of five years from 1994 to 1999. A January 2017 record reflected reports of heavy drinking for years after his daughter's death. Thus, there are several reports of heavy drinking prior to service and after service in the 1990s, largely relating to his daughter's very unfortunate death, not service. The evidence is insufficient to establish that the Veteran's alcohol use (which could have played a role in the development of hypertension) was a result of PTSD. In sum, as the evidence weighs against the Veteran's hypertension developing in service, as a result of PTSD, or as a result of herbicide exposure, his claim must be denied. 3. Service connection - erectile dysfunction The Veteran contends his erectile dysfunction began in service. Alternatively, he contends it is secondarily due to his service-connected PTSD or secondarily due to his diagnosed hypertension. In his hearing and in previous correspondence, the Veteran has explained that he experienced instances of erectile dysfunction while serving in Vietnam, attributing it to the stress and pressure he was under. His STRs do not reflect complaints or treatment for erectile dysfunction. More importantly, post-service treatment records reflect a diagnosis as early as 2006, though a 2006 record indicates the Veteran reported a history of erectile dysfunction. A VA examination was conducted in August 2012. The Veteran reported that he developed erectile dysfunction in Vietnam. The examiner listed several etiology factors, including obesity, hypertension, hyperlipidemia, age, depression, prior tobaccoism, and prior alcoholism. The examiner found a negative nexus to PTSD, explaining that there are many underlying physical and psychological causes of erectile dysfunction. He is a former drinker, and clinical studies have shown that prolonged alcohol abuse causes irreversible damage to the nerves in the penis, which results in alcohol impotence. Studies document an association between cigarette smoking and erectile dysfunction. Men who smoked more than 20 cigarettes daily had a 60 percent higher risk of erectile dysfunction compared to men who never smoked. The cause is multi-factorial in this case. The erectile dysfunction is not caused by or a result of PTSD. A Disability Benefits Questionnaire (DBQ) drafted by the Veteran's physician at Columbus VAMC was submitted in October 2019. The date of diagnosis was listed as November 2016, and the physician indicated the etiology was age. The preponderance of the evidence weighs against the Veteran's claim. While the Veteran is competent to recall observable symptomatology, such as instances of being unable to achieve an erection in service and after, the lack of complaint or treatment for this condition in service and approximately 35 years after service, as one might reasonably expect given the sensitive nature of the issue, contradicts the credibility of this testimony. Moreover, both medical opinions of record attribute the cause to several other factors, including age, hypertension, obesity, hyperlipidemia, tobacco and alcohol use, and depression. To the extent that there are indications of alcohol use as a coping mechanism for PTSD and depression (for which he is service-connected), as explained above, the overall premise of the August 2012 examiner's opinion is that in this case, the cause is multi-factorial. The Veteran has other risk factors, such as obesity, hypertension, and decades of tobacco use. While the examiner did not expressly specify whether erectile dysfunction is aggravated by PTSD, the opinion, as a whole, implies that the evidence is against PTSD playing any significant role in the development of erectile dysfunction. The service and post-service treatment records, overall, provide evidence against this claim. The preponderance of the evidence weighs against the Veteran's erectile dysfunction having an in-service incurrence or onset or developing as a result of PTSD. Entitlement to service connection on a theory of secondary to hypertension is unavailable as the Veteran is not service connected for hypertension. Thus, the Veteran's claim must be denied. 4. Service connection - insomnia In the Veteran's May 2018 hearing, his representative clearly and unambiguously stated that the Veteran was withdrawing his insomnia claim. The Veteran also withdrew claims regarding PTSD and depressive disorder at that time. A September 2018 Board decision adjudicated several issues on appeal but did not address the withdrawn issues. As explained above, in July 2019, a Court Order pursuant to a JMPR vacated and remanded the Veteran's claims for (1) service connection for hypertension, (2) service connection for a gastrointestinal disorder, to include colon polyps, (3) service connection for erectile dysfunction, and (4) failure to adjudicate an increased rating claim for PTSD (that had previously been indicated as withdrawn in the May 2018 hearing). The parties stated the "Appellant does not wish to further pursue an appeal as to his claim seeking entitlement to service connection for insomnia (which was also properly certified to the Board on appeal but not adjudicated in its September 11, 2018 decision . . . Accordingly, the parties respectfully request that the Court dismiss the appeal as to those claims." The Order indicates that the appeal as to the remaining issue was dismissed. In a letter dated July 10, 2019 from the Veteran's representative to the Veteran, it was indicated that, as agreed to in prior communications, an appeal of the claims of entitlement to service connection for ischemic heart disease and insomnia were not pursued. In light of the July 2019 Court Order regarding the unadjudicated PTSD claim, the Board remanded the insomnia claim in February 2020 to clarify whether the issue was withdrawn in the hearing. A development letter was sent in March 2020 asking the Veteran for such a clarification. No response was received. (Continued on the next page) The Board finds that in May 2018, prior to the promulgation of a Board decision, the Veteran, via his representative, notified VA that he wanted to withdraw his appeal as to his claim for insomnia. The Board also finds that the withdrawal is (1) explicit; (2) unambiguous; and (3) done with a full understanding of the consequences of such action on the part of the Veteran. See Acree v. O'Rourke, 17-1749; DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Moreover, the Veteran, through his representative, reiterated this intent to the Court of Appeals for Veterans Claims, which promulgated the dismissal as requested. Therefore, there remains no allegation of error of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review it and the appeal, as this issue is dismissed. JOHN J. CROWLEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, Associate 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.