Citation Nr: 21027176 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 11-31 647A DATE: May 4, 2021 ORDER Service connection for the Veteran's low back disability, as currently diagnosed, is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for shin splints is remanded. Entitlement to service connection for a joint disorder, to include degenerative arthritis of the left index finger interphalangeal joint, is remanded. Entitlement to service connection for a disability manifesting as erectile dysfunction, to include alcohol abuse, is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for genital herpes is remanded. FINDING OF FACT The Veteran has continuously experienced symptoms consistent with his diagnosis of degenerative joint disease of the lumbar spine since service. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran's low back disability, as currently diagnosed, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1983 to December 1987 and from May 1990 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision. The Board remanded this matter in February 2020. As noted in the February 2020 Board remand, the Board denied the Veteran's claims in a May 2018 decision. That decision, however, was vacated pursuant to October 2019 order from the United States Court of Appeals for Veterans Claims (Court). Entitlement to service connection for the Veteran's low back disability, as currently diagnosed, is granted. The Veteran seeks service connection for a low back disability, described as low back pain. He asserts that his low back disability is the result of carrying and lifting heavy equipment while in the military. 10/23/2008, VA 21-4138 Statement in Support of Claim. In November 2020, the Veteran submitted a brief statement from a private treatment provider, indicating that the Veteran's back pain is attributable to service. A September 2020 VA examination shows diagnoses of degenerative arthritis of the spine and intervertebral disk syndrome. The Veteran reported that his low back pain began while he was in boot camp when he was carrying 90-pound bags. He described his symptoms as stiffness and soreness in the lower back, adding he would get a sharp pain in his back and lower hips when standing up. The September 2020 VA examiner opined that the Veteran's low back disability is less likely than not related to service. The examiner's rationale was simply that there are no service treatment records indicating that he was treated for low back pain. This opinion lacks a medical rationale. As such, it is inadequate. Certain chronic diseases, to include arthritis, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In this case, the Veteran has a diagnosis of degenerative joint disease of the lumbar spine. The Veteran has indicated that his current back symptoms began in service, and a private treatment provider has described the Veteran's current back symptoms as attributable to service. The Veteran served in the Marine Corps as a rifleman during his first period of active duty. As such, he is presumed to have undergone strenuous physical training. The Board finds no reason to doubt the veracity of his statements regarding continuous symptoms since service. Based on this evidence, which shows that Veteran's current diagnosis of degenerative joint disease is a progression of symptoms that began in service and have continued since service, service connection for the Veteran's low back disability, as currently diagnosed, is warranted on a presumptive basis. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disability is remanded. 2. Entitlement to service connection for shin splints is remanded. The Veteran seeks service connection for a bilateral knee disability, described as knee pain. He has asserted that his bilateral knee disability is due to running and training on hard pavement during service. He also seeks service connection for shin splints. 10/23/2008, VA 21-4138 Statement in Support of Claim. A September 2020 VA examination shows diagnoses of bilateral knee strain and bilateral shin splints. The Veteran reported that his knee pain and shin splints began in December of 1983 during bootcamp, from marching, running, rucking, bad gear, and running in boots on hard surface marches, adding that his knees would give out and his shin splints would hurt to the point that he could not walk. The VA examiner, however, opined that the Veteran's diagnoses are less likely than not related to service. The examiner's rationale was simply that "there are no service treatment records to support that his [bilateral knee strain and bilateral shin splints] were due to his time in service." This opinion does not contain a medical rationale. Rather, it relies solely on the absence of corroborating evidence to rule out a nexus. Moreover, the opinion does not show adequate consideration of the relevant evidence, particularly the Veteran's reports of symptoms since service. 3. Entitlement to service connection for a joint disorder, to include degenerative arthritis of the left index finger interphalangeal joint, is remanded. The Veteran has indicated that he has serious joint problems. 10/23/2008, VA 21-4138 Statement in Support of Claim. Based on this assertion, the issue of entitlement to service connection for a joint disorder is for consideration. A September 2020 VA examination indicates that the Veteran has degenerative arthritis affecting his lumbar spine and left index finger interphalangeal joint. The examiner opined that these diagnoses were less likely than not due to the Veteran's genital herpes, as there was no evidence that the Veteran was treated for genital herpes in service. The examiner acknowledged that the Veteran had been treated for gonorrhea in July 1986 and that "gonococcal arthritis is a possibility but not arthritis due to herpes." The Veteran has not provided detailed information of what joints are encompassed by his claimed joint disability. As such, the Board will liberally construe this issue and presume that all current diagnoses, such as those noted in 2020 examination report, pertaining to a joint disorder are encompassed by the Veteran's claim. Service connection has now been established for the lumbar spine degenerative joint disease. The Board will therefore focus on the degenerative arthritis affecting his lumbar spine and left index finger interphalangeal joint. The September 2020 VA examiner focused on whether the degenerative arthritis is related to Veteran's genital herpes. As such, the examiner did not consider the extent to which this diagnosis is directly related to service or secondary to a service-connected disability. This deficiency compromises the Veteran's right to a decision that is based on an adequate record, to include an adequate VA examination. For this reason, another VA examination is warranted. 4. Entitlement to service connection for a disability manifesting as erectile dysfunction, to include alcohol abuse, is remanded. The Veteran seeks service connection for erectile dysfunction. 10/23/2008, VA 21-4138 Statement in Support of Claim. In February 2020, the Board remanded for a supplemental medical opinion. The examiner was asked to consider whether the Veteran's erectile dysfunction is at least as likely as not secondary to either his service-connected mental health disability or his service-connected traumatic brain injury (TBI), to include consideration of a medical opinion stating that the Veteran's erectile dysfunction is due to alcohol and tobacco use, and the Veteran's assertion that he self-medicated his service-connected TBI by drinking alcohol. In September 2020, a VA examiner opined that the Veteran's erectile dysfunction is less likely than not related to service or secondary to a service-connected disability. Regarding direct service connection, the examiner's rationale was that there no service treatment records indicating that the Veteran had erectile dysfunction. Regarding secondary service connection, the examiner explained that the Veteran developed erectile dysfunction as a result of his long-standing history of alcohol abuse, a history that dates back to 1980s while in service. Regarding the theory that the erectile dysfunction could have been caused or aggravated by the Veteran's service-connected mental health disability or his service-connected traumatic brain injury (TBI), the examiner noted that medical records show that the Veteran is able to obtain an erection with Viagra, an effect he would not obtain if his erectile dysfunction was secondary to his mental health disability or TBI. The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). In this case, there is evidence of record suggesting that the Veteran's erectile dysfunction is secondary to his history of alcohol abuse. There is also an indication that this history of alcohol abuse is secondary to his service-connected TBI. This evidence raises the issue of service connection for his history of alcohol abuse. VA's General Counsel Opinion 6-2003 recognizes that 38 U.S.C. § 1103(a) and 38 C.F.R. § 3.300(a) prohibit service connection for any condition that is attributable to a veteran's use of tobacco during service. However, it also states that the "plain language of the statute and regulation do not bar the finding of secondary service connection for a disability related to the veteran's use of tobacco products after the veteran's service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the veteran's use of tobacco products during service." Id. The questions that must be resolved with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to the Veteran's use of tobacco products during service are: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. Id. As this issue is encompassed by the claim of service connection for erectile dysfunction, it is properly before the Board, and the appropriate course of action is to remand it for development and initial adjudication. See Grimes v. McDonough, No. 18-1017, 2021 U.S. App. Vet. Claims LEXIS 742 (Vet. App. Apr. 28, 2021). 5. Entitlement to service connection for a skin disorder is remanded. The Veteran seeks service connection for a skin disorder. 10/23/2008, VA 21-4138 Statement in Support of Claim. At a September 2020 VA skin examination, the Veteran reported that his claimed skin condition began during service. He recalled that he was bitten by a spider during an outdoor training. He explained that he still gets itchy, patchy, dry skin. The examiner, however, concluded that that there was no current diagnosis, because the Veteran's condition had resolved in service. A claim includes any disabilities experienced during the appeal period, to include disabilities that manifest sporadically or resolve during the appeal period. In this case, a June 2009 VA examination shows a diagnosis of allergic reaction to insect bites. It was noted that the condition was constant and regarding would last approximately 2 to 3 months with continuous drainage and permanent scarring. In a November 2011 statement, the Veteran described his symptoms as an exaggerated reaction to any type of insect bite. Additionally, a February 2009 statement from the Veteran's spouse suggests that the Veteran's skin disability has a seasonal aspect, as it either manifests or worsens during spring and summer. In view of this evidence that shows a skin disability during the appeal period, the Board finds that the September 2020 VA examination is inadequate and a remand for an addendum is needed. 6. Entitlement to service connection for genital herpes is remanded. The Veteran seeks service connection for genital herpes. He asserts that he was exposed to genital herpes during naval operations in the fall of 1985. 10/23/2008, VA 21-4138 Statement in Support of Claim. A September 2020 VA examination shows a diagnosis of genital herpes. The examiner opined that it less likely than not that the Veteran's herpes was incurred in service. The examiner's rationale was that service treatment records did not show treatment for genital herpes. The examiner noted that service treatment records showed treatment for gonorrhea and chlamydia in July 1986 and conceded that it is possible that the Veteran was exposed to the herpes virus in service, but stressed that there are no records of treatment for herpes in or since service. The September 2020 VA opinion lacks a medical rationale and relies solely on the absence of corroborating evidence to rule out a nexus. As such, it is inadequate. *** The February 2020 Board remand instructed the Agency of Original Jurisdiction (AOJ) to assist the Veteran in obtain outstanding private treatment records. Some of these records have been obtained. The AOJ, however, was unable to obtain records from two private providers. See 04/27/2020 to 05/11/2020, VA 21-0820 Reports of General Information & Notification Letters. Efforts to obtain these records were made in late April and early May of 2020, amid the Coronavirus national health emergency. As it is possible that the pandemic affected the ability of this private providers to fulfill the AOJ's request for records, the Board finds that, on remand, the AOJ should make an additional effort to obtain these records. These matters are REMANDED for the following actions: 1. Take appropriate action to obtain any outstanding private treatment records, to include records from Dr. K and Dr. S. See VA 21-0820 Reports of General Information & Notification Letters from April/May 2020. If need, obtain updated authorization from the Veteran. Document the file with all requests and responses. 2. After completing #1, schedule the Veteran for a VA examination for bilateral knee/shin disabilities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: For any current diagnosis, is it at least as likely as not related to service, including the cumulative effect (wear and tear) of strenuous physical activity during service? Provide a comprehensive rationale to support any opinion. In providing the requested opinion, consider the Veteran's description of his in-service injuries and symptoms as well as his post-service symptoms. In this regard, the Veteran has reported knee and shin symptoms since service. To the extent possible, the examiner should try to elicit from the Veteran a detailed history of his symptoms and any treatment received. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. After completing #1, schedule the Veteran for a VA examination for his claimed joint disorder, to include his degenerative arthritis of the left index finger interphalangeal joint. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: For any current diagnosis, is it at least as likely as not related to service, including the cumulative effect (wear and tear) of strenuous physical activity during service? Alternatively, is at least as likely as not (a) proximately due to a service-connected disability or (b) aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? Provide a comprehensive rationale to support any opinion. In providing the requested opinion, consider the Veteran's description of any in-service injuries and symptoms as well as his post-service symptoms. To the extent possible, the examiner should try to elicit from the Veteran a detailed history of his symptoms and any treatment received. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. After completing #1, schedule the Veteran for a VA examination for the issue of service connection for disability manifesting as erectile dysfunction, to include alcohol abuse. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's erectile dysfunction (a) was caused OR (b) is, or has been, aggravated (worsened beyond natural progression) by his service-connected depressive disorder and/or TBI organic brain syndrome and blackouts. The opinion provider should also provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's alcohol use (a) was caused OR (b) is, or has been, aggravated (worsened beyond natural progression) by his service-connected depressive disorder/TBI. If the opinion provider determines that the Veteran's alcohol use was not caused or aggravated by his service-connected depressive disorder/TBI, the opinion provider is to also provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected depressive disorder/TBI caused him to use, or increase the use of, alcohol. If the Veteran's service-connected depressive disorder/TBI did likely cause him to use, or increase the use of, alcohol products, the opinion provider should also provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the use of alcohol products were a substantial factor in causing his erectile dysfunction, such that the erectile dysfunction would not have occurred but for the use of alcohol products related to depressive disorder/TBI. The opinion is to show consideration of the relevant evidence, to include the October 2008 statement of the Veteran that self medicated by drinking a lot of alcohol. Provide a comprehensive rationale to support any opinion. In providing the requested opinion, consider the Veteran's assertion that he self-medicated his service-connected TBI by drinking alcohol. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 5. After completing #1, schedule the Veteran for a VA examination for his claimed skin disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: For any current diagnosis (to include any condition that has resolved during the appeal period), is it at least as likely as not related to an injury, disease, or event in service? Provide a comprehensive rationale to support any opinion. In providing the requested opinion, consider the Veteran's description of any in-service injuries and symptoms as well as his post-service symptoms. There is some indication that the Veteran's disability is seasonal (spring and summer). The Veteran asserts that his current disability, which appears to be an allergic reaction to insect bites, is due to a spider bite in service. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 6. After completing #1, schedule the Veteran for a VA examination for his genital herpes. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: For any current diagnosis, is it at least as likely as not related to an injury, disease, or event in service? Provide a comprehensive rationale to support any opinion. In providing the requested opinion, consider the Veteran's description of any in-service injuries and symptoms as well as his post-service symptoms. To the extent possible, the examiner should try to elicit from the Veteran a detailed history of his symptoms and any treatment received. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.