Citation Nr: 21029722 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-39 080 DATE: May 14, 2021 ORDER Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a skin condition (claimed as chloracne), to include as due to herbicide exposure is remanded. FINDINGS OF FACT 1. The Veteran's erectile dysfunction is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had peripheral neuropathy of the bilateral upper extremities at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had peripheral neuropathy of the bilateral lower extremities at any time during or approximate to the pendency of the claim CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 decision. The Veteran presented testimony before the Board in February 2020. The matters were previously before the Board in March 2020. Service Connection Entitlement to service connection for erectile dysfunction The Veteran contends that he has erectile dysfunction caused by diabetes mellitus. Service connection has not been established for diabetes mellitus. See December 2020 rating decision. Thus, service connection may not be established for erectile dysfunction on a secondary causation basis. 38 C.F.R. § 3.310. The Veteran does not contend, nor does the evidence of record support a finding, that his erectile dysfunction was incurred in service. Notably, there was no evidence of erectile dysfunction in service or any competent evidence that the disability was related to his active military service. While the Veteran has not been afforded a VA examination in connection with his erectile dysfunction claim, the Board finds that an opinion is not necessary. McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). There is no evidence of erectile dysfunction in service and no indication that he currently has erectile dysfunction that is related to active service. As indicated previously, the Veteran has set forth no specific contentions of service incurrence and even if he had, his own broad and conclusory statements that the condition developed in service is not sufficient to trigger VA's obligation to obtain an opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (conclusory lay assertion of nexus is insufficient to entitle claimant to VA medical examination). Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for erectile dysfunction, must be denied. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities During the February 2020 Board hearing, the Veteran claimed that his peripheral neuropathy of the bilateral upper and lower extremities was caused by diabetes mellitus. Service connection has not been established for diabetes mellitus. See December 2020 rating decision. Thus, service connection may not be established on a secondary causation basis. 38 C.F.R. § 3.310. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In addition, certain chronic diseases, such as other organic diseases of the nervous system, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. VA has established a presumption of exposure to herbicide agents for veterans who served in Vietnam during the Vietnam Era, like the Veteran in the instant case. See 38 U.S.C. § 1116 (a)(1)(B); 38 C.F.R. § 3.307 (a)(6)(i), (ii). Early onset peripheral neuropathy is recognized as a disease associated with exposure to "herbicide agents." 38 C.F.R. § 3.309 (e). The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden, supra; Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); 38 C.F.R. § 3.303 (a). The Board concludes that the Veteran does not have a current diagnosis of peripheral neuropathy of the bilateral upper or lower extremities and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is also no evidence of record that complaints of numbness and tingling in the extremities has reached a level of a functional impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020) (held that Saunders is not limited to pain, such that a disability for VA purposes includes any condition that results in functional impairment of earning capacity.) While the Veteran believes he has a current diagnosis of peripheral neuropathy of the upper and lower extremities, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Though the Veteran has not been afforded a VA examination in connection with his claims, the Board finds that an opinion is not necessary as there is no current diagnosis in the medical records associated with the file, to include over 20 years of VA treatment records dated between 2005 and 2020. Since the preponderance of the evidence is against the claims, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran's claims of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, must be denied. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. As indicated in the March 2020 Board remand, the Veteran filed a claim for posttraumatic stress disorder (PTSD) in February 2020. During the Board hearing, the Veteran claimed that his sleep apnea was secondary to PTSD. While the RO began developing the claim and afforded the Veteran a PTSD examination in August 2020, the claim has yet to be adjudicated. Thus, the Veteran's claim of secondary service-connection for sleep apnea is premature and deferred pending adjudication of the claim for PTSD. Entitlement to service connection for a skin condition, to include as due to herbicide exposure is remanded. The issue of service connection for a skin condition (claimed as chloracne) is not ready for appellate disposition. The Veteran contends that he has a skin condition as result of herbicide exposure in the Republic of Vietnam (RVN). A review of medical records shows treatment for irritated skin tags, seborrheic keratosis, vitiligo, and fungal infections of the skin recent to filing the claim. In March 2020, the Board remanded the matter to obtain an etiology opinion. While the Veteran was afforded a VA skin examination in March 2020 and an addendum opinion was rendered in May 2020, the opinion is inadequate as no rationale was provided for the opinion that "current diagnoses were less likely than not incurred in or caused by illness or injury in service, to include herbicide exposure during service. Therefore, on remand, an addendum opinion must be obtained. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's irritated skin tags, seborrheic keratosis, vitiligo, and fungal infections of the skin, noted in the record recent to filing the claim, are at least as likely as not related to the Veteran's in-service exposure to herbicide agents? The complete rationale for all opinions expressed must be provided. The examiner is advised that a negative opinion cannot be based solely on the fact that the skin disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. 2. Thereafter, and after adjudication of the claim for service connection for PTSD, readjudicate the claims considering all the evidence of record. If upon completion of the above action the issues remain denied, the matters must be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.