Citation Nr: 21032016 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-32 415 DATE: May 25, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for glaucoma, to include as due to Gulf War environmental exposure or secondary to hypertension, is denied. Entitlement to a disability rating in excess of 40 percent for service-connected varicose veins of the right lower extremity is denied. Entitlement to a disability rating in excess of 40 percent for service-connected varicose veins of left lower extremity is denied. REMANDED Entitlement to service connection for erectile dysfunction, to include as due to Gulf War environmental exposure, is remanded. Entitlement to service connection for peripheral neuropathy/radiculopathy of the left leg and foot is remanded. Entitlement to service connection for peripheral neuropathy/radiculopathy of the right leg and foot is remanded. Entitlement to service connection for right knee ligament and nerve damage is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected left knee strain is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected right knee strain is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected lumbar spine degenerative joint disease (DJD) is remanded. Entitlement to special monthly compensation (SMC) due to loss of use of a creative organ is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that hypertension began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that glaucoma began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran's right lower extremity varicose veins do not manifest with persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. 4. The Veteran's left lower extremity varicose veins do not manifest with persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. CONCLUSIONS OF LAW 1. 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. 2. The criteria for service connection for glaucoma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a rating in excess of 40 percent for service-connected right lower extremity varicose veins have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7199-7120. 4. The criteria for a rating in excess of 40 percent for service-connected left lower extremity varicose veins have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7199-7120. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1973 to November 1997. In December 2018, the Board remanded the claims for additional development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 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). 1. Entitlement to service connection for hypertension is denied. The Veteran contends that he has hypertension that is etiologically related to active duty service. 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. The Board concludes that, while the Veteran has a current diagnosis of hypertension, and evidence shows that several in-service instances of elevated blood pressure occurred, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of hypertension began during service or is otherwise related to an in-service injury, event, or disease. Post-service medical treatment records show the Veteran was not diagnosed with hypertension until 2004, years after his separation from service. While the Veteran is competent to report having experienced symptoms of elevated blood pressure intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of hypertension. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the November 2019 VA examiner opined that the Veteran's hypertension is not at least as likely as not related to an in-service injury, event, or disease, including elevated in-service blood pressure readings. The rationale was that the Veteran's historical medical records lack evidence of sustained elevated blood pressure readings necessary to diagnose hypertension. With respect to the specific readings identified by the Board, the examiner explained that the 1998 blood pressure reading was taken at the same time the Veteran was being treated with medication for congestion, cough, and sore throat, all of which can temporarily elevate blood pressure. The Veteran's blood pressure readings taken in 1999 were noted to be more than one year after his separation from service. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his hypertension began during active duty, specifically that he was first diagnosed in 1992. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the November 2019 VA examination and opinion. 2. Entitlement to service connection for glaucoma is denied. The Veteran contends that his glaucoma is etiologically due to active duty service, to include as an undiagnosed illness related to Gulf War service. Alternatively, he contends that his glaucoma is secondary to hypertension. 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. The Board concludes that, while the Veteran has a current diagnosis of glaucoma, and evidence shows that the Veteran had Gulf War service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of glaucoma represents an undiagnosed illness related to Gulf War service. The preponderance of the evidence also weighs against finding that the Veteran's glaucoma is secondary to a service-connected disability. Post-service medical treatment records show the Veteran was not diagnosed with glaucoma until roughly 2009, years after his separation from service. While the Veteran is competent to report having experienced eye-related symptoms intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of glaucoma. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In January 2011, a VA examiner confirmed the Veteran's glaucoma diagnosis and opined that there were several risk factors for glaucoma including hypertension, and also stated that chemical and environmental hazards, such as those attributable to the Gulf War, are not risk factors for glaucoma. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The evidence does not demonstrate, nor does the Veteran allege, any other active duty etiology of his glaucoma. With respect to possible secondary service connection, the Board previously remanded the issue as inextricably intertwined with the Veteran's hypertension service connection claim. The January 2011 examiner explicitly identified hypertension as a risk factor for the Veteran's glaucoma. However, as stated above, the November 2019 VA medical opinion established that the Veteran's hypertension does not warrant service connection. Therefore, the Veteran's glaucoma does not warrant secondary service connection on this basis. The Veteran believes his glaucoma is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent medical evidence of record, including the January 2011 examination. Increased Rating 1. Entitlement to an increased rating for service-connected varicose veins of the right lower extremity is denied. 2. Entitlement to an increased rating for service-connected varicose veins of the left lower extremity is denied. The Veteran contends that he is entitled to a higher rating for left and right lower extremity varicose veins. The Veteran's varicose veins, right and left lower extremities, are rated under Diagnostic Code 7120 for varicose veins. Under the provisions of Diagnostic Code 7120 (varicose veins), a 40 percent rating is assigned where there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A higher 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is assigned for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7120 An October 2010 VA examination documents the Veteran's diagnosis of bilateral lower extremity varicose veins. The symptoms associated with this condition were identified as edema, statis pigmentation, and eczema. The Veteran's contemporaneous and subsequent medical treatment records regularly document bilateral lower extremity varicose veins with pain, but do not demonstrate further symptomatology. The Veteran next underwent a VA examination for varicose veins in November 2019. The examination identifies symptoms of the bilateral lower extremities including intermittent edema, persistent edema that is incompletely relieved by elevation, and persistent edema. Additional identified symptoms include moderate skin changes and venous insufficiency of the feet bilaterally. The Veteran has stated on multiple occasions throughout this appeal that he believes the severity of his bilateral lower extremity varicose veins warrant a disability rating of 50 percent or higher. However, the Veteran has not described any symptoms that could indicate persistent ulceration or massive board-like edema with constant pain at rest. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for the Veteran's right and left lower extremity varicose veins. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction is remanded. The Board cannot make a fully informed decision on the issue of erectile dysfunction because no VA examiner has adequately opined whether the Veteran's erectile dysfunction is etiologically due to environmental exposures associated with his active duty service in the Gulf War. The December 2010 VA Gulf War examination identifies the Veteran's diagnosis of erectile dysfunction. A January 2011 VA medical opinion appears to state that erectile dysfunction was not due to Gulf War exposures, but the only rationale provided is that the most likely factors are hypertension and psychogenic factors. Not only is it not clear that the opinion is referring to erectile dysfunction, but the rationale provided is inadequate as it merely states that there are other factors that likely cause erectile dysfunction without distinguishing these factors from the environmental exposures of Gulf War service. Remand is needed for a clarifying addendum opinion on this issue. 2. Entitlement to service connection for peripheral neuropathy/radiculopathy of the left leg and foot is remanded. 3. Entitlement to service connection for peripheral neuropathy/radiculopathy of the right leg and foot is remanded. 4. Entitlement to service connection for right knee ligament and nerve damage is remanded As discussed below, the Veteran's increased rating claims for his service-connected bilateral knee strains are being remanded. Because a decision on the increased rating claims being remanded could significantly impact a decision on the above three service connection issues, these issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of these three issues must be deferred. 5. Entitlement to a disability rating in excess of 10 percent for service-connected left knee strain is remanded. 6. Entitlement to a disability rating in excess of 10 percent for service-connected right knee strain is remanded. While the record contains a contemporaneous VA examination regarding the Veteran's left and right knee strains, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In a November 2019 VA examination, the examiner indicated that range of motion testing for the Veteran's knees was not possible due to his back pain. However, the examiner also indicated that the Veteran does experience flare-ups of both knees. The Veteran's own description of flare-ups state that there is variable loss in range of motion during flare-ups. However, the examiner does not appear to have used this information to provide an estimation for further loss in range of motion or attempt to elicit additional relevant information regarding the description of the Veteran's flare-ups and functional loss suffered during flare-ups. Therefore, a new examination is required. 7. Entitlement to a disability rating in excess of 20 percent for service-connected lumbar spine degenerative joint disease is remanded. While the record contains a contemporaneous VA examination regarding the Veteran's lumbar spine condition, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In a November 2019 VA examination, the examiner indicated that the Veteran was experiencing a flare-up but opined that he was not able to provide an estimate of further loss in range of motion. The Board notes that the Veteran's own description of flare-ups indicates that the limitation to range of motion is variable during flare-ups, suggesting that the limitation may be more severe than documented on the examination. However, the examiner does not appear to have used this information to provide an estimation for further loss in range of motion or attempt to elicit additional relevant information regarding the description of the Veteran's flare-ups and functional loss suffered during flare-ups. Therefore, a new examination is required. 8. Entitlement to SMC due to loss of use of a creative organ is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for erectile dysfunction could significantly impact a decision on the issue of entitlement to SMC based on loss of use of a creative organ, the issues are inextricably intertwined. Further consideration of this issue must be deferred. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, or schedule the appropriate examination if necessary, from an appropriate clinician regarding whether the Veteran's erectile dysfunction is at least as likely as not related to environmental exposures as a result of his active duty service during the Gulf War period. If the Veteran's erectile dysfunction is more likely the result of other factors, the examiner must specifically discuss what those factors are and provide an explanation for any conclusion reached. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee strains. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine degenerative joint disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for peripheral neuropathy/radiculopathy of the bilateral lower extremities, entitlement to service connection for right knee ligament and nerve damage, and entitlement to SMC for loss of use of a creative organ. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. J. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.