Citation Nr: A21008774 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 200207-61260 DATE: May 4, 2021 ORDER Entitlement to service connection for a cervical spine disability, secondary to service-connected left shoulder strain, is granted. Entitlement to service connection for left ulnar neuropathy, to include as secondary to service-connected left shoulder strain, is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected PTSD, is granted. Entitlement to service connection for bilateral restless leg syndrome, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. REMAND Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. The Veteran's cervical spine disability is caused by his service-connected left shoulder strain. 2. The Veteran's left ulnar neuropathy is caused by his service-connected left shoulder disability. 3. The Veteran's GERD is due his service-connected left shoulder disability is caused by his medication for his service-connected PTSD. 4. The Veteran's bilateral restless leg syndrome is not secondary to service-connected left shoulder strain and otherwise is not related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability, secondary to service-connected left shoulder strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for left ulnar neuropathy, secondary to service-connected left shoulder strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for GERD, secondary to service-connected PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to service connection for bilateral restless leg syndrome, to include as secondary to service-connected PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to March 1998 and on active duty for training (ACDUTRA) from April 2000 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On his February 2020 Notice of Disagreement (NOD), the Veteran selected the direct-review method of appeal. Thus, only the evidence available to the RO at the time of adjudication, and no other, will be considered. See 38 C.F.R. §§ 20.202(b)(1), (c)(1), 20.301. At the outset, the Board wishes to address two points. Firstly, there are several issues on appeal to the Board in the legacy system of appeals, and the Veteran has requested a Board hearing for them. Thus, the adjudication of those issues will come at some future date once the Veteran has been afforded his hearing. See January 15, 2019, VA Form 9; January 6, 2019, Statement of the Case (SOC); January 5, 2019, SOC. Secondly, the Veteran claimed, and the rating decision on appeal adjudicated, the issue of entitlement to service connection for "left ulnar neuropathy secondary to left shoulder." January 27, 2020, Rating Decision; September 25, 2019, VA Form 21-526EZ. On his NOD, however, the Veteran listed that he was appealing, among other things, "bilateral upper neuropathy." Because the Veteran did not initially claim neuropathy of the right upper extremity, VA never adjudicated that issue. Thus, the Board has no jurisdiction to address it now. Should the Veteran believe he is entitled to benefits for such a condition, then he should file the appropriate paperwork with VA. For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war or peacetime, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). To establish secondary service connection, a veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a cervical spine disability, secondary to service-connected left shoulder strain is granted. The Veteran alleges that his cervical spine disability is secondary to his service-connected left shoulder strain. February 7, 2020, NOD; September 25, 2019, VA Form 21-526EZ. The January 2020 decision on appeal listed as favorable findings both that the Veteran had a diagnosed cervical strain and that he was service connected for a left shoulder strain. Those favorable findings are binding on the Board, so it acknowledges that the first two elements of secondary service connection have been established. See 38 U.S.C. § 5104A; Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Thus, only evidence that pertains to the third element will be discussed. In September 2019, the Veteran provided to VA an April 2019 disability benefits questionnaire (DBQ) completed by the Veteran's private physicianDr. K.M.who provided the following opinion: The [V]eteran with chronic and progressive pain and arthritis of his cervical spine, as a direct result from overcompensation of his spinal disc from the lack of mobility in his left shoulder. Human anatomy establishes that the muscles of the rotator cuff do not insert into the neck but the secondary shoulder stabilizers do (levator scapulae and trapezius). It is medically established that when these secondary stabilizers are overstressed for . . . an extended time period, due to poor rotator cuff muscle strength, significant inflammation and muscle spasms occur creating pain that radiates over the trapezius muscle up to the neck. As chronic pain continues in the neck, significant inflammation, due to pain inhibition and decreased mobility of cervical spine develops, causing overcompensation of the spinal discs. Over a period of time, this cycle has now caused failure of the cervical [spine's] vertebrae and spinal discs, as this type of damage is irreparable, leaving the spine to continue deteriorating. Examination finings and radiological findings confirm this medical principle of spinal disc degeneration maturing in its degenerative state due to progressive damage of tendons/muscles and destabilization. *** Based on my review of [the Veteran's] entrance and [exit] exams, his current treatment records, radiological evidence, and my examination findings, it is my professional opinion that the [V]eteran's claimed cervical spine conditions . . . are more likely than not . . . secondary to his current [service-connected] conditions of his left shoulder. No other reasonable condition has been afforded to show a more plausible cause for his cervical spine condition besides natural biomechanics of degenerative conditions as detailed above. In January 2020, VA afforded the Veteran an examination and obtained its own medical opinion, which states that it is "unlikely a shoulder condition that is this mild would or could cause a neck strainespecially since the [V]eteran gives a story dating neck problem back to 1991 (which is unlikely)." Comparing the two medical opinions, the Board affords more probative weight to that of Dr. K.M.'s. Dr. K.M. provided a through and in-depth discussion of how, biomechanically, a left shoulder strain can affect the cervical spine. The opinion contains step-by-step explanations identifying the particular muscle groups and how they are affected at each step of the injury. Dr. K.M. concludes by stating that he believes that the Veteran's condition is at least as likely as not related to the Veteran's left shoulder. On the other hand, the VA examiner is too conclusory. That opinion contends that the Veteran's shoulder condition is "too mild," to cause a neck condition, but he offers no supporting evidence or rationale for that conclusion, except for the fact that VA previously denied an increase for the left shoulder. The VA examiner also comments on the Veteran's credibility, noting that the Veteran also claimed that he has experienced neck pain since 1991. Assessing the credibility of the evidence, however, is a task reserved for the Board, and not within the province of the medical examiner. There is nothing preventing the Veteran from simultaneously alleging alternative theories of entitlement. The main contentions proffered to VA always have been that the Veteran's left shoulder proximately caused his cervical spine condition, and Dr. K.M.'s opinion thoroughly and adequately addresses that point. The VA examiner also failed to address Dr. K.M.'s opinion. Thus, the Board finds that Dr. K.M.'s opinion carries more probative weight and finds that the third element of secondary service connection has been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Because the evidence of record supports the Veteran's claim for entitlement to service connection for a cervical spine disability, as secondary to service-connected left shoulder strain, the Veteran's appeal is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.310. 2. Entitlement to service connection for left ulnar neuropathy, to include as secondary to service-connected left shoulder strain, is granted. The Veteran alleges that he suffers from neuropathy of left upper extremity due to his service-connected left shoulder strain. See September 25, 2019, VA Form 21-526EZ; February 7, 2020, NOD. The Veteran submitted a peripheral nerve DBQ that reported that the Veteran had a diagnosis of left ulnar neuropathy. Dr. K.M. indicated that EMG studies were performed in September and October of 2018. Dr. K.M. stated that medical data confirms the onset of ulnar neuropathy stemming from an impinged nerve in the Veteran's left shoulder. The physician opined that it is at least as likely as not that the Veteran's left ulnar neuropathy is secondary to his service-connected left shoulder disability. The Veteran was also provided a VA examination in November 2019 regarding whether the Veteran has neuropathy of left upper extremity due to his service-connected left shoulder strain. The examiner stated that the Veteran does not have neuropathy of the left upper extremity; rather, he has a left epicondylitis. The examiner indicated that there was no objective evidence of left ulnar neuropathy. The examiner, however, stated that EMG studies of the left upper extremity had not been performed. The DBQ provided by the Veteran's physician states that EMG studies were performed in September and October of 2018 and provided a diagnosis of left ulnar neuropathy. The Board finds that this provides evidence of a current diagnosis of left ulnar neuropathy. As the Veteran has a service-connected left shoulder disability, the final inquiry remaining is whether the Veteran's service-connected left shoulder disability causes his left ulnar neuropathy. The Board finds that the evidence is at least in equipoise regarding whether the Veteran's service-connected left shoulder disability causes his left ulnar neuropathy. The Board finds probative the opinion provided by Dr. K.M. that the Veteran's left ulnar neuropathy is secondary to his service-connected left shoulder disability. The physician supported this opinion by noting that medical data confirms the onset of ulnar neuropathy stemming from an impinged nerve in the Veteran's left shoulder. As it is the only opinion of record that addresses the etiology of the Veteran's left ulnar neuropathy it is entitled significant probative weight. To the extent that the 2019 VA examiner provided a negative nexus opinion, the examiner's opinion is based upon a finding that the Veteran does not have a current diagnosis of left ulnar neuropathy and reported that they had not reviewed the pertinent medical documents reviewed by Dr. K.M.; as such, the 2019 examiner's opinion is afforded no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, the Board finds that Dr. K.M.'s opinion carries more probative weight and finds that the third element of secondary service connection has been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Because the evidence of record supports the Veteran's claim for entitlement to service connection for left ulnar neuropathy, as secondary to service-connected left shoulder strain, the Veteran's appeal is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.310. 3. Entitlement to service connection for GERD, to include as secondary to service-connected PTSD, is granted. The Veteran alleges that his GERD is secondary to his medication taken for his service-connected PTSD. February 7, 2020, NOD; September 25, 2019, VA Form 21-526EZ. The January 2020 decision on appeal listed as favorable findings both that the Veteran had a diagnosis of GERD and that he was service connected for PTSD. Those favorable findings are binding on the Board, so it acknowledges that the first two elements of secondary service connection have been established. See 38 U.S.C. § 5104A; Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Thus, only evidence that pertains to the third element will be discussed. In September 2019, the Veteran submitted a medical opinion from Dr. K.M that states: it is known that certain medications may weaken the lower esophageal sphincter (LES) and slow down the body's digestive system, allowing food to collect in the stomach and causing an increase in gastric acid production causing reflux to occur. Veteran continues to take these medications as treatment for conditions that are considered service connected. It is my professional medical opinion that the Veteran's condition of GERD is more likely (greater than 50 percent) secondary to his medication regiment for his service-connected PTSD. In response to the Veteran's claim a VA medical opinion was obtained in November 2019. The November 2019 VA examiner states the following: Although [V]eteran is diagnosed with GERD, there is no medical information found in claims file to support the claim that GERD is secondary to the [Veteran's] PTSD medications. There is no documentation of which medication is thought to have caused GERD. "Gastroesophageal reflux disease, or GERD, is a digestive disorder that affects the lower esophageal sphincter (LES), the ring of muscle between the esophagus and stomach" (https://www.webmd.com/heartburn-gerd/guide/reflux-disease-gerd-1#1). [T]herefore, no nexus or plausible secondary relationship is established. Upon review of the evidence of record, the Board finds that the weight of the probative evidence of record supports service connection for GERD as secondary to his medication taken for his service-connected PTSD. The Board finds the opinion provided by Dr. K.M. to be significant probative value. The physician discusses review of medical literature that certain medications may weaken the lower esophageal sphincter (LES) and slow down the body's digestive system, allowing food to collect in the stomach and causing an increase in gastric acid production causing reflux to occur. The physician opines that the Veteran's specific medication regiment for his service-connected PTSD at least as likely as not resulted in his current diagnosis of GERD. The Board finds Dr. K.M.'s opinion to be of greater probative value than the opinion provided by the November 2019 VA examiner. The VA examiner states that, because the Veteran did not identify which specific medication he believes to have caused GERD, the medication in fact does not cause GERD. The Veteran need not allege with precision which exact medication he is taking causes GERD; he has claimed that he believes it is attributable to PTSD, so VA should have ensured that it received an opinion that adequately evaluated all his psychiatric medication and whether they can cause or aggravate GERD. Further, the examiner states that "is no medical information found in claims file to support the claim that GERD is secondary to the [Veteran's] PTSD medications." The opinion provided by Dr. K.M was of record at the time of the November 2019 examiner's opinion and is competent medical evidence regarding the etiology of the Veterans GERD. As the November 2019 examiner's opinion does not address the pertinent facts of record, it is afforded little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, the Board finds that Dr. K.M.'s opinion carries more probative weight and finds that the third element of secondary service connection has been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Because the evidence of record supports the Veteran's claim for entitlement to service connection for GERD, as secondary to service-connected PTSD, the Veteran's appeal is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.310. 4. Entitlement to service connection for bilateral restless leg syndrome, to include as secondary to service-connected PTSD, is denied. The Veteran also alleges that his bilateral restless leg syndrome is related to his service-connected PTSD. February 7, 2020, NOD; September 25, 2019, VA Form 21-526EZ. The January 2020 decision on appeal listed as favorable findings both that the Veteran has a diagnosis of bilateral restless leg syndrome and that he is service connected for PTSD. Those favorable findings are binding on the Board, so it acknowledges that the first two elements of secondary service connection have been established. See 38 U.S.C. § 5104A; Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Thus, only evidence that pertains to the third element will be discussed. The Veteran also provided a DBQ by Dr. K.M. for restless syndrome. Dr. K.M. states that it is his "professional medical opinion that [the Veteran's] [restless leg syndrome] condition is more likely than not . . . secondary to his progressive insomnia/PTSD service-related conditions." The physician indicates that medical data confirms the ongoing effect of insomnia as a trigger of abnormal leg movements. VA also obtained its own opinion in November 2019. The examiner stated the following: [Veteran] was seen for restless leg syndrome. "RLS is classified as a sleep disorder since the symptoms are triggered by resting and attempting to sleep, and as a movement disorder, since people are forced to move their legs in order to relieve symptoms. It is, however, best characterized as a neurological sensory disorder with symptoms that are produced from within the brain itself". Considerable evidence also suggests that RLS is related to a dysfunction in one of the sections of the brain that control movement (called the basal ganglia) that use the brain chemical dopamine (https://www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/Fact-Sheets/Restless-Legs-Syndrome-Fact-Sheet). No medical information found for the relationship of PTSD and RLS. [T]herefore no nexus or plausible secondary relationship is established. The Board finds that the probative value of the VA examiner's opinion outweighs that of Dr. K.M.'s for this claim. Dr. K.M. provides a fairly conclusory opinion that the Veteran's restless leg syndrome is related to his insomnia and PTSD. The examiner does not explain how insomnia has been a trigger of abnormal leg movements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The VA examiner, on the other hand, provides a detailed opinion on why restless leg syndrome is best classified as a neurological sensory disorder produced within the brain itself. The VA examiner cited his medical sources that formed the basis of his opinion and stated that the current medical literature does not support finding a relationship between restless leg syndrome and PTSD. Thus, because the Board finds the VA opinion to be more probative than that of Dr. K.M.'s, it likewise finds that the third element of secondary service connection for bilateral restless leg syndrome has not been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. The Veteran has not alleged any direct theory of entitlement, and the Veteran's service treatment records (STRs) likewise show that there is no in-service disease or injury to form the basis for entitlement to service connection on a direct basis. Because the evidence of record does not support the Veteran's claim for entitlement to service connection for bilateral restless leg syndrome, to include as secondary to service-connected PTSD, the Veteran's appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.310. REASONS FOR REMAND Unless the issue or issues on appeal can be granted in full, the Board must remand the appeal to the agency of original jurisdiction (AOJ) for correction of an error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A, if the error occurred prior to the date of the AOJ decision on appeal. The Board may remand for correction of any other error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. The remand must specify the action to be taken by the AOJ. 38 C.F.R. § 20.802(a). 1. Entitlement to service connection for ED, to include as secondary to service-connected PTSD, is remanded. The Board finds that the evidence of record is inadequate to resolve whether the Veteran's ED caused by the medication he takes for PTSD as alleged by the Veteran. February 7, 2020, NOD; September 25, 2019, VA Form 21-526EZ. The Board notes that the Veteran submitted an opinion from Dr. K.M. for the issue of ED. Dr. K.M. provided the following opinion: The [V]eteran with chronic [ED] that was diagnosed during follow up with his chronic PTSD condition. His condition can be attributed to his long history of utilizing anti-depressive and anti-anxiety medications as part of his medication regimen determined by his specialist providers. Current medical literature confirms that chronic use of anti-depressants and anti-anxiety medications are primary leading causes in medication induced [ED]. These mentioned medications are known to cause residual effects that interrupt and cause weakness and numbness of nerve impulses between the brain [and] and the penis and contributes directly to his [ED]. It is my professional medical opinion that the [V]eteran's chronic [ED] is more likely than not... secondary to his medication regimen used in treatment for his chronic and progressive service-related condition of PTSD. Review of the Veteran's entrance and exit examinations, STR, and current medical records do not indicate any risk factors or a more plausible condition for the etiology of this condition. In response, VA secured an opinion in November 2019. The examiner stated that "claims file does not list PTSD medication specific cause of ED, however [V]eteran has a diagnosis of [benign prostatic hyperplasia] that would be more medically accounted for ED. [T]herefore no nexus or plausible secondary relationship is established." The Board finds both opinions to be inadequate. Dr. K.M states that "Review of the Veteran's entrance and exit examinations, STR, and current medical records do not indicate any risk factors or a more plausible condition for the etiology of this condition,"; however, the 2019 examiner indicates that the Veteran's diagnosis of benign prostatic hyperplasia would be more medically accounted for ED. Further, Dr. K.M does not specifically report which of the Veteran's medications for PTSD are thought to have caused this condition; as such, the Board finds the opinion to be inadequate. The Board also finds the opinion provided by the 2019 VA examiner to be inadequate regarding the etiology of the Veteran's ED. The examiner merely states that "the claims file does not list PTSD medication specific cause of ED." However, the examiner does not address the opinion provided by the Veteran's physician or discuss the medication the Veteran is prescribed for his PTSD. Accordingly, the Board finds that a new medical opinion should be obtained to resolve the issue. The AOJ's failure to ensure the adequacy of the medical opinions of record prior to the January 2020 rating decision represents a pre-decisional error in the duty to assist that must be corrected on remand. The matters are REMANDED for the following action: 1. Request an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's erectile dysfunction. The claims file must be sent to the clinician for review. An examination of the Veteran is not necessary, unless otherwise determined by the examiner. The examiner should opine as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's erectile dysfunction is caused by a service-connected disability, to include his PTSD (and his medications taken for this condition). The examiner is asked to consider the DBQ submitted by the Veteran in September 2019. The examiner should provide a complete rationale for any opinions set forth and is advised that the Veteran is competent to report his symptoms and treatment. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.