Citation Nr: 22018014 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 11-32 035 DATE: March 27, 2022 ORDER Entitlement to service connection for leg condition (also claimed as a knee condition) is denied. Entitlement to service connection for erectile dysfunction as secondary to service-connected diabetes mellitus, is granted. REMANDED Entitlement to service connection for a heart disease, to include coronary artery disease (CAD)/ischemic heart disease (IHD), congestive heart failure, and hypertensive heart disease, for purposes of retroactive benefits, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for a skin rash, to include as due to asbestos exposure and as secondary to service-connected disabilities, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran's bilateral knee conditions are not shown to have been present in service or etiologically related to the Veteran's active service; nor secondary to his service-connected PTSD. 2. The evidence is in equipoise as to whether the Veteran's erectile dysfunction is secondary to his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for a leg condition (knee conditions) have not been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from March 1966 to January 1970, with subsequent service in the National Guard. In May 2017, the Veteran and his spouse testified at a Board hearing. A transcript is of record. In April 2018 and June 2021, this appeal was remanded for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service 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). Leg Condition At the onset, the Board notes that the Veteran has diagnoses of right knee meniscal tear, bilateral knee degenerative arthritis, and bilateral knee replacements, thus the first element of service connection, a current disability, is satisfied. See September 2021 VA examination report. However, the Board notes that the record is silent for an in-service occurrence or injury related to the Veteran's bilateral knee disabilities. Specifically, the Veteran's service treatment records are silent for any complaints, treatment, or diagnoses related to bilateral knee disabilities. In fact, the Veteran's separation examination report is silent for any complaints, treatment or diagnoses related to bilateral knee conditions. At separation, the Veteran reported no issues with locked or tricked knees. The Veteran's separation examination report noted that the Veteran's lower extremities were clinically normal. See November 1969 report of medical examination. The Board acknowledges that during the September 2021 VA examination, the Veteran reported that the onset of his knee pain was during service. However, while the Board does not doubt the sincerity of the Veteran's current belief that his knee pain has been present since his years in service, the evidence contains some inconsistencies that diminish the reliability of the Veteran's current recollections. As here, at separation, the Veteran did not report any knee problems and his lower extremities were determined to be clinically normal. Thus although, the Veteran in September 2021 reported an onset of knee pain in service, the Board finds that this statement conflicts with his previous statement at separation and the medical evidence at separation, which both reflect no issues with the knees. Based on the Veteran's conflicting statements, the Board finds that the Veteran is not credible to the extent that he reports the onset of his knee pain. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.). Therefore, without probative evidence of an in-service occurrence or injury related to the Veteran's bilateral knee disabilities, the second element of service connection is not satisfied. Given such, direct service connection cannot be established. The Board has also considered whether the Veteran is entitled to service connection for a chronic disease. Although arthritis is one of the listed chronic diseases, since the Veteran did not have a diagnosis of arthritis within one year of his separation of service, he cannot establish service connection on a presumptive basis for a chronic disease. As here the Veteran was first diagnosed with arthritis in 2015, and thus it cannot be established that arthritis was shown to be manifest to a degree of 10 percent or more within one year following a Veteran's separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.307, 3.309. The Board notes that when a veteran is found not to be entitled to direct service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In this respect, the Board notes that the Veteran contends that his bilateral knee disabilities are secondary to his service-connected PTSD. As stated above, the first element of secondary service connection requires evidence of a current disorder. As discussed earlier, the Veteran has diagnoses of right knee meniscal tear, bilateral knee degenerative arthritis, and bilateral knee replacements. Thus, the Veteran has satisfied the first element of secondary service connection. The second element of secondary service connection requires evidence of a service-connected disability. The evidence of record reflects that the Veteran has been service connected for PTSD. Thus, the Veteran has satisfied the second element of secondary service connection. Lastly, the third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder. Here, the Board finds that the probative evidence is against a finding that the Veteran's bilateral knee disabilities are secondary to his service-connected PTSD. In a September 2021 VA medical opinion, the VA examiner opined that the Veteran's bilateral knee disabilities are less likely than not caused by the Veteran's PTSD. The VA examiner explained that the conditions of bilateral leg condition and PTSD are not medically related. The VA examiner noted that the bilateral leg conditions are a separate entity entirely from PTSD and unrelated to it. The VA examiner explained that "[a]rthritis is derived from the Greek term "disease of the joints." Thus, the VA examiner explained it is defined as an acute or chronic joint inflammation that often co-exists with pain and structural damage. Arthritis is not synonymous with arthralgia, which refers to pain localized to a joint, regardless of the origin of the pain (which may or may not be due to joint inflammation). The VA examiner noted that the most common arthritis being osteoarthritis or degenerative arthritis, as is the case here, which is non-inflammatory arthritis. Inflammatory arthritis can occur in several settings, and inflammation can be caused by autoimmune processes (rheumatoid arthritis, psoriatic arthritis, ankylosing spondylitis, etc.), crystal deposition induced inflammation (gout, pseudogout, basic calcium phosphate disease) or infections (septic arthritis, Lyme's arthritis). Inflammatory arthritis can also accompany other autoimmune connective tissue diseases such as systemic lupus erythematosus, Sjogren syndrome, scleroderma, myositis, inflammatory bowel disease, celiac disease, etc. Thus, the etiology of arthritis varies with the type of arthritis. In osteoarthritis, the major contributory factors include advancing age, female sex, joint trauma, and obesity. Also, some genetic factors have been described such as mutations in genes encoding types II, IV, V, and VI collagens." Thus, the VA examiner concluded that the Veteran's non-inflammatory arthritis, is not secondary to his PTSD. Therefore, the Board finds that the Veteran's bilateral knee disabilities are not secondary to his PTSD. Given such, the Board finds that the third element of secondary service connection has not been established. The Board acknowledges that the Veteran contends that VA links arthritis to PTSD. See June 2017 correspondence. The Board has reviewed the articles submitted by the Veteran. The Board acknowledges that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must "not simply provide speculative generic statements not relevant to the [claimant]'s claim." Wallin, 11 Vet. App. 509, 514. Instead, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive). Here, the articles do not pertain to the Veteran specifically. Furthermore, the articles submitted by the Veteran do not discuss whether arthritis is caused by or aggravated by PTSD. As such, the Board finds this information to not be relevant as to the matter for consideration, and, therefore, is not probative to this case. As the probative evidence is not in approximate balance, the benefit-of-the-doubt doctrine is not applicable, and his claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Erectile Dysfunction At the onset, the Board notes that the Veteran has a diagnosis of erectile dysfunction, thus the first element of service connection, a current disability, is satisfied. See March 2020 VA examination report. However, the Board notes that the record is silent for an in-service occurrence or injury related to the Veteran's erectile dysfunction. Specifically, the Veteran's service treatment records are silent for any complaints, treatment, or diagnoses related to erectile dysfunction. In fact, the Veteran's separation examination report is silent for any complaints, treatment or diagnoses. The Veteran's separation examination report noted that the Veteran's vascular system, endocrine system and rectum were clinically normal at separation. See November 1969 report of medical examination. Furthermore, during the March 2020 VA examination, the Veteran reported that his erectile dysfunction began eight years prior. Thus, even by the Veteran's statements, his erectile dysfunction did not have an onset during service. Therefore, without probative evidence of an in-service occurrence or injury related to the Veteran's erectile dysfunction, the second element of service connection is not satisfied. Given such, direct service connection cannot be established. The Board notes that when a veteran is found not to be entitled to direct service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In this respect, the Board finds that the evidence is in equipoise as to whether the Veteran's erectile dysfunction is secondary to his service-connected diabetes mellitus. As stated above, the first element of secondary service connection requires evidence of a current disorder. In a March 2020 VA examination report for male reproductive systems, the VA examiner confirmed a diagnosis of erectile dysfunction. Thus, the Veteran has satisfied the first element of secondary service connection. The second element of secondary service connection requires evidence of a service-connected disability. The evidence of record reflects that the Veteran has been service connected for diabetes. Thus, the Veteran has satisfied the second element of secondary service connection. Lastly, the third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder. Here, in a March 2020 VA examination report, the VA examiner opined that the Veteran's erectile dysfunction is less likely than not related to his service and more likely than not related to his hypertension. However, the VA examiner also noted that the etiology of the Veteran's erectile dysfunction includes a long history of impaired fasting glucose, prediabetes, and diabetes. Based on the foregoing, the Board finds the VA examiner's opinion, which notes that the etiology of the Veteran's erectile dysfunction includes his history of diabetes, supports a finding that the Veteran's erectile dysfunction is at least as likely as not proximately due to or a result of his service-connected diabetes. Thus, the third element of secondary service connection is satisfied. Accordingly, the claim is granted. See 38 U.S.C. § 5107. REASONS FOR REMAND Heart Disease With respect to the Veteran's claim for heart disease, the Board finds that a remand is warranted to obtain an addendum opinion that addresses whether the Veteran's heart conditions are related to his conceded exposure to herbicide agents. In June 2021, the Board remanded this issue to (1) ascertain whether the Veteran's heart diseases are of ischemia pathology and (2) determine whether the Veteran's heart disease are related to his service. In the present case, the Veteran's military personnel records confirm in-country service in the Republic of Vietnam during the Vietnam Era. Thus, the Veteran's exposure to herbicide agents has been conceded. The Board notes that the September 2021 VA examiner opined that the Veteran's current diagnoses of congestive heart failure, valvular heart disease, cardiomyopathy, and hypertensive heart disease are not of ischemia pathology and are not related to his service. Although the Board finds that because these heart diseases are not of ischemia pathology, the heart diseases are not presumptively related to the Veteran's exposure to herbicide agents, the VA examiner did not address whether the Veteran's current heart diseases are directly related to the Veteran's conceded exposure to herbicide agents. Given such, an addendum opinion is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Hypertension The Board finds that a remand is warranted because the September 2021 VA medical opinion is inadequate, as the September 2021 VA examiner is inconclusive. Also, the Board finds that remand is warranted to obtain a medical opinion that address the Veteran's recent contention that his hypertension is related to his conceded exposure to herbicide agents and as secondary to his service-connected diabetes. Specifically, in June 2021, the Board remanded this issue in order to obtain a medical opinion that addresses whether the Veteran's hypertension is related to his service-connected PTSD. In the September 2021 VA medical opinion, the VA examiner noted that risk factors for hypertension include stress and diabetes, but opined, without an adequate rationale, that the Veteran's hypertension is not secondary to his PTSD. The VA examiner also noted another risk factor includes diabetes. Thus, it is unclear whether the Veteran's hypertension is secondary to his service-connected diabetes. Furthermore, the VA examiner noted that the Veteran has a history of many risk factors that contribute to hypertension, without identifying the Veteran's specific risk factors, but the VA examiner ultimately concluded that he is unable to determine which of the comorbidities lead to the Veteran's hypertension. Given that the September 2021 VA medical opinion notes that stress and diabetes are risk factors of hypertension, but ultimately concludes an opinion as which of the comorbidities led to the Veteran's hypertension cannot be provided, without an adequate rationale as to the basis of this conclusion, is inadequate. Consequently, an addendum opinion is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). In a February 2022 appellate brief, the Veteran recently contends that his hypertension is related to his exposure to herbicide agents and secondary to his service-connected diabetes mellitus. The Veteran contends that there is now "sufficient" evidence of an association between hypertension and exposure to herbicide agents. Given such, the Board finds an opinion is warranted to address these contentions. Robinson v. Mansfield, 21 Vet. App. 545 (2008)( VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant). Skin Rash The Board finds that a remand is warranted as the September 2021 VA medical opinion did not address whether the Veteran's exposure to sunlight during service is related to his skin condition. Also, the Board finds that remand is warranted to obtain a medical opinion that addresses the Veteran's recent contention that his skin condition is related to his conceded exposure to herbicide agents and as secondary to his service-connected diabetes. In a September 2021 VA medical opinion, the VA examiner opined that the Veteran's skin condition is less likely than not related to exposure to asbestos. The VA examiner opined that the Veteran's photosensitivity dermatitis is most commonly provoked by exposure to sunlight. However, it is unclear whether the Veteran's exposure to sun during service is related to his skin condition. Thus, an addendum opinion is warranted. In a February 2022 appellate brief, the Veteran recently contends that his skin condition is related to his exposure to herbicide agents and secondary to his service-connected diabetes. Given such, the Board finds an opinion is warranted to address these contentions. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Obstructive Sleep Apnea The Board finds that a remand is warranted because the September 2021 VA medical opinion is inadequate, as the September 2021 VA examiner's opinion is inconclusive. Also, the Board finds that remand is warranted to obtain a medical opinion that address the Veteran's recent contention that his obstructive sleep apnea is related to his conceded exposure to herbicide agents and as secondary to his service-connected diabetes. In June 2021, the Board requested a VA medical opinion that addresses whether the Veteran's obstructive sleep apnea is secondary to his service-connected PTSD. Specifically, in a September 2021 VA medical opinion, the VA examiner noted that medical articles stated that "sleep apnea is risk factor for a long list of health problems such as...psychological problems including depression, worsening PTSD and anxiety." In addition, the VA examiner noted that the mechanism underlying the relationship between sleep apnea and PTSD in military veterans is unclear. However, the VA examiner noted that a medical article states that potential factors that may connect the two disorders include disturbed sleep in combat, prolonged sleep deprivation, sleep fragmentation and hyperarousal due the physical and psychological stressors of combat, the chronic stress from PTSD or the sleep disturbances caused by obstructive sleep apnea. Ultimately, the examiner concluded that further research is needed to determine the relationship between sleep apnea and PTSD. Upon review of this opinion, the Board finds that while the VA examiner appears to note that medical literature has recognized a potential connection between obstructive sleep apnea and PTSD, more research is required. Given such, it is unclear whether the VA examiner needs to conduct additional research to determine whether there is a relationship between two diseases; thus, the Board finds that this opinion is inconclusive, and an addendum opinion is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, in the February 2022 appellate brief, the Veteran raises the contention that his sleep apnea is related to his conceded exposure to herbicide agents and secondary to his service-connected diabetes. The Veteran notes that recent studies have suggested a link between exposure to herbicide agents and sleep apnea. Thus, the Board finds that an addendum opinion is warranted to address the Veteran's theories of entitlement. Robinson v. Mansfield, 21 Vet. App. 545 (2008). The matters are REMANDED for the following action: 1. Heart Disease: With respect to the Veteran's claim for heart disease, request an addendum opinion from a qualified medical professional, that upon review of the evidence of record addresses the following: a) Whether the Veteran's heart diseases, to include congestive heart failure, valvular heart disease, cardiomyopathy, and hypertensive heart disease, are at least as likely as not (probability of 50 percent or greater) related to the Veteran's conceded exposure to herbicide agents. Although the Veteran's heart diseases are not of ischemia cardiomyopathy, the VA examiner is asked to discuss whether the Veteran's heart diseases are directly related to his conceded exposure to herbicide agents. b) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the heart diseases, to include congestive heart failure, valvular heart disease, cardiomyopathy, and hypertensive heart disease are (1) proximately caused by or (2) underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected disabilities, to include PTSD, diabetes, and/or any medications taken for his service-connected disabilities. 2. Hypertension: With respect to the Veteran's hypertension claim, request an addendum opinion from a qualified medical examiner, that upon review of the record, addressees the following: a) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's hypertension is (1) proximately caused by or (2) underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected disabilities, to include PTSD, diabetes, and/or any medications taken for his service-connected disabilities. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. Here, the Board notes that September 2021 VA examiner noted that risk factors for hypertension include diabetes and stress. Please address whether the Veteran's diabetes and/or PTSD are secondary to his hypertension. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. b) Whether the Veteran's hypertension is at least as likely as not (probability of 50 percent or greater) related to the Veteran's conceded exposure to herbicide agents. 3. Skin Rash: With respect to the Veteran's claim for a skin condition, request an addendum opinion from a qualified medical examiner, that upon review of the records, addresses the following: a) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's skin rash, to include dermatitis and/or eczema is (1) proximately caused by or (2) underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected disabilities, to include PTSD, diabetes, and/or any medications taken for his service-connected disabilities. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. b) Whether the Veteran's skin rash, to include dermatitis and/or eczema, is at least as likely as not (probability of 50 percent or greater) related to the Veteran's conceded exposure to herbicide agents and/or his exposure to sunlight during service. In addressing this opinion, the VA examiner is asked to discuss whether the Veteran's sun exposure during service is related to the Veteran's skin condition. Particularly, the September 2021 VA examiner noted that the Veteran's dermatitis is related to his exposure to sunlight. However, it was unclear whether this is exposure to sunlight during or post the Veteran's service. Please clarify. 4. Obstructive Sleep Apnea: With respect to the Veteran's claim for obstructive sleep apnea, request an addendum opinion from a qualified medical examiner, that upon review of the records, addresses the following: c) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's obstructive sleep apnea is (1) proximately caused by or (2) underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected disabilities, to include PTSD, diabetes, and/or any medications taken for his service-connected disabilities. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. d) Whether the Veteran's obstructive sleep apnea is at least as likely as not (probability of 50 percent or greater) related to the Veteran's conceded exposure to herbicide agents. If the VA examiner relies on medical literature, please apply the medical literature to the specific facts of this case. It is insufficient to make a general statement such as "the medical literature does not support an association between sleep apnea and PTSD." Rather, the VA examiner must explain why the medical literature does not support such an association. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If utilizing references within the electronic claims file, the examiner should clearly provide an identifier. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.