Citation Nr: 23012012 Decision Date: 02/27/23 Archive Date: 02/27/23 DOCKET NO. 18-48 404 DATE: February 27, 2023 ORDER New and material evidence has not been submitted to reopen the Veteran's claim for entitlement to service connection for diabetes mellitus type II. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for neurological conditions (claimed as nerve conditions), diagnosed as peripheral neuropathy, to include as secondary to diabetes is denied. FINDINGS OF FACT 1. New and material evidence has not been submitted to reopen the Veteran's claim for entitlement to service connection for diabetes mellitus type II. 2. The Veteran's obstructive sleep apnea is not related to his military service. 3. The Veteran's erectile dysfunction is a result of his nonservice-connected diabetes. 4. The Veteran's neurological conditions, diagnosed as neuropathy, is a result of his nonservice-connected diabetes. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted to reopen the Veteran's claim for entitlement to service connection for diabetes mellitus type II. 38 U.S.C. §§ 1110, 5107(b), 5108; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for neurological conditions (claimed as nerve conditions), diagnosed as peripheral neuropathy, to include as secondary to diabetes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the case came before the Board. The Board denied entitlement to earlier effective dates for the award of service connection for hypertension and coronary artery disease. The Board also denied entitlement to increased ratings for the Veteran's hypertension and coronary artery disease. Lastly, the Board remanded the Veteran's claims for entitlement to service connection for diabetes, sleep apnea, erectile dysfunction, and a nerve condition in order to obtain the Veteran's social security disability records. In April 2019, the Veteran's attorney attempted to withdraw from representing the Veteran after the Veteran's case had been certified to the Board. In the April 2020, Board decision, the Board denied the attorney's request to withdraw because he did not provide good cause. In May 2020, the Veteran's attorney submitted an additional request to withdraw as the Veteran's representative. The Board now grants the Veteran's attorney request to withdraw. New and Material Evidence 1. New and material evidence has not been submitted to reopen the Veteran's claim for entitlement to service connection for diabetes mellitus type II The Veteran contends that he has submitted new and material evidence to reopen his claim for entitlement to service connection for diabetes mellitus type II. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. The threshold to reopen a claim is low and does not require new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In April 2004, the Regional Office issued a rating decision that originally denied entitlement to service connection for diabetes. The rating decision denied the Veteran's claim because there was no evidence that the diabetes occurred in or was caused by the Veteran's service. The Veteran did not appeal this decision and it became final. In October 2014, VA received the Veteran's application to reopen the claim for entitlement to service connection for diabetes. The Board notes that since the Veteran's claim was initially denied, VA has received additional medical records and Social Security disability records. In sum, the Board finds that the Veteran has not submitted any new and material evidence in order to reopen his claim of service connection for diabetes. A review of the record indicates that the evidence submitted since the April 2004 rating decision is cumulative and redundant of evidence already of record. Specifically, the Board notes that the Veteran's contentions have already been considered and medical evidence demonstrating that he meets the criteria for this disability has also been considered. In short, the record does not contain a medical opinion that has attributed the Veteran's diabetes to his military service. Thus, for the above stated reasons, the Board finds that new and material evidence has not been received to reopen the claim for service connection for diabetes mellitus type II. As such, the Veteran's appeal is denied. Service Connection The Veteran contends that his disabilities are related to his military service. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2017). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Entitlement to service connection for obstructive sleep apnea As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as obstructive sleep apnea. As to the in-service incurrence, the Board acknowledges that the Veteran's separation examination indicated that he had trouble sleeping. The Board notes that the separation examination did not go into any further detail regarding this report. In addition, the Board notes that the Veteran's service treatment records are silent for any treatment or a diagnosis for sleep apnea. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination in September 2020. Following the examination, the examiner opined that the Veteran's disability was less likely as not incurred in or caused by his military service. The examiner stated that the active service medical record does not include any diagnosis, treatment, or complaints indicating Obstructive Sleep Apnea (OSA). The examiner stated that the item checked on the December 1975 Discharge Physical Evaluation indicating "Frequent Trouble Sleeping." is too generic to be linked to OSA in any meaningful way. The examiner stated that "Trouble Sleeping" can be associated with a number of physiologic and psychologic conditions and there is no compelling reason to conclude that the "Trouble Sleeping" is a symptom of OSA. The examiner stated that the medical records do include relevant data concerning the time of onset of the Veteran's OSA symptoms. The examiner stated that on October 8, 1975, the Veteran weighed 190 pounds. The examiner stated that at the time of his Sleep Medicine Consult & Sleep Studies in August 2007 he weighed 321 pounds. The examiner stated that at the time of this evaluation he weighed 337 lbs. The examiner stated that obesity is a recognized risk and predisposing factor for OSA. The examiner stated that "thus the history of profound weight gain after Separation from the Service suggests the onset of the OSA was after his Separation." The examiner stated that the relationship between Obesity and OSA is supported by many studies. The examiner stated that therefore, the Veteran's OSA is less likely than not incurred in or caused by the sleep apnea during service. In October 2020, an addendum opinion was obtained after the Veteran's Social Security Disability records were added to his claims file. The examiner stated that the opinion should remain negative given that the "trouble sleeping" complaints noted during service are generic and not specific for sleep apnea. The examiner stated that the previous examiner demonstrated the extreme weight gain from 190 pounds to 337 pounds which suggests that the onset of sleep apnea occurred following service. The examiner stated there is no additional new evidence to refute the prior opinion. The Board has also reviewed the Veteran's medical records. The Board finds that the Veteran's records are silent for a medical opinion that has attributed his sleep apnea to his military service. In sum, the Board finds that entitlement to service connection for obstructive sleep apnea is not warranted. After a review of the record, the Board finds that the September 2020 VA examination and October 2020 addendum opinion, which found that the Veteran's disability is not caused by or related to his military service, is the most probative evidence of record. The Board has considered the Veteran's contentions; however, the Veteran's contentions are outweighed by the findings of the VA examiners because the VA examiners have the medical training to provide an opinion regarding the etiology of the Veteran's condition. Lastly, the Board notes that the Veteran's medical records do not show a continuity of symptomatology since service nor do the Veteran's records contain a nexus opinion that has attributed the Veteran's disability to his military service. For the above stated reasons, the most persuasive evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for obstructive sleep apnea, must be denied. 3. Entitlement to service connection for erectile dysfunction As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as erectile dysfunction. As to the in-service incurrence, the Board notes that the Veteran's service treatment records are silent for any treatment or a diagnosis for this disability. Turning to the medical evidence at hand, the Board notes that a May 2007 VA examiner found that this disorder was secondary to the Veteran's nonservice-connected diabetes. In September 2020, the Veteran attended a VA examination. Following the examination, the examiner found the Veteran's disability to be less likely as not incurred in or caused by the Veteran's service. The examiner stated that the active service medical records of the Veteran were reviewed and complaints, diagnoses, and/or treatment for conditions affecting the external male genitalia of the Veteran were identified in 1973, 1974, and 1975. The examiner stated that the diagnoses in all cases were STD's (e.g. Condylomata Acuminata, Lues). The examiner stated that in every case reviewed, the condition was not a cause, effect, or related to Erectile Dysfunction (ED) nor were the treatments potential causes of ED. The examiner stated that the evidence is clear that the Veteran's ED is due to an effect of his Diabetes. The examiner stated that the medical record does not support any suggestion of the presence of diabetes during his active military service. The examiner stated that a review of the record does not indicate that the Veteran is service connected for his Diabetes. The examiner stated that thus there is no causal or nexus correlation between his ED and his genital disorders/conditions. The examiner stated that therefore, the Veteran's erectile dysfunction is less likely than not incurred in or caused by the erectile dysfunction during service. The examiner also stated that the medical record references to ulcers on the penis and a urethral discharge was noted in the medical record in 1974 and 1975. The examiner stated that these findings and symptoms on those occasions were related to STDs and were characterized as "chancres" on at least one visit. The examiner stated that these conditions do not cause, nor does their treatment, ED. The examiner stated that the Veteran's ED is caused by his diabetes. The examiner stated that therefore, the veteran's erectile dysfunction is less likely than not incurred in or caused by or had its onset in, or is otherwise related to, active service, to include the reports of penile ulcers/lesions and urethral discharge in service. In October 2020, an addendum opinion was obtained after the Veteran's social security disability records were obtained. The examiner stated that the opinion should remain negative with rationale that erectile dysfunction was due to diabetes and not STDs during service. The examiner stated that Diabetes (but not STDs) is a well-established etiology of erectile dysfunction and there is no evidence of diabetes occurring during service. The examiner stated that there is no additional new evidence to refute the prior opinion. The Board has also reviewed the Veteran's medical records. The Board finds that the Veteran's records are silent for a medical opinion that has attributed his erectile dysfunction to his military service. In sum, the Board finds that entitlement to service connection for erectile dysfunction is not warranted. After a review of the record, the Board finds that the September 2020 VA examination and October 2020 addendum opinion, which found that the Veteran's disability is not caused by or related to his military service, is the most probative evidence of record. The Board has considered the Veteran's contentions; however, the Veteran's contentions are outweighed by the findings of the VA examiners because the VA examiners have the medical training to provide an opinion regarding the etiology of the Veteran's condition. Lastly, the Board notes that the Veteran's medical records do not show a continuity of symptomatology since service nor do the Veteran's records contain a nexus opinion that has attributed the Veteran's disability to his military service. For the above stated reasons, the most persuasive evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for erectile dysfunction, must be denied. 4. Entitlement to service connection for neurological conditions (claimed as nerve conditions), to include as secondary to diabetes As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as peripheral neuropathy. As to the in-service incurrence, the Board notes that the Veteran's service treatment records are silent for any treatment or a diagnosis for peripheral neuropathy. Turning to the medical evidence at hand, the Board has reviewed the Veteran's medical records. The Board finds that the Veteran's records are silent for a medical opinion that has attributed his peripheral neuropathy to his military service. The Board also finds that the Veteran's records have not established a continuity of symptomatology since the Veteran's service. In sum, the Board finds that entitlement to service connection for peripheral neuropathy is not warranted. After a review of the record, the Board finds that the Veteran's service treatment records have not established an in-service injury, event, or disease that caused him to develop this disability. In addition, the Veteran's post-service medical records have not established a continuity of symptomatology since the Veteran's service. Moreover, the Veteran's medical records are silent for a medical opinion that has attributed his disability to his military service. Lastly, the Board has considered the Veteran's contentions; however, the Veteran is not a medical professional and is unable to provide a medical opinion regarding the etiology of his disability. For the above stated reasons, the most persuasive evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for a nerve disorder, diagnosed as peripheral neuropathy, must be denied. R. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.