Citation Nr: A25035454 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240722-458615 DATE: April 17, 2025 ORDER Service connection for erectile dysfunction, including as due to exposure to toxins and as secondary to hypertension, is denied. Service connection for diabetes mellitus, type II, including as due to exposure to toxins, is denied. A higher (compensable) initial disability rating for a scalp scar from November 10, 2023, is denied. An initial disability rating in excess of 10 percent for a painful scalp scar from November 10, 2023, is denied. REMANDED Service connection for right eye cataracts, dry eye, and glaucoma ("right eye disability") including as due to exposure to toxins is remanded. Service connection for left eye cataracts, dry eye, and glaucoma ("left eye disability") including as due to exposure to toxins is remanded. FINDINGS OF FACT 1. The evidence shows current diagnoses of erectile dysfunction and diabetes mellitus, type II; there was penile bleeding and exposure to toxins but no endocrine injury, disease, event, or "chronic" symptoms of diabetes during service; symptoms of diabetes were not continuous since service and did not manifest to a compensable degree within one year of service separation. 2. The current erectile dysfunction is not etiologically related to service; the erectile dysfunction and diabetes are not due to exposure to toxins during service. 3. The current erectile dysfunction was not caused or worsened in severity by the service-connected hypertension. 4. From November 10, 2023, the scalp scar did not manifest in one or more characteristics of disfigurement and was painful but not unstable. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction, including as due to exposure to toxins and as secondary to hypertension, are not met. 38?U.S.C. §§ 1110, 1131, 5103, 5103A; 38?C.F.R. §§?3.159, 3.303, 3.310(a). 2. The criteria for service connection for diabetes mellitus, type II, including as due to exposure to toxins, are not met. 38?U.S.C. §§ 1110, 1131, 5103, 5103A; 38?C.F.R. §§?3.159, 3.303, 3.307, 3.309. 3. The criteria for a higher (compensable) initial disability rating for a scalp scar from November 10, 2023, are not met.? 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7800. 4. The criteria for an initial disability rating in excess of 10 percent for a scalp scar from November 10, 2023, are not met.? 38?U.S.C. §§?1155, 5107;?38?C.F.R. §§?3.102, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from February 1972 to January 1976. These matters come to the Board of Veterans' Appeals (Board) on appeal from June and October 2024 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA) or modernized review system, created a new framework of review for veterans who disagree with VA's decision on their claim. In the July 2024 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct docket. In this AMA case, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decisions on appeal (June 27, 2024, and October 11, 2024). 38 C.F.R. § 20.303. The Board cannot consider evidence submitted during the period after the AOJ issued the decisions on appeal. 38 C.F.R. § 20.303. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider for the issues denied in this decision, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of service connection for the eye disabilities, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). SERVICE CONNECTION LEGAL AUTHORITY Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. In this case, the evidence shows a current diagnosis of diabetes which is a "chronic disease" listed under 38?C.F.R. §?3.309(a); therefore, the "chronic disease" presumptive provisions at 38?C.F.R. §?3.303(b) apply. Walker v. Shinseki,?708 F.3d 1331?(Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. ?38?C.F.R. §?3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38?U.S.C. §§?1101, 1112, 1113, 1137; 38?C.F.R. §§?3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 38?U.S.C. §§?1101, 1112, 1113, 1137; 38?C.F.R. §§?3.307, 3.309(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 1. Service connection for erectile dysfunction, including as due to exposure to toxins and as secondary to hypertension, is denied. 2. Service connection for diabetes mellitus, type II, including as due to exposure to toxins, is denied. The Veteran appeals for service connection for erectile dysfunction, diagnosed by VA in May 2024, and diabetes mellitus, type II, diagnosed by VA in December 2015, as directly related to service. See July 2024 substantive appeal to the Board; May 2022 VA Form 21-526EZ. The Veteran alternatively contends that the erectile dysfunction was caused by the service-connected hypertension. See April 2024 VA Form 21-526EZ. A July 1973 service treatment record shows bleeding upon erection after a circumcision surgery. At the May 2024 VA examination, the Veteran reported that erectile dysfunction symptoms began after this surgery. An August 2023 VA memorandum shows exposure to asbestos due to service on an aircraft carrier during service. After a review of all the lay and medical evidence during the evidentiary period, the Board finds that the persuasive weight of the evidence is against a finding of an endocrine injury, disease, event, or "chronic" symptoms of diabetes during service. The Veteran contends that he could not manage a proper diet during service while on an aircraft carrier. See May 2022 VA Form 21-526EZ. The complete service treatment records show treatment for rash, sore throat, a head injury, dizziness, headaches, a mild muscle strain, right gonad pain, genital bleeding, cold symptoms, a right fingernail injury, blurry vision, and vertigo, but no similar symptoms or clinical findings that may have been precursors to diabetes or an endocrine condition. As the Veteran sought treatment for a variety of symptoms including pain and infections, and was observed by medical professionals on multiple occasions during service, symptoms that may be precursors to diabetes, such as glucose readings and tests or a modified diet, would have ordinarily been recorded during service had they occurred; therefore, the lay and medical evidence generated contemporaneous to service is likely to reflect accurately the Veteran's physical condition, so provides evidence against a finding of an endocrine injury, disease, or event or "chronic" symptoms of diabetes during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring). The persuasive weight of the evidence is against a finding that symptoms of diabetes were continuous since service separation. The December 1975 service separation examination report is negative for endocrine symptoms or treatment or a diagnosis of diabetes. The Veteran was not diagnosed with diabetes until December 2015 after which he has been receiving private and VA treatment. The Board finds that the medical record made in December 2015 in the course of receiving treatment for diabetes is of high probative value in showing post-service injuries unrelated to service because a person seeking treatment would be expected to report an accurate medical history in order to receive good medical care and treatment. See Fed. R. Evid. 803 (4) (statements made for medical diagnosis or treatment are an exception to the rule against hearsay, which supports the proposition that statements reporting medical history for treatment purposes are probative); Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). Such evidence of a diagnosis of diabetes many decades after service separation also shows that symptoms of diabetes did not manifest to a compensable degree within one year of service separation. The persuasive weight of the evidence is against a finding that the current erectile dysfunction is etiologically related to symptoms of penile bleeding during service. In May 2024, a VA examiner opined that the current erectile dysfunction was less likely than not incurred in or caused by service because the condition was not diagnosed until many years after service (May 2024) and medical evidence does not support a connection between a circumcision surgery and such symptoms. The Board affords probative weight to this medical opinion because it comports with the medical evidence showing onset of symptoms only in May 2024 (despite the Veteran's contentions of onset during service, which the service treatment records do not corroborate as the July 1973 service treatment record shows penile bleeding upon erection) which is many decades after service. The persuasive weight of the evidence is against a finding that the current erectile dysfunction and diabetes were caused by exposure to toxins, including asbestos, during service. In September 2023 and May 2024 medical opinions, a VA examiner opined that the conditions were not caused by exposure to toxins because available medical and scientific evidence does not support causal relationships between such exposure and development of erectile dysfunction or diabetes. The Board affords probative weight to these medical opinions because they acknowledge the Veteran's exposure to asbestos during service on an aircraft carrier but relies on a lack of available evidence in the scientific or medical community to support the conclusions. Additionally, the May 2024 VA examination for male reproductive conditions indicates the etiology of the erectile dysfunction is unknown but a "pertinent condition" to it is benign prostatic hyperplasia for which service connection is not currently in effect. As to the?secondary?service connection theory (38?C.F.R. §?3.310(a)), the persuasive weight of the lay and medical evidence is against a finding that the currently diagnosed erectile dysfunction was caused or worsened in severity by the service-connected hypertension.? In October 2022, VA issued a rating decision that granted service connection for hypertension and the RO assigned an initial disability rating of zero percent from May 15, 2022. The Veteran has contended that the service-connected hypertension caused the current erectile dysfunction. See April 2024 VA Form 21-526EZ. The Veteran's contention is a request for the Board to make findings favorable to the Veteran and is not evidence in the case, including on the questions of a secondary nexus to the current hypertension. The mere contention, without further explanation or supporting rationale, that the erectile dysfunction was caused by the erectile dysfunction is insufficient to trigger Veterans Claims Assistance Act of 2000 (VCAA) notice and assistance requirements, including to trigger the duty to get a secondary medical opinion. See Waters v. Shinseki, 601 F.3d 1274 at 1278-79 (Fed. Cir. 2010) (holding that conclusory and generalized statements about service situations causing medical problems are not enough to entitle a veteran to a medical examination). While the Veteran as a lay witness is competent to provide testimony or statements relating to some symptoms or facts of events observed related to erectile dysfunction, the Veteran also does not have the requisite medical knowledge, training, or experience to determine or opine on the etiology of the condition. Thus, the Veteran is not competent to opine that the etiology of erectile dysfunction is the service-connected hypertension. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (weight and credibility are factual determinations going to the probative value of evidence); Woehlaert v. Nicholson, 21 Vet. App. 456, 4 62 (2007) (lay evidence is not always competent evidence, particularly where complex medical questions or the interpretation of objective medical tests are involved). "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As aforementioned, the May 2024 VA examiner associated the erectile dysfunction instead with benign prostatic hyperplasia, not hypertension or any other condition for which service connection is currently in effect. For the foregoing reasons, the Board finds that the criteria are not met for service connection for erectile dysfunction and diabetes on direct, "chronic" presumptive, or secondary (38 C.F.R § 3.310(a)) bases; therefore, the appeals must be denied. DISABILITY RATINGS LEGAL AUTHORITY Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in?38 C.F.R. Part 4. 38?U.S.C. §?1155.? It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.? 38?C.F.R. §?4.21.? Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.? Otherwise, the lower rating will be assigned. ?38?C.F.R. §?4.7.? It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.? When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. ?38?C.F.R. §?4.3.? The Veteran has appealed from an initial noncompensable (zero percent) disability rating and a separate 10 percent rating for pain in the scalp scar assigned in the October 2024 rating decision.? In Fenderson?v. West, the U.S. Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that such appeal of the?initial?rating assigned following a grant of service connection was specifically not a claim for an increased disability rating.? Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.? 38?C.F.R. §?4.2; Fenderson v. West, 12?Vet. App.?119, 125-26 (1999).? The scalp scar has been rated under DC 7800 for a scar of the head, face, or neck and separately under DC 7804 for pain. See 38?C.F.R. §?4.118. Under DC 7800, a 10 percent disability rating is warranted with one characteristic of disfigurement. A 30 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or two or three of the characteristics of disfigurement. 38 C.F.R. § 4.118. A 50 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or four or five of the aforementioned characteristics of disfigurement. Note (4) instructs VA to separately evaluate disabling effects, other than disfigurement, that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate DCs and apply § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. Pain in the scalp scar is currently assigned a separate 10 percent rating under DC 7804. The eight characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118 are: scar of five inches (in.) or more (13 or more cm.) in length; scar at least 1/4 in. (0.6 cm.) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six sq. in. (39 square (sq.) cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding six sq. in. (39 sq. cm.); and skin indurated and inflexible in an area exceeding six sq. in. (39 sq. cm.). 38 C.F.R. § 4.118; DC 7800. DC 7804 covers symptoms of the service-connected scalp scar and provides a 10 percent rating for one or two unstable or painful scars; a 20 percent rating for three or four unstable or painful scars; and a 30 percent rating for five or more unstable or painful scars. Note (1) defines "unstable" as one with frequent loss of covering of skin over the scar. Note (2) instructs VA that if one or more scars are both unstable and painful, to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC when applicable. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one DC is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The rating criteria for the skin have been amended, effective August 13, 2018. These amendments do not directly affect DC 7804. They introduce a General Rating Formula for skin conditions and amend DC 7801 and 7802 by characterizing multiple scars by six body zones affected rather than by extremity. 3. A higher (compensable) initial disability rating for a scalp scar from November 10, 2023, is denied. 4. An initial disability rating in excess of 10 percent for a painful scalp scar from November 10, 2023, is denied. The Veteran appeals for higher initial disability ratings for the service-connected scalp scar which is currently compensated with a zero percent rating for a head, face, or neck scar disfigurement and with a 10 percent rating for pain, separately. See July 2024 substantive appeal to the Board. The May 2024 VA examination report for scars shows the Veteran reported tenderness on palpation of the scalp scar. On examination, the scar was not unstable with frequent loss of covering of skin and it measured 9.5 cm. by .1 cm. There was 3 sq. cm. of missing underlying tissue and .95 sq. cm. of indurated and inflexible area. The surface contour of the scar was not elevated or depressed on palpation, adherent to underlying tissue, hypo- or hyperpigmented, or with abnormal skin texture. A higher rating of 10 percent under DC 7800 for head, face, or neck scar disfigurement is not warranted because there is not one characteristic of disfigurement, so a noncompensable rating continues to be appropriate. The findings of the May 2024 VA examination report show the scalp scar did not measure five or more in. in length, was not at least .6 cm. at the widest part, did not have an elevated surface contour, abnormal texture, or depression on palpation, was not adherent to underlying tissue or hypo- or hyperpigmented, and did not have soft underlying tissue missing or indurated/inflexible skin in an area exceeding 39 sq. cm. Rather, the VA examination report shows underlying soft tissue missing in an area of 3 sq. cm. and .95 sq. cm. of indurated and inflexible skin. A higher rating of 20 percent rating under DC 7804 is not warranted because the evidence does not show three or four painful or unstable scars. The findings of the May 2024 VA examination report show only pain on palpation of the scalp scar. The evidence also does not show that the scar is both painful and unstable which would warrant a 20 percent disability rating pursuant to Note (3) of DC 7804 (the examiner found no instability at the May 2024 VA examination). The Board has also considered whether separate ratings under any other DC are warranted. The Board may grant separate ratings for symptoms and impairment of certain scars. For example, a veteran may receive multiple ratings for scars of the head, face, or neck that are painful (DC 7804), disfiguring (DC 7800), and cause facial muscle damage resulting in problems with mastication (DC 7805) as the symptomatology of the three impairments do not overlap with each other. Esteban, 6 Vet. App. at 259. In this case, the evidence does not show that the scalp scar also causes problems with mastication, so while separate ratings under DC 7800 and DC 7804 continue to be warranted for a painful scar of the head, face, or neck, a third rating under DC 7805 is not warranted. For the foregoing reasons, the Board finds that the criteria are not met for higher initial disability ratings in excess of zero and 10 percent for the scalp scar (for disfigurement of the head, face, or neck and pain in the scar, respectively) from November 10, 2023; therefore, the appeals must be denied. REASONS FOR REMAND 5. Service connection for the right eye disability is remanded. 6. Service connection for the left eye disability is remanded. In September 2023, a VA examiner provided toxic exposure risk activity (TERA) medical opinions pursuant to The Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act as to whether the current eye disabilities are due to exposure to asbestos during service. The only rationale cited was "not service related" with no additional explanation. The Board will remand to obtain medical opinions that include complete rationales as to the disposition so that the Board may properly evaluate the claims. The issues of service connection for the right and left eye disabilities are REMANDED for the following actions:? Schedule a VA examination to help determine the etiologies of the claimed eye disabilities. The VA examiner should provide the following opinion: Is it at least as likely as not that the right and left eye disabilities are due to one or more TERAs during service, specifically, the exposure to asbestos and other toxins during service?? The VA examiner should address whether the conditions were caused by a synergistic, combined effect of all the toxic exposures during service. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Comis 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.