Citation Nr: 1700389 Decision Date: 01/09/17 Archive Date: 01/18/17 DOCKET NO. 13-19 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for Klinefelter syndrome. 2. Entitlement to service connection for cartilage and bone mass loss, shakes, and tremors, to include as secondary to medications used to treat Klinefelter syndrome. 3. Entitlement to a disability rating in excess of 10 percent for a lumbosacral spine disability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran had active duty from October 1978 to October 1986 and April 1990 to May 1992. This appeal is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified in support of these claims during a hearing held at the RO before the undersigned Veterans Law Judge in November 2015. The issue of entitlement to a TDIU has been raised by the record and is part of the appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the January 2011 notice of disagreement, the Veteran stated that he was unable to work because of a service-connected lumbosacral spine disability. The issues of entitlement to an increased rating for a lumbosacral spine disability and entitlement to TDIU are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. Klinefelter syndrome is not a disability for VA purposes that was manifest during or aggravated by active service and is not shown to have developed as a result of an established event, injury, or disease during active service. 2. Cartilage and bone mass loss, shakes, and tremors were not manifest during active service, are not shown to have developed as a result of an established event, injury, or disease during active service, and are not the result of or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for Klinefelter syndrome are not met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for service connection for cartilage and bone mass loss, shakes, and tremors, to include as secondary to medications used to treat Klinefelter syndrome, are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the claims decided, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for a disability resulting from injury incurred or disease contracted in the line of duty or for aggravation of preexisting injury or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation for VA compensation purposes. 38 C.F.R. § 3.303(c) (2016). A Veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2016). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2016). In order to prevail on the issue of entitlement to service connection, 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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A Veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection on a secondary basis is warranted if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a causal link between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and competent regarding those issues for which is can be competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2016). The Veteran asserts that treatments he received for Klinefelter syndrome during active service adversely affected him. The Veteran had a VA medical examination in September 2010. The examiner acknowledged that the Veteran was first treated for Klinefelter syndrome during active service. However, the examiner opined that the Veteran's Klinefelter syndrome is a congenital disorder. The examiner further explained that the Veteran's Klinefelter syndrome had its onset at birth, but that there were no signs and symptoms until the Veteran's teenage years during puberty, prior to active service. The examiner opined that it was less likely that the Veteran's Klinefelter syndrome had its onset during active service. The examiner further opined that it was less likely that the Veteran's Klinefelter syndrome was permanently aggravated beyond its natural progression during active service. The examiner explained that the Veteran's Klinefelter syndrome progressed as expected during active service. Based upon the evidence of record, the Board finds that Klinefelter syndrome is a congenital defect and is not a disability for VA purposes. The Board finds that a disability was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service. To the extent the evidence indicates the Veteran had Klinefelter syndrome before, during, and after service, the Board finds that Klinefelter syndrome is not a disease or injury for VA compensation purposes. 38 C.F.R. § 3.303 (2016). The Board also finds that the September 2010 VA medical opinion obtained in this case is persuasive. The opinion is shown to have been based on examination of the Veteran, review of the evidence of record, and adequate rationale for the etiology opinion. The examiner adequately considered the evidence of record as to symptom manifestation. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran has not submitted any contrary competent evidence to show that Klinefelter syndrome is related to service. The Board notes that the Veteran is competent to provide evidence as to observations and some medical matters, but not to establish a medical diagnosis or provide opinions as to etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). As the question of Klinefelter syndrome and any relationship to service is a complex etiological question of the type of medical matter which laypersons are not competent to provide, the Veteran's statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether a claimed disability is the type of disability for which a lay person is competent to provide etiology or nexus evidence). There is no indication that the Veteran has any medical training or expertise as to this matter and he is not competent to provide a diagnosis or an etiology opinion. Therefore, the claim will be denied. The Veteran asserts that his claimed cartilage and bone mass loss, shakes, and tremors were caused by medications used to treat Klinefelter syndrome. As service connection for Klinefelter syndrome has not been established, secondary service connection for cartilage and bone mass loss, shakes, and tremors as secondary to medications used to treat Klinefelter syndrome, cannot be established. Secondary service-connection cannot be established where the claimed primary disability is not service-connected. 38 C.F.R. § 3.310 (2016). Additionally, the question of direct service connection for cartilage and bone mass loss, shakes, and tremors must be considered. The Veteran's service treatment records do not show any complaints of or treatment for cartilage or bone mass loss, shakes, and tremors. The Veteran has not made any allegations that any incident in service caused the claimed cartilage and bone mass loss, shakes, and tremors. The Veteran has not submitted any competent evidence which relates cartilage or bone mass loss, shakes, or tremors, to any disability incurred in or aggravated by service, to any event of service, or to any service-connected disability. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Board finds that the preponderance of the evidence is against the claims and that service connection for Klinefelter syndrome and for cartilage and bone mass loss, shakes, and tremors, to include as secondary to medications used to treat Klinefelter syndrome, must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to service connection for Klinefelter syndrome is denied. Entitlement to service connection for cartilage and bone mass loss, shakes, and tremors, to include as secondary to medications used to treat Klinefelter syndrome, is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. During the November 2015 hearing, the Veteran testified that he had incapacitating episodes relating to service-connected lumbosacral strain, although he did not specify whether the episodes met the definition of incapacitating episodes under the relevant rating criteria. During a May 2014 VA medical examination, the Veteran did not report any incapacitating episodes. Therefore, that testimony represents a reported worsening of the service-connected lumbosacral strain. Therefore, the Veteran should be scheduled for a more contemporaneous VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and severity of a service-connected lumbosacral spine disability. The examiner must review the claim file and should note that review in the report. The examiner should elicit a detailed history from the Veteran. The examiner must determine the current severity of the lumbosacral spine disability. The examiner should provide ranges of lumbar spine motion for weight-bearing and nonweight-bearing, and active and passive motion. The examiner should state whether there is any additional loss of function due to painful motion, excess motion, weakened motion, fatigability, incoordination, or on flare up. The examiner should state whether there is muscle spasm or guarding sever enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner should state whether there have been any incapacitating episodes and if so, their frequency and duration. Incapacitating episodes are periods of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician. The examiner should opine whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities, considering his work experience, training, and education, but not considering age or nonservice-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 2. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs