Citation Nr: 1047197 Decision Date: 12/20/10 Archive Date: 12/22/10 DOCKET NO. 07-35 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for fibromyalgia, to include as secondary to PTSD. 3. Entitlement to service connection for Crohn's disease, to include as secondary to PTSD. 4. Entitlement to service connection for residuals of an ileostomy, to include as secondary to PTSD. 5. Entitlement to service connection for sleep apnea, to include as secondary to herbicide exposure or to PTSD. 6. Entitlement to service connection for bilateral leg swelling, to include as secondary to herbicide exposure or to service- connected hypertension. 7. Entitlement to service connection for low testosterone. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision of the Portland, Oregon Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2010, the Veteran and his wife testified at a Board hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of the hearing is of record. During the hearing, it was indicated that the Veteran was seeking a total rating based upon individual unemployability (TDIU). This matter is not currently before the Board and is referred to the RO for further action. The issues of entitlement to service connection for PTSD, fibromyalgia, Crohn's disease, residuals of an ileostomy, sleep apnea, and bilateral leg swelling are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Low testosterone constitutes a laboratory finding and is not a disease or disability under VA law and regulations. CONCLUSION OF LAW Service connection for low testosterone is not warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. However, when the law and not the evidence are dispositive of the claim, the VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129, 132 (2002). In this case, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). For these reasons, the Board concludes that no further notification or development of evidence is required. II. Analysis The Veteran contends that he is entitled to service connection for low testosterone, as he believes that this condition is related to his active duty service. During his Board hearing, the Veteran reported that he had been receiving injections for his low testosterone levels for the past 7 years. The Veteran's service treatment records do not show any manifestations or diagnoses, or otherwise reference treatment for low testosterone levels. Post-service medical records from Dr. D. from 2000 through 2009 confirm that the Veteran had low testosterone levels and was receiving injections for treatment. The above notwithstanding, low testosterone is not a disability in and of itself for which VA compensation benefits are payable. While low testosterone may be indicative of underlying disability or may later cause disability, service connection may not be granted for a laboratory finding. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see 38 U.S.C.A. § 1110. Nothing in the medical evidence presently on file shows the Veteran has a current chronic disability manifested low testosterone. The Board further points out that the Veteran is already service-connected for his related erectile dysfunction and is receiving special monthly compensation on the basis of loss of use of a creative organ. Moreover, as a general matter, the term "disability" for VA purposes refers to a condition which has been deemed to result in impairment to the claimant's earning capacity. See 38 C.F.R. § 4.1. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this instance, there is no indication of an identifiable disorder with such an impact upon earning capacity. The Board has carefully considered the requirement the benefit- of-the-doubt rule. See Gregory v. Brown, 8 Vet. App. 563, 570 (1996); O'Hare v. Derwinski, 1 Vet. App. at 365, 367 (1991). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Service connection for low testosterone is denied. REMAND The Board's review of the claims file reveals that further RO action with respect to the remaining claims on appeal is warranted. With respect to the Veteran's claim for service connection for PTSD, the regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2010). With respect to the element of an in-service stressor, on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing such stressor. 75 Fed. Reg. 39843 (July 13, 2010). Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. In this case, in various statements and during the Veteran's Board hearing, he claimed that he was exposed to rocket attacks and enemy fire as a member of an artillery battalion during his time in Vietnam. He indicated that he feared for his safety during these traumatic events. His personnel records confirm that he served in Vietnam during the Vietnam War era. Post-service medical records contain a statement from a private physician indicating a diagnosis of PTSD. A VA psychiatric examination in July 2006 ruled out a diagnosis of PTSD. Specifically, it was determined that the Veteran's stressful event did not elicit intense fear, helplessness, or horror. However, at the August 2010 hearing, the Veteran reported that his symptoms had worsened. Thus, it is possible that the Veteran now exhibits all of the criteria for PTSD, and an examination should be afforded to make such determination. As the Veteran has presented stressors which fall under the new liberalizing rule regarding PTSD claims based on the fear of hostile military activity, a VA examination should be conducted so that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, can confirm whether any of his claimed stressors are adequate to support a diagnosis of PTSD, and whether the Veteran's symptoms are related to the claimed stressor(s). With respect to the Veteran's claims of service connection for fibromyalgia, sleep apnea, Crohn's disease, and residuals of an ileostomy, the Veteran has expressed his belief that these conditions may be secondary to the claimed PTSD. Because the service connection claim for PTSD is being remanded, and because adjudication of that claim may impact the adjudication of the Veteran's claim to service connection for fibromyalgia, sleep apnea, Crohn's disease, and residuals of an ileostomy, as secondary to PTSD, the Board concludes that these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Given the foregoing, the Veteran's claims for service connection fibromyalgia, sleep apnea, Crohn's disease, and residuals of an ileostomy also must be remanded. Moreover, private medical records confirm diagnoses of fibromyalgia and sleep apnea. A July 2006 statement from private physician Dr. M. indicates that the Veteran suffered from PTSD, and associates the Veteran's diagnoses of fibromyalgia and sleep apnea with PTSD. The letter does not provide an adequate rationale such as to enable a grant of service connection at the present time, but such evidence does support the claim and thus the examiner who provides the VA psychiatric examination should address Dr. M.'s contentions in providing an opinion with respect to whether the Veteran's fibromyalgia and sleep apnea are secondary to PTSD. In addition, an examination is also necessary with regard to the Veteran's claims of service connection residuals of an ileostomy and Crohn's disease. In this regard, the Veteran and his wife reported that he has experienced chronic irritable bowel and abdominal pain symptoms since his discharge from active duty service in 1971. In addition to expressing his belief that these symptoms are related to his PTSD and the stress from service, he also indicated that these disabilities may have arisen from drinking parasitic waters while stationed overseas in Vietnam and Cambodia. Private medical records from the Sacred Heart General Hospital beginning in 1973 evidence that the Veteran underwent an ileostomy in 1974, approximately 3 years after his discharge from service. A diagnosis of Crohn's disease was later assigned. A report from September 1974 notes that the Veteran had a 2-year history of intermittent crampy lower abdominal pain with bloody diarrhea. A June 1984 statement from private physician Dr. B. notes that he had followed the Veteran since 1973 for Crohn's disease. Further private treatment records reflect continued diagnosis of and treatment for these disabilities. A VA examination has not been afforded pertaining to the Veteran's Crohn's disease and residuals of an ileostomy. Given the Veteran's complaints of chronic bowel and abdominal pain since his discharge from service, and treatment records reflecting diagnosis and treatment of Crohn's disease and a ileostomy procedure shortly after the Veteran's discharge from service, the Board believes that an opinion is necessary to address the onset, nature, and etiology of these disabilities, to include whether they are secondary the Veterans claimed PTSD. U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As for the Veteran's claimed leg swelling disability, the Board likewise finds that a VA examination is necessary. The record contains reports from private physician Dr. D. from 2000 through 2009 noting treatment of bilateral edema of the legs, which was frequently associated with venous insufficiency. In addition, during his Board hearing, the Veteran indicated that his bilateral leg swelling has been related to his service-connected hypertension. Therefore, an examination should be afforded to address the etiology of the bilateral leg swelling and to determine if such swelling constitutes a disability that is separate and distinct from his service-connected bilateral peripheral neuropathy. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran a VA psychiatric examination to determine the etiology of any an acquired psychiatric disorder. The claims folder should be made available to the psychiatrist or psychologist for review before the examination. The examination must be conducted following the protocol in VA's Disability Worksheet for VA Initial PTSD examination and Mental Disorders examination. All indicated tests and studies are to be performed, and a comprehensive social, educational, legal and occupational history is to be obtained. Prior to the examination, the claims folder and a copy of this remand must be made available to the psychiatrist or psychologist for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the evidence, evaluation of the Veteran and applying sound medical principles, the must establish whether the Veteran carries a diagnosis of PTSD. If so, the examiner is to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that he has PTSD due to a claimed stressor that is related to the Veteran's fear of hostile military or terrorist activity. For any psychiatric diagnosis other than PTSD, the examiner should opine whether it is at least as likely as not due to active service. The examiner is also asked to address whether it is at least as likely as not that the Veteran's fibromyalgia and sleep apnea are caused by, aggravated by or permanently worsened beyond natural progression by his diagnosed psychiatric disorder. (If the psychiatric examiner determines that it is outside his/her range of medical expertise to answer this question, the examiner is asked to forward this question along with the Veteran's claims folder to the appropriate physician. Another examination is not required unless deemed necessary by the examiner). A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. Schedule the Veteran a VA examination(s) by the appropriate physician(s) to determine the etiology of his current Crohn's disease, residuals of an ileostomy, and claimed bilateral leg swelling. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner(s) is(are) requested to review all pertinent records associated with the claims file, particularly service treatment records, and following this review and the examination offer comment as to: a. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's Crohn's disease and ileostomy residuals arose during service or are related to active service or any incident of such service. The examiner is specifically asked to comment with respect to the likely onset of these disabilities, given the documented medical history of symptoms shortly after the Veteran's discharge from service and ileostomy procedure 3 years after discharge. b. Whether the Veteran's Crohn's disease or residuals of an ileostomy were caused or permanently worsened beyond natural progression due to PTSD. c. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has a bilateral leg swelling disability distinct from his peripheral neuropathy that is caused by, aggravated by, or permanently worsened beyond natural progression due to service- connected disability-specifically hypertension. If a separate bilateral leg swelling disability is diagnosed, the examiner if so should state if the symptoms of this disability and the service- connected bilateral peripheral neuropathy are entirely overlapping or if they each involve some distinct manifestations. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, the AMC/RO should readjudicate the Veteran's claims for service connection for PTSD, fibromyalgia, sleep apnea, Crohn's disease, residuals of an ileostomy, and bilateral leg swelling. If the benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a SSOC. An appropriate period of time should be allowed for response before the claims file is returned to the Board for further appellate consideration. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs