Citation Nr: 1617623 Decision Date: 05/03/16 Archive Date: 05/13/16 DOCKET NO. 10-22 531A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected PTSD. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD. 4. Entitlement to special monthly compensation (SMC), based on the loss of use of a creative organ. 5. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected PTSD. 6. Entitlement to service connection for a skin disability, claimed as skin cancer and actinic keratosis. 7. Entitlement to service connection for a back disability. 8. Entitlement to service connection for a prostate disability, to include as a result of herbicide exposure. 9. Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to July 1969. He served in the Republic of Vietnam and is the recipient of the Combat Infantryman's Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Seattle, Washington and Portland, Oregon. The Portland RO is currently the Agency of Original Jurisdiction. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). REMAND The Board finds additional development is required before the Veteran's claims are decided. At the outset, the Board notes that when VA undertakes to provide a VA examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran underwent VA examinations pertaining to his hypertension, erectile dysfunction, and GERD claims in December 2007. Initially, the Board observes the Veteran's service treatment records (STRs) do not show treatment for any of the these disabilities. Although the Veteran reported experiencing periods of indigestion in the course of his January 1967 entrance examination, the examiner found him to be in "good health." The Veteran has asserted these disabilities were caused by his service-connected PTSD. In addition, he has provided a lay statement from his ex-spouse, which chronicles a history of recurrent digestive problems from the middle of 1970 to 1980. During his December 2007 examination, the examiner found the above-noted disabilities were less likely than not caused by his PTSD. However, the rationales provided for these opinions wholly missed the mark. With regard to the Veteran's hypertension, the examiner stated the Veteran's, "blood pressure readings during his military service were normal. Therefore it is unlikely that it is related to the PTSD." The Board is mystified as to how normal blood pressure readings in service, led the examiner to conclude the Veteran's PTSD did not subsequently cause his hypertension. Further, the examiner failed to address whether the Veteran's PTSD aggravated his hypertension. Relative to the Veteran's claimed erectile dysfunction, the examiner stated the Veteran's condition began roughly 1-2 years prior to the December 2007 examination. The examiner also noted the Veteran had additional risk factors for the development of erectile dysfunction, which included age and hypertension. The examiner then concluded the Veteran's erectile dysfunction is less likely as not caused by or a result of his service-connected PTSD. The examiner did not explain how or why these facts led to his conclusion. He also failed to state whether the Veteran's PTSD aggravated his erectile dysfunction. Finally, in relation to the Veteran's claimed GERD, the examiner concluded the Veteran does warrant a current diagnosis of the condition. However, he concluded the condition is usually a mechanical problem, and not usually related to PTSD. The examiner then found the Veteran's GERD is therefore less likely as not caused by his PTSD. In this regard, the Board notes the examiner did not state PTSD could not cause GERD, but rather that the condition is usually caused by a bio-mechanical weakening of the lower esophageal sphincter. He again failed to explain why the Veteran's PTSD was less likely than not to have caused his disability in this specific case. Further, like the other medical opinions provided, the examiner also failed to state whether the Veteran's PTSD aggravated his GERD. To be considered adequate, a medical examination report 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 (2008). In this regard, the examiner has indicated the Veteran's hypertension, erectile dysfunction and GERD are less likely than not caused by his service-connected PTSD; however, as explained above, the examiner's opinions are unsupported by reasoned explanations. In addition, the examiner failed to state whether any of the above-noted disabilities were aggravated by his service-connected PTSD. As such, the Board finds new medical examinations with opinions are warranted. Next, the Board notes the Veteran has initiated a claim for service connection for a respiratory disability, sleep disability, prostate disability, and skin disability, but has not been afforded a VA examination in response to these claims. The Veteran has also claimed service-connection for a back disability, and although a VA examination was conducted in November 2010, the examiner did not provide an opinion relative to the etiology of the Veteran's lumbar spine disability. A review of the Veteran's outpatient treatment records from the Roseburg VA Medical Center (VAMC) shows the Veteran has been diagnosed with allergic rhinitis, obstructive sleep apnea, and prostate hypertrophy. Additionally, his private treatment records from Dr. J.G. show recurrent treatment for pre-cancerous actinic keratosis. Further, in the course of the Veteran's November 2010 VA examination he was diagnosed with degenerative disc disease (DDD), and his private treatment records from the Neurospine Institute show he underwent an MRI in February 2008, which revealed disc bulging with neuroforaminal narrowing. Therefore, current disabilities are shown. In essence, the Veteran asserts his respiratory disability originated in service, and has continued since that time. In support of his claim, the Veteran's ex-spouse provided a statement indicating the Veteran experienced recurrent bronchitis from 1970 to 1980. A review of his STRs shows he was treated for upper respiratory infections in February 1968 and March 1969. Briefly, the Board notes the Veteran initially averred that his respiratory disability may have been caused by asbestos exposure in service; however, he subsequently stated he no longer wished to pursue that aspect of his claim in January and October 2008 statements. Relative to his claim for service connection for a sleep disorder, the Veteran asserts his sleep apnea was caused by his service-connected PTSD. He has claimed his pre-cancerous actinic keratosis was the result of hazardous sun exposure in Vietnam, and asserts his prostatitis was caused by Agent Orange exposure. Clearly, the Veteran is competent to report his sun exposure in service, which may have caused his current skin disability. Further, although the Veteran's prostate disability is not listed as a condition that is presumed to have been caused by herbicides, the U.S. Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard the Veteran's ex-spouse has provided a statement wherein she also recalled the Veteran experiencing recurrent prostatitis from 1970 through 1980. In relation to the Veteran's claimed back disability, the Board notes the Veteran did report he experienced recurrent back pain on entrance examination in January 1967. However, the examiner did not expressly note the existence of a back disability at that time. Rather, as noted above, the examiner found the Veteran to be in "good health." The Veteran reported experiencing pain over the dorsal area of the spine in January 1968 following a reported motorcycle accident. He underwent an X-ray examination at that time, which was noted to be negative. However, he again reported experiencing recurrent back pain on separation examination in July 1969. Additionally, during the pendency of this claim, the Veteran provided two lay statements from fellow service members, who each attested to witnessing the Veteran injure his back while trying to dislodge a mortar round during his time in Vietnam. Although there are no reports of this incident, the witnesses have also stated medical care was very limited at the remote base where they were located. The Board notes that VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Board finds the low threshold necessary to provide an examinations to determine the etiology of the Veteran's claimed respiratory disability, sleep disability, prostate disability, skin disability, and back disability has been met in this case. The Board also notes that by way of a November 2006 rating decision, the RO denied service connection for a respiratory disability. The Veteran was notified of the decision in December 2006, and in response submitted a notice of disagreement (NOD) in October 2007 indicating his disagreement with all of the RO's denial decisions. The RO issued an SOC in April 2010, which appears to have addressed the Veteran's claim for a sleep disorder and respiratory disorder as one issue; however, the Board has construed these as separate and distinct disabilities. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In this regard, the Board notes the Veteran has asserted he received treatment at the Roseburg VAMC as early as 1980. In a June 2006 VA Form 10-7131 Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action, the RO requested these records; however, to date it does not appear the RO received a response to this request. Since these records may be relevant to the Veteran's above-noted claims for service connection, all necessary development should be completed to obtain them in accordance with 38 C.F.R. § 3.159(c)(2) and M21-1 Part III, Subpart iii, Chapter 1, Section C.4.a. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the remaining issues on appeal, to include any more recent treatment records related to the claimed disabilities, as well as any record from the Roseburg VAMC following the Veteran's discharge from active duty to the present. Efforts to obtain the VA records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the RO or the AMC should afford the Veteran a VA examination or examinations by a physician or physicians with sufficient expertise to address the etiology of the Veteran's claimed hypertension, sleep disorder, erectile dysfunction, GERD, skin disability, back disability, prostate disability, and respiratory disability. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the appropriate examiner should state an opinion whether it is at least as likely as not (a 50 percent probability or greater) with regard to the Veteran's hypertension, sleep disorder/OSA, erectile dysfunction, and GERD that the disorder: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected PTSD; or c) was permanently worsened by his service-connected PTSD. If, AND ONLY IF, the examiner finds the Veteran's hypertension was either incurred in service or caused/aggravated by his service-connected PTSD, the examiner should also state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's erectile dysfunction was caused or aggravated by his hypertension. Relative to the Veteran's claimed skin disability, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disorder originated during his period of active service or is otherwise etiologically related to his active service, to specifically include the Veteran's reports of elevated sun exposure in Vietnam. In relation to the Veteran's claimed back disability, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disorder originated during his period of active service or is otherwise etiologically related to his active service, to specifically include the Veteran's treatment for back pain in service in January 1968, as well as the Veteran's and other service members' credible reports indicating the Veteran injured his back while trying to dislodge a mortar shell in Vietnam. In this respect, the Board notes that the Veteran has a Combat Infantryman's Badge, and as such, his reports of an injury being incurred in a combat theatre must be accepted in accordance with 38 C.F.R. § 3.304(d). With regard to the Veteran's claimed prostate disability, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disorder originated during his period of active service or is otherwise etiologically related to his active service, to specifically include the Veteran's conceded herbicide exposure in the Republic of Vietnam. Finally, with regard to the Veteran's claimed respiratory disability, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disorder originated during his period of active service or is otherwise etiologically related to his active service, to specifically include the Veteran's treatment for upper respiratory infections in service in February 1968 and March 1969. In this respect, the examiner should specifically consider the statement from the Veteran's ex-spouse relative to the Veteran's recurrent episodes of bronchitis from 1970 to 1980. The examiner(s) must provide a complete rationale for all proffered opinions. The examiner(s) must discuss and consider the Veteran's competent lay statements, as well as the competent lay statements provided by others noted above. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The RO or the AMC should undertake any other indicated development. 4. Finally, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. § 5109B (West 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).