Citation Nr: 1619195 Decision Date: 05/12/16 Archive Date: 05/19/16 DOCKET NO. 13-03 393A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for bilateral carpal tunnel syndrome. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD. 6. Entitlement to service connection for skin cancer, to include as secondary to herbicide exposure. 7. Entitlement to an initial compensable evaluation for bilateral hearing loss. 8. Entitlement to service connection for vertigo, to include as secondary to service-connected bilateral hearing loss and tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to August 1991, with verified service in the Republic of Vietnam from February 1970 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010, April 2012, and July 2012 decisions issued by the VA Regional Office (RO) in Houston, Texas. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the Virtual VA treatment notes relevant to the claims on appeal. Since the receipt of those records, various statements of the case (SOC's) were issued in which the RO considered the VA treatment notes. The Veteran's VBMS file indicates that he recently perfected an appeal of an June 2015 rating decision after receiving an October 2015 statement of the case, but, excluding the denial of a petition to reopen a claim of service connection for skin cancer associated with herbicide exposure and the denial of a claim for service connection for basal cell carcinoma of the cheek, the remaining issue included in this appeal has not yet been certified to the Board by the AOJ. The Board declines to exercise its jurisdictional discretion over the issue related to a claim of service connection for colon cancer at this time, as an exercise of discretion may deprive the Veteran of his right to representation at all stages of the appeal. See 38 C.F.R. §§ 19.35, 20.600 (2015). The certification process provides notice to the Veteran and his representative that the AOJ has completed action on an appeal and indicates future correspondence, including argument regarding the issues in dispute, should be directed to the Board, which has not taken place in this instance. The claim of service connection for colon cancer included in the appeal of the June 2015 rating decision will be the subject of a subsequent Board decision, once it has been certified to the Board and the Veteran has been provided proper notice of the certification. With respect to the issues related to a petition to reopen a claim of service connection for skin cancer associated with herbicide exposure and entitlement to service connection for basal cell carcinoma of the cheek included in the appeal of the June 2015 rating decision, the Board notes that the appeal that has been certified to the Board includes a claim of entitlement to service connection for skin cancer, to include as secondary to herbicide exposure. Therefore, these claims are already before the Board and will be addressed below. The issues of entitlement to an initial evaluation in excess of 30 percent for PTSD; entitlement to an initial compensable evaluation for bilateral hearing loss; and entitlement to service connection for sleep apnea, a left knee disorder, bilateral carpal tunnel syndrome, skin cancer, and vertigo are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Erectile dysfunction was caused by the Veteran's service-connected PTSD. CONCLUSION OF LAW Erectile dysfunction is proximately due to or the result of service-connected PTSD. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a present disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 116667 (Fed. Cir. 2004). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 131 (Fed. Cir. 2013). As erectile dysfunction is not listed as a chronic disease under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) is not for application. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is warranted for erectile dysfunction. In a December 2011 VA male reproductive system conditions examination, the examiner diagnosed the Veteran with erectile dysfunction. He also opined that it was at least as likely as not proximately due to or the result of the Veteran's service-connected PTSD. He noted that, while the Veteran's erectile dysfunction was most likely multi-factorial in etiology, his PTSD led to marital discord and caused intimacy problems with his spouse, which included sleeping in separate beds. The examiner related that the PTSD led to depression, and that a classic symptom of depression was a loss of sexual interest and performance. Based on the foregoing, the Board finds that the most probative evidence shows that the Veteran has erectile dysfunction that is related to his service-connected PTSD. Accordingly, service connection is warranted for erectile dysfunction. ORDER Service connection for erectile dysfunction is granted. REMAND A remand is necessary to obtain any outstanding service treatment notes, post-service treatment notes from identified military treatment facilities, private treatment notes, and afford VA examinations with opinions. Throughout the appeal, the Veteran has reported that, during and after service, he was treated at the Cam Rahn Bay US Air Force Hospital in Vietnam; the US Air Force Clinic at Randolph Air Force Base in Universal City, Texas; Wilford Hall US Air Force Clinic Medical Center at Lackland Air Force Base in San Antonio, Texas; and Brooke Army Medical Center at Fort Sam Houston in San Antonio, Texas. In an August 2009 statement and in a September 2010 notice of disagreement, the Veteran specifically stated that he was diagnosed with carpal tunnel syndrome at Wilford Hall Medical Center. In a February 2013 VA Form 9, the Veteran indicated that he was treated in the emergency room at Wilford Hall Medical Center on two occasions for left knee pain. In a March 2013 VA Form 9, the Veteran reported that he was treated at Brooke Army Medical Center after a suicide attempt. In a July 2015 notice of disagreement, he indicated that he was treated for skin cancer at San Antonio Regional Medical Center (formerly Brooke Army Medical Center). Finally, in a November 2015 statement, the Veteran reported that he may have been treated for left knee pain at Cam Rahn Bay US Air Force Hospital in Vietnam. Therefore, on remand, the AOJ should attempt to obtain any outstanding service treatment records and post-service treatment records from these military treatment facilities. In addition, during a July 2012 VA ear conditions examination, the Veteran indicated that his vertigo symptoms began approximately five years earlier, in approximately 2007, and that he was treated with Meclizine by his VA primary care physician. However, in his April 2012 claim, the Veteran reported that his vertigo began shortly after he returned from Vietnam. As a remand is necessary for outstanding treatment records related to the claims referenced above, a remand for any outstanding treatment notes relevant to the Veteran's claimed vertigo is not prejudicial toward the Veteran. Further, the Veteran has identified several private providers who have treated him for his carpal tunnel syndrome, skin cancer, and left knee pain; however, the AOJ did not request authorization to obtain those records and, therefore, did not attempt to obtain them. See September 2010 notice of disagreement, February 2013 VA Form 9, November 2015 statement. On remand, the AOJ should contact the Veteran and request authorization to obtain any identified private treatment records. With respect to the claims of entitlement to initial evaluation in excess of 30 percent for PTSD and entitlement to an initial compensable evaluation for bilateral hearing loss, the Board notes that the Veteran reported that his symptoms have increased in severity since he was last provided VA examinations to evaluate these disabilities. Specifically, in a statement on a March 2013 VA Form 9, the Veteran stated that he experienced increased anxiety and depression and he attempted suicide since he was last examined in December 2011. In addition, in an August 2013 statement associated with a VA Form 646, the Veteran's representative contended that the Veteran's PTSD had increased in severity. In an April 2016 statement, the Veteran's representative noted that the Veteran claimed that his bilateral hearing loss was worse than when it was originally evaluated, and that the March 2012 VA audiology examination is too old to adequately evaluate the state of the Veteran's current bilateral hearing loss. Therefore, the Veteran should be afforded VA examinations to ascertain the current severity and manifestations of his service-connected PTSD and bilateral hearing loss. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. The Veteran has not been afforded a VA examination in connection with his claim of service connection for sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c). In various statements throughout the record, the Veteran has reported that he has had recurring problems with sleep apnea since before he retired from the Air Force. See June 2011 VA Form 9, August 2012 statement. Alternatively, he indicated that he believed that his sleep apnea was related to his service-connected PTSD. See February 2010 VA Form 9. Therefore, the Board finds that a VA examination is necessary for determining the nature and etiology of the disorder. With respect to the Veteran's claim of service connection for skin cancer, the Board notes that, while the Veteran was afforded a VA examination in March 2010 in connection with his claim, the VA examiner did not provide an etiology opinion. Therefore, the Board finds that the March 2010 VA examination is inadequate and that a remand is required for another examination and medical opinion to address the nature and etiology of the Veteran's skin cancer. Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development through the appropriate depository to obtain any outstanding service treatment notes and post-service treatment notes, to include any records of treatment at Cam Rahn Bay US Air Force Hospital in Vietnam; the US Air Force Clinic at Randolph Air Force Base in Universal City, Texas; Wilford Hall US Air Force Medical Center at Lackland Air Force Base in San Antonio, Texas; and Brooke Army Medical Center (now San Antonio Regional Medical Center) at Fort Sam Houston in San Antonio, Texas. All efforts to obtain the information should be documented in the claims file. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for PTSD, bilateral hearing loss, sleep apnea, left knee pain, bilateral carpal tunnel syndrome, skin cancer, and vertigo. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. A specific request should be made for identifying information related to private treatment providers, Dr. M.O. (initials used to protect privacy), a neurologist, in San Antonio, Texas; and Dr. N.O. (initials used to protect privacy), a hand surgeon, in San Antonio, Texas, as identified in a September 2010 notice of disagreement. A specific request should also be made for any private dermatology records, as noted in June 2011 and February 2013 VA Form 9's. In addition, a specific request should be made for identifying information related to private treatment provider, Dr. H. (initials used to protect privacy), a sports, occupational, and knee specialist, in San Antonio, Texas, and a private facility in which the Veteran received injections in his left knee, as identified in a November 2015 statement. The AOJ should also secure any outstanding VA medical records. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should also review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the General Rating Formula for Mental Disorders. In that regard, the examiner should identify the nature, frequency, severity, and duration of the symptoms associated with the Veteran's service-connected PTSD. Additionally, the findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner should also review all pertinent records associated with the claims file. The examiner should comment on the severity of the Veteran's bilateral hearing loss and report all signs and symptoms necessary for rating the disability. In addition to the objective test results, the examiner must fully describe the functional effects caused by the Veteran's hearing loss, including, specifically, to what extent his hearing loss decreases his functioning in terms of performing his daily activities (e.g. such as the ability to communicate effectively with other people) as well as the impact of the hearing loss on his occupational functioning. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. A) The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea is causally or etiologically related to his military service. B) The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea was caused by his service-connected PTSD. C) The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea was permanently aggravated (increased in severity) by his service-connected PTSD. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's PTSD did not cause his sleep apnea, the examiner should address whether his PTSD could have worsened his sleep apnea. In that regard, "Aggravation" means a permanent worsening of a disease or disability beyond its natural progression. If aggravation is found, the examiner must, to the extent possible, attempt to establish a baseline level of severity of the condition prior to aggravation. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. 6. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any skin cancer that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not (a 50% or greater probability) that the Veteran's current skin cancer is related to his military service. In doing so, the examiner should address the Veteran's contentions that the disorder is related to exposure to Agent Orange during service and/or sun exposure during his service in Vietnam. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. 7. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, to include, but not limited to, providing the Veteran with additional VA examinations, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs