Citation Nr: 1745542 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 09-13 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA) due to exposure to herbicides, including as secondary to posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for erectile dysfunction, including as secondary to PTSD. 3. Entitlement to service connection for a prostate disability due to exposure to herbicides. 4. Entitlement to service connection for hypertension due to exposure to herbicides, including as secondary to PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1969, including combat service in Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2015 videoconference Board hearing. In November 2015, the Board reopened the claims of entitlement to service connection for a prostate disability and hypertension. In November 2015 and December 2016, the Board remanded the matters currently on appeal for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In its December 2016 remand, the Board directed the RO to obtain a new VA medical opinion. The remand instructed the VA examiner to determine the current nature and likely etiology of OSA, erectile dysfunction, hypertension, and a prostate disability. The examiner should also have identified and explained the relevance or significance of history, clinical findings, medical knowledge or literature relied upon to reach his or her conclusions so that the discussion of facts and medical principles would be of assistance to the Board. In the January 2017 VA medical opinion, the examiner did not provide an adequate opinion as to the nature and etiology of the four issues on appeal. The examiner provided negative nexus opinions, citing the negative history of the Veteran. The examiner did not discuss any relevant literature she relied upon, or discuss the Veteran's own contentions. The Board finds that VA failed to adequately comply with the Board's remand directives in this regard. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). In addition, the March 2016 VA medical examination provided that the Veteran's erectile dysfunction was etiologically related to "mental health medications/ symptoms." The January 2017 VA examiner did not discuss this evidence which is contrary to her medical opinion as the Veteran is service-connected for PTSD. The examiner also stated there is no medical literature to relate the Veteran's hypertension to PTSD, however, VA's own statements in connection with its rulemaking authority support such an association. VA has found that a presumption of service connection is warranted for hypertensive vascular disease for prisoners of war (POWs). This presumption is based on several medical studies indicating that veterans who have a long-term history of PTSD have a high risk of developing cardiovascular disease and myocardial infarction; thus, since POWs have a relatively high rate of PTSD incurrence, they would presumably be at greater risk of cardiovascular disease potentially to include hypertension. See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). The rationales provided are therefore inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A new VA medical opinion is necessary to reconcile contrary medical opinions and literature. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claim file to a different qualified medical professional than the March 2016 VA examiner, and obtain a new VA medical opinion. The examination must determine the current nature and the likely etiology of OSA, erectile dysfunction, hypertension, and a prostate disability. The examiner must provide opinions as to: 1) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA is etiologically related to service, including herbicide exposure; 2) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA is caused by PTSD; and 3) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's OSA was aggravated by PTSD. The examiner must also provide opinions as to: 1) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's erectile dysfunction is etiologically related to service, to include combat-related jumps and combat-related falls; 2) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's erectile dysfunction is caused by PTSD; and 3) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's erectile dysfunction was aggravated by PTSD. The examiner must also address the March 2016 VA examination which stated the Veteran's erectile dysfunction was etiologically related to the Veteran's mental health. The examiner must also provide opinions as to: 1) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is etiologically related to service, including herbicide exposure; 2) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is caused by PTSD; and 3) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was aggravated by PTSD. Finally, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's prostate disability is etiologically related to service, including herbicide exposure A complete rationale for all opinions expressed should be provided. In doing so, the examiner should reconcile any contrary medical evidence of record. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching his or her conclusions. The Veteran's own contentions (e.g., from his August 2015 hearing) must be considered as well. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After the development has been completed, readjudicate the claims for service connection for OSA, erectile dysfunction, hypertension, and a prostate disability. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and arguments 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). _________________________________________________ A. C. MACKENZIE 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) (2016).