Citation Nr: 1759905 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 13-03 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a left hand disability manifested by tremors, to include as due to herbicide exposure. 2. Entitlement to service connection for a right hand disability manifested by tremors, to include as due to herbicide exposure. 3. Entitlement to service connection for a bilateral knee disability manifested by tremors, to include as due to herbicide exposure. 4. Entitlement to service connection for gout, to include as due to herbicide exposure. 5. Entitlement to service connection for a lung disability, to include as due to herbicide exposure. 6. Entitlement to service connection for a prostate disability, to include as due to herbicide exposure. 7. Entitlement to a rating in excess of 50 percent prior to January 20, 2016, and to a rating in excess of 70 percent beginning January 20, 2016, for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active duty from May 1969 to November 1970, to include service in the Republic of Vietnam (RVN). Amongst his many decorations, the Veteran was awarded the Combat Infantry Badge for his service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In a March 2012 statement, the Veteran prematurely requested a hearing before the Board. Later, in his January 2013 substantive appeal, the Veteran declined a hearing before the Board. As such, the hearing request is deemed withdrawn and there is no bar to proceeding with the appeal. This case was previously before the Board in February 2015, at which point it was remanded for additional development. It has now been returned to the Board for further appellate action. The issues of entitlement to service connection for gout and a lung disability are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a bilateral hand tremor, or a diagnosed bilateral hand disability. 2. The Veteran does not have a bilateral knee tremor, or a diagnosed bilateral knee disability. 3. A prostate disability is not etiologically related to the Veteran's active service. 4. The occupational and social impairment resulting from the Veteran's PTSD has more nearly approximated total for the entire period on appeal. CONCLUSIONS OF LAW 1. A bilateral hand disability was not incurred in or aggravated by active service and the incurrence or aggravation of a bilateral hand disability during active service may not be presumed. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. A bilateral knee disability was not incurred in or aggravated by active service and the incurrence or aggravation of a bilateral knee disability during active service may not be presumed. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. A prostate disability was not incurred in or aggravated by active service and the incurrence or aggravation of a prostate disability during active service may not be presumed. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for a rating of 100 percent for PTSD have been met for the entire period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Hands and Knees The Veteran has asserted that he has disabilities in his hands and knees, manifested by a constant tremor. Specifically, the Veteran asserts that he has bilateral hand and knee disabilities as a result of his exposure to herbicides during active service. The Veteran has not asserted, and the evidence does not show, that a tremor disorder is directly related to his active service. STRs are silent of any treatment for, or diagnosis of a hand or knee tremor while the Veteran was in active service. At his November 1970 separation examination, the Veteran specifically denied any hand or knee disabilities and did not report any tremors. Post-service medical evidence shows that the Veteran's hands, specifically, were evaluated in July 2004 for another service connection claim relating to a fracture sustained in service. The examiner noted that the Veteran's only complaint regarding his hands was some recurring pain in the area of the fracture. On physical examination, the examiner found no gross deformity, and strength was within normal limits. The examiner specifically noted a lack of neurological defects. In October 2012, the Veteran was afforded another VA examination. He reported difficulty gripping objects, and increased pain resulting in him dropping objects. He denied any hand injury or trauma aside from the aforementioned fracture. He reported occasionally wearing a brace for support. Imaging was conducted which returned no abnormal findings. In August 2013, the Veteran was afforded another VA examination. The Veteran reported that his tremors started approximately 10 years prior, and that it began in his knees and spread to his left hand. He reported shaking intermittently but was unable to identify a precipitant. Motor strength was found to be 5/5 in his hands and knees. Sensory was intact to fine touch, vibration and position. The examiner noted that gait was normal. In January 2016, the Veteran was once again examined in compliance with the Board remand. The examiner stated that the Veteran did not previously or currently have a central nervous system condition. The examiner referred to the absence of a tremor noted in his August 2013 VA examination, and a distinct absence on his separation examination. Upon physical examination, the examiner found no evidence of any muscle weakness in the upper or lower extremities, no bowel functional impairment, no voiding dysfunction, and normal gait and station with good heel walk. Motor strength was found to be 5/5 and normal across the board with regard to tone, bulk, dexterity, and coordination. The examiner noted that he saw no tremor and normal handwriting. No symptoms were found to be attributable to any peripheral nerve conditions. Grip on both hands, with pinch were all normal, and the Veteran's knee extension was normal as well. There was no diagnosis made. The Board acknowledges that the Veteran has asserted that he has a tremor that is a result of his exposure to herbicides. However, while lay persons are competent to report certain symptoms, they are not competent to diagnose a tremor or nervous system disorder or provide an opinion linking such a disorder to active service or herbicide exposure as that would require medical testing and expertise outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2001); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a diagnosis or medical opinion with regards to a tremor or nervous system disorder. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the evidence does not show that the Veteran has a diagnosed tremor disorder in his hands or knees. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a tremor or nervous system disorder affecting the Veteran's hands and knees is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for a Prostate Disability The Veteran has asserted that he has benign prostatic hyperplasia (BPH), manifested by a slightly slow urinary stream that was caused by his active service. Specifically, the Veteran asserts that his prostate disability is a result of his exposure to herbicides during active service. STRs are silent of any treatment for, or diagnosis of a prostate disability while the Veteran was in active service. However, STRs indicated that the Veteran was treated for a urinary tract infection in April 1970 while in active service that seemingly resolved without residual. At his November 1970 separation examination, the Veteran denied prostate issues and did not report any urinary issues. Post-service medical records indicated that the Veteran was diagnosed with BPH in 2004 when he complained of a slightly slow urinary stream. In December 2012, the Veteran's prostate was examined and the examiner noted abnormal results illustrated by a mildly enlarged prostate which was otherwise smooth and without nodules. The Veteran stated that he had no pain as a result. In January 2016, the Veteran was afforded a VA examination. The Veteran once again reported a slightly slow urinary stream associated with nocturia, and said that he takes medication for this disorder. He also reported an increased voiding dysfunction marked by daytime voiding every one to two hours. The examiner diagnosed erectile dysfunction and BPH. At a separate examination in January 2016, the Veteran was marked as not having any bowel functional impairment, no voiding dysfunction, no recurrent symptomatic urinary tract infections and, specifically, no voiding dysfunction causing signs of urinary frequency. In October 2016 an addendum opinion was provided by a VA examiner. The examiner noted the Veteran's urinary tract infection during active service, but added that no prostatitis was noted, and that there were seemingly no symptoms until 2004 when the Veteran was diagnosed with BPH and erectile dysfunction secondary to hypogonadism. The examiner opined that it was less likely than not that the Veteran's prostate disability was as due to his active service or herbicide exposure, because neither of those conditions have been found to be associated with herbicide exposure. The examiner went on to opine that there was no specific in-service injury besides the urinary tract infection, and BPH and erectile dysfunction usually developed later in life after the age of 40, with the exact cause being unknown. Lastly, the examiner stated that BPH was a very common finding in the general population in men over 50. The Board finds that the VA medical opinion is the most probative evidence of record. The examiner considered the Veteran's alleged in-service injury and ruled it out as it seemingly resolved without injury and no prostatitis being noted upon examination in service. Further, the VA examiner considered the assertions of herbicide exposure as a possible cause; however, as BPH and erectile dysfunction are not disabilities which are presumed as due to herbicide exposure, service connection may not be presumed. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran has asserted that his prostate disability is a result of his exposure to herbicides. However, while lay persons are competent to report certain symptoms, they are not competent to diagnose a prostate disability or provide an opinion linking such a disorder to active service or herbicide exposure as that would require medical testing and expertise outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2001); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a diagnosis or medical opinion with regards to his prostate disability or a likely etiology. As there is no competent evidence establishing that the Veteran's prostate disability is related to active service, including presumed herbicide exposure; BPH is not a disease associated with herbicide exposure; and the Veteran has not been diagnosed with prostate cancer, the Board concludes that a prostate disability was not incurred in or aggravated by active service and may not be presumed to have been so incurred. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a prostate disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating for PTSD The Veteran has asserted that he should have higher ratings for his PTSD because his social and occupational functioning is worse than contemplated by the currently assigned ratings. Specifically, in pertinent part, the Veteran asserts that a rating in excess of 50 percent is appropriate for the time period between January 29, 2013 and January 20, 2016. On September 8, 2014, the Veteran was afforded a VA examination. The examiner confirmed the Veteran's diagnosis for PTSD and noted that he did not have more than one mental disorder. The examiner stated that the Veteran had occupational and social impairment with reduced reliability and productivity and that there had been no significant mental health, legal, behavioral, or social changes since the Veteran's last VA examination in 2011. The Veteran showed symptoms of depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining social and work relationships. The examiner noted that the Veteran's symptoms of PTSD included many which had worsened in degree and severity since his last examination. Later that month on September 22, 2014, the Veteran submitted a notice of disagreement with the 50 percent rating. The Veteran stated that his medications had been increased, that his nightmares had increased in severity, that he went days without being able to sleep, that he was increasingly irritable, and that he was very depressed and isolated. The Veteran reported that he could not handle stress, and feared things like going to the grocery store because of his desire to remain isolated. Lastly, the Veteran stated that he had many thoughts of suicide and that he constantly rambled and his mind wandered. A review of the record shows that the Veteran sought fairly regular mental health treatment at that time. A review of the treatment notes indicated that he was consistently showing symptoms of sleep impairment, anxiety, depression, mood dysregulation, hypervigilance, guilt, anger, nightmares, memory impairment, and intrusive thoughts. He was generally found to have a restricted affect and impairment in mood, and his insight and judgment were usually noted to be fair. In January 2016, the Veteran was afforded another mental health VA examination. The Veteran reported irritable behavior, depression, hypervigilance, exaggerated startle response, sleep disturbances, memory loss, problems with concentration and grossly inappropriate behavior. The Veteran's daughter spoke with the examiner without the Veteran present to express concerns about her father's worsening memory, irritability, and frustration with everything around him. She explained that her father had recently run her mother off, and they now lived separately. She expressed further concern that the Veteran did things like cooking but forgot to turn off the stove, and forgot basic memories both short and long term. The examiner noted that there was no evidence of hallucinations or delusions, and that the Veteran was oriented to time, place, and person. However, the examiner noted that the Veteran's thinking and abstract-conceptual thinking was impaired as the Veteran could not answer any of the three proverb questions presented to him without difficulty. Further, the Veteran's memory was severely impaired as he did not successfully complete the memory tests. Then, the examiner noted that the Veteran's mental control was also impaired. The examiner opined that the Veteran exhibited occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and mood. Later in January 2016, the Veteran was afforded a VA examination to assess his employability. The examiner noted that the Veteran's PTSD and depression caused severe impairment in social functioning that reduced his ability to be around others, and that increased noise levels, uncertainty, and other things both known and unknown, served as triggers which further exacerbated his symptoms. The examiner noted that the Veteran showed depression, anxiety, chronic sleep impairment, memory loss, impairment of short and long term memory such as forgetting names and events, flattened affect, impaired judgment, impaired abstract thinking, difficulty in establishing and maintaining relationships, and grossly inappropriate behavior. The examiner opined that the Veteran's ability to function outside of a very protected setting would be highly challenging and that interaction with any but a few people would likely increase his symptoms. The Board finds that the Veteran is entitled to a 100 percent rating for his PTSD for the entire period on appeal. In this regard, the evidence of record shows that the Veteran's PTSD has resulted in total occupational and social impairment for the entire period. At his September 2014 VA examination, the examiner specifically noted that the Veteran's impairment was significant and had a rather severe impact on his daily life. The Veteran has been found to have some significant impairment in maintaining relationships with people outside his immediate family. The Veteran typically had symptoms of depression, flattened affect, sleep disturbance, nightmares, anxiety, lack of interest and motivation, anhedonia, isolation, avoidance, and hypervigilance. The Veteran was maintained on medication and still has somewhat significant impairment. The Veteran's judgment, insight, and impulse control were generally noted to be either limited or fair. He also experienced suicidal and homicidal ideations. At his January 2016 VA examinations, the examiners specifically noted that the Veteran's impairment was significant and had a total impact on his daily life. The Veteran was noted to exhibit additional symptoms of memory loss, grossly inappropriate behavior, and suicidal ideations and have rendered him incapable of functioning outside of a very protected environment. Further, the examiners have opined that the Veteran is incapable of managing his own finances. Therefore, the Board finds that the evidence supports a finding that there are total deficiencies in all aspects of the Veteran's life due to psychiatric symptoms. As such, the Board finds that a rating of 100 percent is warranted for the entire period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that the results of the VA examinations, the symptoms described in the VA examination reports, and the mental health treatment records do not indicate that the Veteran has experienced all of the symptoms associated with a 100 percent rating for PTSD for the entire period on appeal. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is total occupational and social impairment sufficient to warrant a 100 percent rating even though all the specific symptoms listed for this evaluation are not manifested for the entire period on appeal. ORDER Entitlement to service connection for a left hand disability is denied. Entitlement to service connection for a right hand disability is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a prostate disability is denied. Entitlement to a rating of 100 percent for PTSD for the entire period on appeal is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In February 2015, the Board remanded this appeal, in pertinent part, so that the Veteran may be afforded a VA examination with respect to his claims of service connection for a lung disability and gout. The Board directed the AOJ to obtain an opinion from medical professional with sufficient expertise to determine the nature and etiology of any current gout and lung disability, and to opine, with sufficient rationale, as to whether it was as due to the Veteran's active service and his presumed herbicide exposure sustained therein. With regard to the Veteran's claim of service connection for gout, the Veteran asserted he has had joint pain since shortly after his release from service, if not during. The Veteran has asserted that during active service, he was frequently stationed in the jungle for days at a time wherein he was exposed to many different elements. He has asserted that he has had pain since that time. The Veteran did not begin receiving treatment at his local VA Medical Center (VAMC) until approximately March 2004, at which point it was clear that he had already been diagnosed with gout previously as he was receiving medication for it. He has stated that he was unable to retrieve any earlier medical records confirming his date of diagnosis, but that it dated back to very shortly after his separation from service. In January 2016, the Veteran was scheduled for an examination. The examiner confirmed the Veteran's diagnosis of gout, and noted that the Veteran stated his symptoms began with pain in his great toe, and that he received treatment shortly after service. The examiner did not provide an opinion as to etiology. In July 2016, a supplemental opinion was given wherein the examiner opined that the Veteran's gout was less likely than not due to his service-connected condition. No rationale was provided. The examiner then opined that the Veteran's gout was less likely than not due to his exposure to herbicides because there is no medical link known between gout and herbicide exposure. The examiner then opined that since there was no mention of complaints or diagnosis of joint pain in active service, there was no evidence to support a direct link to the Veteran's time in service. While the examiner's opinion with respect to herbicide exposure is sufficient, the Board finds the examiner's opinion with respect to direct service connection to be inadequate. Initially, the examiner opines that the Veteran's gout is less likely than not related to his service connected condition, when the Veteran has not claimed gout as secondary to any service-connected condition. Then, the examiner takes absence of noted symptoms in service to be dispositive proof of a lack of nexus, therefore improperly conflating a lack of symptoms to a lack of a link between the diagnosed disability and the Veteran's active service. Seemingly, the examiner did not consider the Veteran's contentions about the circumstances of his service, his exposure to the elements, and the potential impact that being in the jungle for days at a time may have on the body. As such, the Board finds that the January and July 2016 VA medical opinions did not accomplish the objectives set forth in the February 2015 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is required for a medical opinion which addresses the aforementioned directives. With regard to the Veteran's claim of service connection for a lung disability, the February 2015 Board remand directed the AOJ to obtain a medical opinion which addressed whether the Veteran's diagnosed bronchitis and benign prostatic hypertrophy disabilities were causally related to his active service, to include his presumed exposure to herbicides. In January 2016, the Veteran was afforded a VA examination in compliance with the Board remand. The Veteran conveyed to the examiner a list of his symptoms, and the conditions of his service. The examiner noted shortness of breath with exertion and abnormal pulmonary function studies with a restrictive defect. The examiner did not address the Veteran's previously diagnosed bronchitis or benign prostatic hypertrophy, but stated that there was no evidence of pulmonary disease, and no lung cancer, and as such, opined that any lung disability was less likely than not as due to his herbicide exposure, because there was no available link between herbicide exposure and this type of pulmonary function defect. The examiner did not provide an opinion as to a link for direct service connection. As such, the Board finds that the January 2016 VA medical opinion did not accomplish the objectives set forth in the February 2015 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is required for a medical opinion which addresses the aforementioned directives. Additionally, efforts to identify and obtain any outstanding treatment records should be made before a decision is rendered with regard to the remaining issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of any currently present gout. The Veteran's claims file must be made available to, and reviewed by the examiner. All indicated tests and studies should be conducted. Following a review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gout was caused by or the result of his active service. In rendering an opinion, the examiner should specifically consider the circumstances of the Veteran's service to include his contentions of serving in the jungle on his feet for days at a time. The examiner should consider the Veteran's assertions to be credible. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of any present lung disability shown to be present currently or during the course of this appeal, to include, but not limited to, bronchitis. The Veteran's claims file must be made available to, and reviewed by the examiner. All indicated tests and studies should be conducted. Following a review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any present lung disability was caused by or the result of his active service. In rendering an opinion, the examiner should specifically consider the circumstances of the Veteran's service to include his contentions of serving in the jungle on his feet for days at a time. The examiner should consider the Veteran's assertions to be credible. The examiner should specifically address the Veteran's diagnoses of bronchitis and benign prostatic hypertrophy. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 5. Then, readjudicate the remaining claims on appeal. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for a 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 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. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs