Citation Nr: 1803739 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 12-35 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a cardiac disability. 3. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD), bipolar disorder, and depression. 4. Entitlement to service connection for a prostate disability. 5. Entitlement to service connection for erectile dysfunction. 6. Entitlement to service connection for a respiratory disability, including mesothelioma, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from July 1948 to July 1949 and from May 1952 to January 1954. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in February 2015. This matter was originally on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Indianapolis, Indiana. In December 2014, the Veteran testified at a videoconference hearing. A transcript of that hearing is included in the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for a respiratory disability, including mesothelioma, to include as secondary to asbestos exposure, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hypertension was not manifested during service or within a year of separation from service and is not shown to be related to active service. 2. A cardiac disability was not manifested during service or within a year of separation from service and is not shown to be related to active service. 3. An acquired psychiatric disorder was not manifested during service and is not shown to be related to active service. 4. A prostate disability was not manifested during service and is not shown to be related to active service. 5. Erectile dysfunction was not manifested during service and is not shown to be related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a cardiac disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (2017) 4. The criteria for service connection for a prostate disability have not been met. 38 U.S.C.A §§ 1101, 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (2017) 5. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C.A §§ 1101, 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters Pursuant to the Board's February 2015 Remand, the Appeals Management Center (AMC) obtained all outstanding VA treatment records, readjudicated the claim, issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's February 2015 Remand. Stegall v. West, 11 Vet. App. 268 (1998). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in February 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. Moreover, during the December 2014 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In November 2015, the Veteran was provided with authorization forms to obtain treatment records from Dr. Bohney, Dr. Robertson, and Dr. Deal. The Veteran did not complete and return the forms. The Veteran has not been afforded a VA examination with an opinion as to the etiology of his claimed disabilities. Such an opinion is "necessary" under 38 U.S.C. § 5103A(d) when: (1) there is competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the Veteran suffered an event, injury or in service or has a disease or symptoms of a disease within a specified period, (3) there is an indication the current disability or symptoms may be associated with service, and (4) there is not sufficient medical evidence to make a decision. See 38 U.S.C. § 5103A(c)(4). In this case, as there is no evidence establishing that the Veteran hypertension, a cardiac disability, an acquired psychiatric disability, a prostate disability, or erectile dysfunction in service or within a year from his discharge from service and no competent evidence showing the possibility that any of these disorders are related to service, the Board finds that an etiology opinion is not "necessary." Thus, there is no evidence that additional records have yet to be requested or that additional examinations are in order. Service Connection The Veteran seeks service connection for hypertension, a cardiac disability, an acquired psychiatric disability, a prostate disability, and erectile dysfunction. At the December 2014 Board hearing, the Veteran testified that he was first diagnosed with high blood pressure 25 to 30 years prior and that he could not remember if he was treated for high blood pressure on active duty. The Veteran testified that he had been treated for a prostate problem. The Veteran testified that he had psychiatric problems nearly all his life and that he thought that he had depression at the time that he came home from service. The Veteran's son testified that he in the late 1970s/early 1980s his father's depression became so bad that he had to undergo shock treatments. The Veteran testified that he had a heart attack 15 to 20 years prior and had several pacemakers. The Veteran's son testified that his father had had several episodes where stents had been placed due to blockage. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The service treatment records are absent complaints, findings or diagnoses of hypertension, a cardiac disorder, a psychiatric disorder, a prostate disorder, and erectile dysfunction during service. A sick call treatment record notes that the Veteran was seen in June 1953 with irritation of penis. Despite complaints of penis irritation during service, however, the Board cannot conclude a "chronic" condition of the penis, to include erectile dysfunction, was incurred during service. That an injury or illness occurred in service alone is not enough; there must be chronic disability resulting from that injury or illness. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Thus, there is no medical evidence that shows that the Veteran suffered from hypertension, a cardiac problem, a psychiatric problem, a prostate problem, or erectile dysfunction during service. As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Hypertension and cardiovascular-renal disease can be service-connected on such a basis. However, the file does not include any medical records within the year after the Veteran's discharge from service; and the Veteran has not contended that he was diagnosed with either hypertension or heart disease during service or within the year following his discharge from service. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. Hypertension and heart disease were not noted during service. As noted above, at the December 2014 Board hearing, the Veteran testified that he was first diagnosed with high blood pressure 25 to 30 years prior and that he could not remember if he was treated for high blood pressure on active duty. The Veteran also testified that he had a heart attack 15 to 20 years prior and had several pacemakers. The Veteran's son testified that his father had had several episodes where stents had been placed due to blockage. As such, service connection is not warranted under 38 C.F.R. § 3.303(a) or (b). When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In this case, the Veteran clearly has current disabilities. He has been diagnosed as having ischemic heart disease, hypertension, benign prostatic hyperplasia (BPH), erectile dysfunction; and chronic bipolar affective disorder, usually depressive. The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and military service. No medical professional has ever related any of these conditions to the Veteran's active duty service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) [service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service]. In this case, the medical evidence does not show treatment or diagnosis of these problems until a number of years after service. The Board must consider the Veteran's own opinion that he has hypertension, heart disease, a psychiatric disorder, a prostate disorder, and erectile dysfunction which are related to his active duty service. In this case, the Board does not find him competent to provide an opinion regarding the etiology of any of these conditions as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran therein cannot be accepted as competent medical evidence. Thus, the record is absent competent evidence of hypertension, heart disease, a psychiatric disorder, a prostate disorder, and erectile dysfunction during service; competent evidence of hypertension and heart disease within a year following service; credible evidence of continuity of symptomatology; and competent evidence of a nexus between the Veteran's active duty service and diagnoses of ischemic heart disease, hypertension, BPH, erectile dysfunction; and chronic bipolar affective disorder. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for hypertension, a cardiac disability, an acquired psychiatric disability, a prostate disability, and erectile dysfunction; and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a cardiac disability is denied. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD), bipolar disorder, and depression, is denied. Entitlement to service connection for a prostate disability is denied. Entitlement to service connection for erectile dysfunction is denied. REMAND The Veteran seeks service connection for a respiratory disability. At the December 2014 Board hearing, the Veteran testified that he had scarring of his lungs. The Veteran's son testified that there was a period of a few years that his father received compensation, probably in the late 1980s, from the manufacturer for his mesothelioma. The Veteran testified that he had been a commercial electrician and that he was exposed to asbestos while aboard ship in service. The service treatment records indicate that on Report of Medical Examination in January 1954, chest x-rays showed hemangiopericytoma (HPC) of the right lung not considered disabling. A June 2010 Primary Care Note, a new patient visit, noted pulmonary scarring found on prior work up (not mesothelioma per the Veteran per Dr. Lykens). The Veteran underwent VA examination in December 2015; however, although the VA examiner indicated that she reviewed the claims file, no mention was made of the HPC on the Report of Medical Examination on separation from service in January 1954. In addition, the examiner did not address the notation of pulmonary scarring on the June 2010 VA treatment record. As such, the Board finds that the Veteran should be scheduled for an additional examination to address these findings. In addition, in February 2015, the Board directed that the Veteran be requested to supply records for all non-VA treatment or authorize their release so that VA may obtain them on his behalf, including records from Dr. Lykens. The Board noted that it was unclear whether Dr. Lykens was a VA or private physician. It appears that Dr. Lykens may be a private pulmonologist affiliated with multiple hospitals including Indiana University Health North Hospital, the hospital referenced by the Veteran during his Board hearing. Thus, the Board finds that the Veteran should be requested to sign a prefilled authorization form to obtain all of Dr. Lyken's private treatment records both prior to June 2010 and since June 2010. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The Veteran should again be requested to indicate if he has received any VA or non-VA medical treatment for his lung/respiratory disorder that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorization forms for the release of any treatment records not currently on file. A prefilled authorization form should be sent to the Veteran for his signature for all treatment records of Dr. Michael Lykens, Pulmonologist, for the Veteran for a lung disorder. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 2. After the above has been completed, the Veteran should be afforded an appropriate VA examination by an examiner with expertise in diagnosing and treating lung disorders. The claims file must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should identify all current chronic respiratory disorders, and for each identified disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any such disorder began in service, as caused by service, or is otherwise related to the Veteran's active duty service to include symptoms documented during such service. The examiner is asked to address the x-ray findings in January 1954 as well as any current findings. The examiner should provide a complete rationale for any opinion provided. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, 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 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 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs