Citation Nr: 1805309 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-29 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability. 3. Entitlement to service connection for sleep apnea, to include as due to herbicide agent exposure, and as secondary to service-connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from September 1960 to August 1962, August 1963 to October 1969, October 1973 to September 1985, and October 1990 to October 1993. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing in December 2017. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues seeking service connection for type II diabetes mellitus, erectile dysfunction, and sleep apnea are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is needed prior to adjudication of the issues on appeal. With regards to the Veteran's claim for entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure, there is no evidence, and the Veteran does not contend, that his diabetes had its onset during or is otherwise directly related to his periods of active service. Instead, the Veteran contends that his current disability is related to his claimed in-service herbicide agent exposure. The Board's analysis will therefore focus on this contention. The Veteran contends he was exposed to Agent Orange in Vietnam in April 1968. In statements in February and March 2013, May 2014, and at his December 2017 hearing, the Veteran stated that in April 1968 he had to go on emergency leave from the U.S.S. Arlington when his father passed away. The Veteran stated the U.S.S. Arlington was operating off the shore of Vietnam, and he was flown via helicopter to an air craft carrier and then either to Da Nang Air Base or Cam Ranh Bay Air Base for 12 to 14 hours before flying to Los Angeles. In support of the Veteran's statements, the Veteran's military personnel records show that he was absent from the U.S.S. Arlington from April 1, 1968 to May 9, 1968. Specifically, the military personnel record shows his absence from the U.S.S. Arlington was charged as "transit" on April 2, 1968, special leave from April 3, 1968 to May 2, 1968, as "travel time" from May 4, 1968 to May 7, 1968, and as "transit" from May 8, 1968 to May 9, 1968. These travel records illustrate the Veteran was absent from the U.S.S. Arlington in accordance with the Veteran's statements; however, the records do not place the Veteran in Vietnam. Therefore, further development is necessary to verify the Veteran's statements that he was in Vietnam prior to flying to the United States. Concerning the claim of entitlement to service connection for erectile dysfunction, the Veteran contends that his current erectile dysfunction is secondary to type II diabetes mellitus and service-connected hypertension. In particular, in his March 2011 application, the Veteran contends his erectile dysfunction is due to his hypertension medications. Following a July 2011 VA examination, the examiner diagnosed the Veteran with erectile dysfunction and impotence. The examiner opined that the Veteran's impotence is at least as likely as not a complication of diabetes. The examiner reasoned that the Veteran's impotence is due to macro vascular complications related to diabetes. However, as the Veteran's claim of entitlement to service connection for type II diabetes mellitus is being remanded for further development, the claim of entitlement to service connection for erectile dysfunction is inextricably intertwined with the type II diabetes mellitus claim. Therefore, the Veteran's claim of entitlement to service connection for erectile dysfunction must be remanded to the AOJ because service connection based on the secondary theory of entitlement cannot be granted unless the Veteran is already service connected for the disability on which the secondary theory of entitlement is based. The Veteran has been service connected for hypertension since October 1985, but there is no opinion in the record as to whether the Veteran's erectile dysfunction is proximately due to or the result of his hypertension or aggravated by his hypertension. The Veteran takes Amlodipine, Valsartan, Hydrochlorothiazide, Isosorbide, and Metoprolol for his hypertension. As is noted above, the Veteran contends his erectile dysfunction is due to his hypertension medications. As a lay person, the Veteran is competent to report symptoms capable of lay observation, but the questions at issue in this case are complex medical questions and the Veteran is not competent to opine as to the etiology of the disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, a VA expert medical opinion is necessary to address the etiology of the Veteran's erectile dysfunction. Regarding the claim for entitlement to service connection for sleep apnea, to include as due to herbicide agent exposure, and as secondary to service-connected hypertension and dysthymic disorder, the Veteran has not been provided with a VA examination for sleep apnea. As is noted above, further development is necessary to determine if the Veteran was exposed to Agent Orange; therefore, this claim is inextricably intertwined with the finding of whether the Veteran was exposed to herbicide agents. Irrespective of that finding, sleep studies in September 2012 and May 2014 at private laboratories showed mild obstructive sleep apnea/Hypopnea Syndrome with significant oxyhemoglobin desaturation. In addition, nurse practitioner A.M., a private treatment provider, stated in November 2017 that the Veteran has sleep apnea and that the contributors of the disease can be traced back to years of physical and emotional stress. The Veteran submitted a medical journal article in February 2013 addressing the association between sleep apnea and hypertension. As there is a current disability and an indication the disability is related to service-connected disabilities, a VA examination is necessary to assess the etiology of the Veteran's sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested). 1. Obtain and associate with the Veteran's electronic record any outstanding VA treatment records from March 2015 onward. 2. With any needed assistance from the Veteran, obtain any identified outstanding private treatment records. 3. Obtain the deck logs for the U.S.S. Arlington for April 1968 through May 1968. All attempts and responses should be documented in the claims file. If any records are unavailable, then annotate the file and notify the Veteran accordingly. If deck logs are obtained and associated with the claims file, then review those records to determine whether they support the Veteran's allegations of setting foot on land in Vietnam. The Veteran has asserted he was in Vietnam at Da Nang Air Base or Cam Ranh Bay Air Base for 12 to 14 hours in April 1968 while traveling from the U.S.S. Arlington to Los Angeles for his father's funeral. Notify the Veteran of any determination made on this question. If the above research reveals that any further deck log research is needed, such as for the aircraft carrier to which the Veteran has indicated he was transported before flying to Vietnam, then such should also be accomplished. 4. After completing the development requested in items 1 and 2, forward the claims file, to include a copy of this remand, to a clinician with appropriate expertise for a medical opinion as to the nature and etiology of the Veteran's current erectile dysfunction. The need for another examination is left to the discretion of the medical professional offering the opinion. After reviewing the claims file, the reviewing clinician is to answer the following questions: A) Is it at least as likely as not (a 50% or greater probability) that the Veteran's erectile dysfunction was caused by the Veteran's service-connected hypertension or by any hypertension medications he took during the period of the claim (to include Amlodipine, Valsartan, Hydrochlorothiazide, Isosorbide, and Metoprolol)? B) Is it at least as likely as not (a 50% or greater probability) that the Veteran's erectile dysfunction is aggravated (that is, any increase in severity beyond the natural progress of the condition as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected hypertension or by any hypertension medications he took during the period of the claim (to include Amlodipine, Valsartan, Hydrochlorothiazide, Isosorbide, and Metoprolol)? If the Veteran's current erectile dysfunction has been aggravated by his service-connected hypertension or by any hypertension medications he took during the period of the claim, the clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The clinician must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. After completing the development requested in items 1, 2, and 3, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of the Veteran's sleep apnea. His electronic claims file, including a copy of this decision and remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The examiner should provide an opinion on the following: A) Is it at least as likely as not (a 50% or greater probability) that the Veteran's sleep apnea was caused by the Veteran's service-connected hypertension or dysthymic disorder? B) Is it at least as likely as not (a 50% or greater probability) that the Veteran's sleep apnea is aggravated (that is, any increase in severity beyond the natural progress of the condition as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran's service-connected hypertension dysthymic disorder? If the Veteran's current sleep apnea has been aggravated by his service-connected hypertension or dysthymic disorder, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. C) If, and only if, it is determined that the Veteran set foot on land in Vietnam, then is it at least as likely as not (50 percent or greater probability), that the Veteran's sleep apnea is related or attributable to his military service, to include the alleged exposure to Agent Orange? The examiner must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. Finally, after completing the above actions, as well as any other development that may be warranted, readjudicate the Veteran's claims in light of all the evidence of record. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). These claims 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. §§ 5109B, 7112 (2012). _________________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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) (2017).