Citation Nr: 18141417
Decision Date: 10/10/18	Archive Date: 10/10/18

DOCKET NO. 16-29 896
DATE:	October 10, 2018
ORDER
Service connection for prostate cancer is denied.
REMANDED
Entitlement to service connection for low back disability is remanded.
Entitlement to service connection for sinus disability is remanded.
Entitlement to service connection for sleep apnea (claimed as sleep disorder) is remanded.
FINDING OF FACT
Prostate cancer did not have its onset in service, it was not manifested within one year following service discharge, and is not otherwise related to service.
CONCLUSION OF LAW
The criteria for service connection for prostate cancer have not been met.  38 U.S.C. §§ 1101, 1110, 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 1973 to April 1977.
1. Entitlement to service connection for prostate cancer.
Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131.  Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.
Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d).
For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
For malignant tumors, the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service.  38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a).
The Veteran contends that service connection for prostate cancer is warranted because it was caused by or otherwise related to service.
The Board concludes that the evidence preponderates against finding that prostate cancer manifested in service or to a compensable degree within the applicable presumptive period; and the disability is not otherwise etiologically related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110 (wartime), 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a).
The record shows that the Veteran underwent a radical prostatectomy in June 2011, more than three decades after service discharge.  Service treatment records (STRs) are reflect no complaints, treatment or findings for prostate cancer.  October 1976 service separation examination reflects a normal clinical evaluation for “anus and rectum (hemorrhoids, fistulae; prostate, if indicated).” The Veteran denied “tumor, growth, cyst, cancer;” “rupture/hernia;” “piles or rectal disease;” and “frequent or painful urination” on the history part of that exam.  He further described himself as “in good health.”
Although the Veteran may believe his prostate cancer is related to service, he is not competent to offer opinions as to the etiology of his prostate cancer as the etiology is not susceptible to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The etiology of prostate cancer requires medical training and knowledge of diseases and their causes.  Therefore, the Board finds that the Veteran’s medical opinion has no probative value.
The Board assigns greater probative value to the STRs showing normal clinical evaluation at service separation and the Veteran’s denial of problems at that time.  The Veteran has not presented a favorable medical opinion to weigh in this matter.
On balance, the weight of the evidence is against the claim.
Accordingly, the claim for service connection for prostate cancer is denied.  There is no doubt to resolve.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.
REASONS FOR REMAND
2. Entitlement to service connection for low back disability is remanded.
3. Entitlement to service connection for sinus disability is remanded.
4. Entitlement to service connection for sleep apnea (claimed as sleep disorder) is remanded.
Issues 2-4.  To ensure that that VA has met its duty to assist, the Board finds that remand is necessary.  38 C.F.R. § 3.159(c).
An August 2013 VA examination addressed the claims of entitlement to service connection for back disability, sinusitis/rhinitis, and sleep apnea.  The physician rendered a favorable medical opinion for each disability claimed (each was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness).  Notably, however, the rationales provided by the clinician did not clearly support the conclusions reached.  See Stefl v. Nicholson, 21 Vet. App. 102, 124-25 (medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (medical opinions must contain clear conclusions with supporting data, and a reasoned medical explanation connecting the two).  Thereafter, in September 2013, VA obtained addendum opinions from another VA physician.  The September 2013 VA physician indicated that he reviewed the Veteran’s claims file and medical literature.  The physician opined that each of the claimed disabilities were less likely than not (less than 50 percent) caused by or a result of in-service complaints.  The physician supported each conclusion with a reasoned medical explanation.
Because the Veteran’s attorney believes that there was an institutional bias to obtain a negative medical opinion, the Board believes that another medical examination accompanied by an opinion is warranted to dispel the perception of bias in this case.  It is noted that the September 2013 VA medical opinion, unlike the earlier medical opinion, was based on a review of the record and did not include an examination of the Veteran.  It further did not fully address the Veteran’s theories of entitlement.
The Veteran’s attorney advanced the following.  As for the low back, he argued that lumbar strain caused altered body mechanics that led to his current low back disability (degenerative disease of the lumbosacral spine with narrowed disc space).  As for sinus disorder, he argues that documented episodes of colds, sore throat, and ear pain treated in service are linked to the Veteran’s current sinusitis/rhinitis disability.  As for sleep apnea, he argues that the Veteran had sleep disturbance in service during both shift work and later non-shift work demonstrates that his sleep disorder was as likely as not due to sleep apnea and not shift-work related sleep disturbance.
Accordingly, the matters are REMANDED for the following action:
1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability.  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service complaints and findings for abnormal back pathology diagnosed as strain on service separation.  The clinician should address the following: (a) whether any currently shown disorder of the low back at least as likely as not began during active service or is otherwise related to service including lumbosacral strain; and (b) whether arthritis manifested within one year after discharge from service.  Address the Veteran’s theory that in-service lumbosacral strain caused altered body mechanics that led to his current low back disability.
The VA examiner’s attention is drawn to the following:
•	The Veteran served on active duty from May 1973 to April 1977.
•	The Veteran reported back pain in service, including in April 1975 and asserts that he has suffered continuously since service separation. See 1) VBMS entry with document type entitled “Correspondence,” received 02/22/2018; 2) VBMS entry with document type entitled “Form 9,” received 06/22/2016; 3) VBMS entry with document type entitled “NOD,” received 09/26/2014.
•	The Veteran contends that his overcompensation for the chronic pain from his lumbar strain caused joint degeneration. See id.
•	The Veteran’s October 1976 service separation examination reflects “lumbosacral strain, no trauma, NCNS.” See id. See also VBMS entry with document type entitled “STR - Medical,” received 09/21/2015, pg. 13-14.
•	The Veteran also checked “yes” in the October 1976 Report of Medical History when asked if he had or ever had “recurrent back pain.” See VBMS entry with document type entitled “STR - Medical,” received 09/21/2015, pg. 65-65.
•	Of record are the August 2013 VA examination reports and opinions and the September 2013 VA addendum opinions. See 1) VBMS entry with document type entitled “C&P Exam,” received 08/27/2013; 2) VBMS entry with document type entitled “CAPRI,” received 09/03/2013.
A full rationale must be provided for all medical opinions given.  If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so.
2. Schedule the Veteran for a VA examination for his claimed sinusitis/rhinitis, to determine the nature, extent, and etiology of the claimed disability.
The VA examiner’s attention is drawn to the following:
•	The Veteran served on active duty from May 1973 to April 1977.
•	The Veteran reported that he treated for sinus congestion in January 1976 and February 1976; and sought treatment for various aliments to include sore throat, cold, left ear pain, and nasal discharge in 1974, August 1975 and November 1975. See 1) VBMS entry with document type entitled “Correspondence,” received 02/22/2018; 2) VBMS entry with document type entitled “Form 9,” received 06/22/2016; 3) VBMS entry with document type entitled “NOD,” received 09/26/2014.
•	The Veteran also indicated that he was treated on more than one occasion with “Actifed” in-service. See id.
•	The Veteran’s October 1976 occupational physical Report of Medical Examination reflects “chronic coughs or cold and sore throats.” See id. See also VBMS entry with document type entitled “STR - Medical,” received 09/21/2015, pg. 67-68.
•	Of record are the August 2013 VA examination reports and opinions and the September 2013 VA addendum opinions. See 1) VBMS entry with document type entitled “C&P Exam,” received 08/27/2013; 2) VBMS entry with document type entitled “CAPRI,” received 09/03/2013.
The examiner is asked to answer the following questions: 
a.	Whether the Veteran has a current diagnosis of sinusitis/rhinitis?
b.	Is at least as likely as not (50 percent or greater likelihood) that sinusitis/rhinitis had its onset in service or is otherwise related to service, to include in-service complaints and treatment for sinus congestion, sore throat, cold, left ear pain, and nasal discharge?
A full rationale must be provided for all medical opinions given.  If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so.
3. Schedule the Veteran for a VA examination for his claimed sleep apnea, to determine the nature, extent, and etiology of the claimed disability.  
The VA examiner’s attention is drawn to the following:
•	The Veteran served on active duty from May 1973 to April 1977.
•	The Veteran asserts that he has sleep problems while in-service due to his “shift work” or night shift. He stated that he thought it should have “cleared up” when he adjusted to a day-time shift but continued to have the sleeping problems throughout his life. The Veteran reported difficulty sleeping and that he would awaken after 3 hours. See 1) VBMS entry with document type entitled “Correspondence,” received 02/22/2018; 2) VBMS entry with document type entitled “Form 9,” received 06/22/2016; 3) VBMS entry with document type entitled “NOD,” received 09/26/2014.
•	The Veteran checked “no” in the October 1976 Report of Medical History when asked if he had or ever had “frequent trouble sleeping.” See VBMS entry with document type entitled “STR - Medical,” received 09/21/2015, pg. 65-65.
•	Of record are the August 2013 VA examination reports and opinions and the September 2013 VA addendum opinions. See 1) VBMS entry with document type entitled “C&P Exam,” received 08/27/2013; 2) VBMS entry with document type entitled “CAPRI,” received 09/03/2013.
The examiner is asked to answer the following questions: 
a.	Whether the Veteran has a current diagnosis of sleep apnea?
b.	Is at least as likely as not (50 percent or greater likelihood) that sleep apnea had its onset in service or is otherwise related to service, to include working “shift work” (night shift)?
A full rationale must be provided for all medical opinions given.  If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so.
4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached.

 
C.A. SKOW
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Cheng, Associate Counsel