Citation Nr: 18145344 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-17 570 DATE: October 26, 2018 ORDER Service connection for sarcoidosis is denied. Service connection for hypertension is denied. Service connection for obstructive sleep apnea is denied. Service connection for erectile dysfunction is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s sarcoidosis was not shown in service or for many years thereafter, and has not been found to be etiologically related to service. 2. The Veteran’s hypertension was not shown in service or for many years thereafter, and has not been found to be etiologically related to service. 3. The Veteran’s obstructive sleep apnea was not shown in service or for many years thereafter, and has not been found to be etiologically related to service. 4. The Veteran’s erectile dysfunction was not shown in service or for many years thereafter, and has not been found to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for sarcoidosis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Air Force from July 1968 to July 1972. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a May 2012 rating decision of a regional office of the Department of Veterans Affairs (VA). In August 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. §1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Service connection may also be granted on a presumptive basis for certain chronic diseases when manifested to a compensable degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Sarcoidosis, Hypertension, Obstructive Sleep Apnea, Erectile Dysfunction The Veteran generally contends that his sarcoidosis, hypertension, obstructive sleep apnea, and erectile dysfunction are related to his exposure to herbicide agents in service. His claims for service connection was denied by rating decision of May 2012. The Board initially acknowledges that the Veteran had verified in-country service in the Republic of Vietnam. Accordingly, exposure to herbicides is presumed for purposes of this review. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). With that said, however, the Board notes that sarcoidosis, hypertension, obstructive sleep apnea, and erectile dysfunction are not presumptive disabilities associated with exposure to herbicide agents listed in 38 C.F.R. § 3.309(e). Thus, service connection on a presumptive basis as due to herbicide exposure is not applicable. As for service connection on a presumptive basis for chronic diseases, the Board notes that there is also no persuasive medical evidence of record that shows a diagnosis of sarcoidosis or hypertension within one year of the Veteran’s separation from service in 1972 or that symptoms manifested to a compensable degree within any applicable presumptive period following military discharge. In fact, an April 2012 VA examination reflects that sarcoidosis was an incidental finding on a chest X-ray and diagnosed in 1996, which was approximately 24 years after separation from service. Likewise, private treatment records show that a diagnosis of hypertension was not made until March 2011, almost four decades after service separation. As such, the Board finds service connection on a presumptive basis or based on continuity of symptomatology have not been satisfied and therefore, not warranted. 38 C.F.R. §§ 3.303(b), 3.309. With respect to entitlement on a direct basis, the Board finds there is simply no competent medical evidence of record to support a finding that the Veteran’s currently diagnosed sarcoidosis, hypertension, obstructive sleep apnea, and erectile dysfunction had onset in service, or that the conditions are otherwise related to service. As the determinative issue involves the etiological connection relating the current disabilities to service, competent medical evidence is required. The Board finds significantly probative the April 2012 VA examination report reflecting sarcoidosis “currently in complete remission.” See Respiratory Conditions Disability Benefits Questionnaire (DBQ) dated April 2012. Another April 2012 VA examination report for sleep apnea shows that a formal diagnosis of obstructive sleep apnea was not made until March 2011, approximately 39 years after separation from service, which is consistent with the Veteran’s private treatment records and indicated history of sleep apnea. See private medical records of M.A., M.D. and Monroeville Sleep Lab records dated March 2011. The Board further notes that no VA examination or medical opinion was obtained in relation to the issue of service connection for hypertension or erectile dysfunction on appeal. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for hypertension or erectile dysfunction. The Veteran’s service treatment records are absent of any treatment, findings, or diagnosis of hypertension or erectile dysfunction. As indicated above, a formal diagnosis of hypertension was not made until March 2011, approximately 39 years after separation from service. Similarly, erectile dysfunction was diagnosed until September 2011. Essentially, there is no objective evidence of record even suggesting that hypertension or erectile dysfunction may be associated with service. In the absence of required elements above, the Board observes that VA has no duty to provide an examination or obtain an opinion in this case. See 38 U.S.C. § 5103A(a). Moreover, the United States Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A(d) to provide the veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service. This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the Veteran’s claims herein. Consideration has also been given to the Veteran’s personal assertion that his claimed disabilities are related to active service. Although lay persons are competent to provide opinions on some medical issues, as to the specific issues in this case, the etiology of sarcoidosis, hypertension, obstructive sleep apnea or erectile dysfunction fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For instance, hypertension is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include multiple blood pressure readings are needed to properly assess and diagnose the disorder. Accordingly, the Veteran’s assertions do not constitute competent medical evidence. After weighing all the evidence of record, the Board observes that the objective medical evidence of VA examination reports, VA treatment records, and private medical records, stand uncontradicted by any other evidence found in the record and are significantly probative in determining whether the Veteran has substantiated his claims for service connection. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claims for service connection for sarcoidosis, hypertension, obstructive sleep apnea and erectile dysfunction. The benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND PTSD As will be discussed below, the claim on appeal for PTSD has been recharacterized as a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). While the record does not establish that the Veteran meets the diagnostic criteria for PTSD, he was diagnosed with major depressive disorder. See March 2012 VA examination report. In this regard, as the initial examination was restricted to PTSD only, rendering it inadequate, the Board finds that a new examination is warranted to evaluate the Veteran for mental disorders other than PTSD for which he may be entitled to service connection. The matter is REMANDED for the following action: 1. Copies of pertinent updated treatment records should be obtained and added to the claims file. 2. Following completion of the above, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current acquired psychiatric disorder. The electronic record, including a copy of this remand, must be made available for review of the Veteran’s pertinent medical history. A note that it was reviewed should be included in the opinion. Following examination of the Veteran, the examiner is to provide an opinion as to the following: Does the Veteran have a current mental health diagnosis? If so, for each diagnosis, is it at least as likely as not (50 percent probability or more) that the Veteran’s current psychiatric disorder is of service onset or otherwise etiologically related to his active duty service? The examiner should consider the Veteran’s competent lay statements describing his stressful military and combat experiences. A complete rationale for any opinion expressed must be provided. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel