Citation Nr: 18145772 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-29 467 DATE: October 30, 2018 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is granted. REMANDED Entitlement to an increased rating for degenerative joint disease and chondromalacia of the left knee, currently evaluated as 10 percent disabling, is remanded. Entitlement to an increased rating for degenerative joint disease and chondromalacia of the right knee, currently evaluated as 10 percent disabling, is remanded. Entitlement to service connection for colon cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and an anxiety disorder, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, he was exposed to herbicides during active service when traveling to and from the demilitarized zone (DMZ) in Korea. 2. The Veteran is diagnosed with prostate cancer, which is a disability presumed to be associated with herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer as due to herbicide exposure have been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.814. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1968 to September 1972 and in the United States Air Force from December 1990 to May 1991. He had additional service in the North Carolina Army National Guard and the United States Army Reserve with annual periods of active duty for training from 1975 to 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision. In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board has recharacterized the issue of entitlement to service connection for PTSD as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and an anxiety disorder, as is reflected on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board notes that the Veteran testified at another hearing before a different Veterans Law Judge in October 2011. The issues discussed during that hearing have previously been remanded and/or decided by the Board in November 2011, November 2016, and May 2018. The issues remaining on appeal and most recently remanded in May 2018 will be the subject of a separate decision, if in order. In June 2018, the Veteran’s former representative, Jan D. Dils, withdrew her representation. The Veteran has not appointed a new representative since that time; therefore, the Board has recognized him as proceeding pro se in this appeal. Law and Analysis As the Board is taking action favorable to the Veteran by granting service connection for prostate cancer, the decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The Veteran contends that his current prostate cancer was the result of exposure to Agent Orange while stationed in Korea from October 1969 to October 1970 near the DMZ. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The Veteran’s current prostate cancer is not considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, the diagnosed prostate cancer in this case is not included in the list of chronic disabilities. In order to establish entitlement to service connection for a disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The law also provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). Effective February 24, 2011, VA amended regulations to extend a presumption of herbicide exposure to certain veterans who served in Korea. Specifically, VA added a new paragraph (iv) to 38 C.F.R. § 3.307(a)(6) that reads as follows: A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv); see also 38 C.F.R. § 3.814(c)(2). VA has developed specific evidentiary procedures to verify whether a veteran was exposed to herbicides in locations other than Vietnam, and specifically when there is an allegation of exposure to herbicides along the DMZ in Korea. The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). Prostate cancer is associated with herbicide exposure for purposes of this presumption. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309(e). In a May 2018 decision, the Board determined that the evidence of record was in relative equipoise on the factual question of whether the Veteran was exposed to herbicides during service, and specifically, whether he was exposed during frequent travels to and from the DMZ during performance of his duties as a mail courier. Resolving reasonable doubt in the Veteran’s favor, the Board found that the Veteran was presumed to have been exposed to herbicides during service after traveling to and from the Korean DMZ on various occasions from October 1969 to October 1970. 38 C.F.R. §§ 3.307, 3.309. In this case, post-service VA treatment records dated through 2017 and a January 2012 VA examination report reflect diagnoses of and treatment for prostate cancer during the appeal period. Based on the foregoing, the Board finds that service connection for prostate cancer as a result of herbicide exposure is warranted on a presumptive basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although the Board regrets the delay, additional development is needed prior to disposition of the remaining issues. The Agency of Original Jurisdiction (AOJ) afforded the Veteran VA examinations for his right and left knees in March 2011 and January 2012. However, in light of a decision issued by the United States Court of Appeals for Veterans Claims (Court), a remand is required. In Correia v. McDonald, 28 Vet. App. 158, 169 (2016), the Court held that § 4.59 creates a requirement that the examination should record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing,” as well as the necessary findings to evaluate functional loss during flare-ups. See also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this case, the VA examination reports did not include these findings. The Board does note that the December 2017 VA examiner did note consideration of Correia, but the examiner did not provide all of the measurements necessary for joint testing. Therefore, the Veteran should be afforded another VA examination to ascertain the severity and manifestations of his service-connected right and left knee disabilities in compliance with the requirements of Correia. The Board also finds that the issue of entitlement to TDIU is inextricably intertwined with the increased rating claims, as the decision on those issues may impact the outcome of the TDIU issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). With respect to his claim for service connection for an acquired psychiatric disorder, the Veteran has reported several stressors during his military service. Specifically, he stated that he was threatened and that he had to run from armed, drunk Korean soldiers on New Year’s Eve in December 1969 in the Korean village of Kimpo, which caused him to fear for his life (see August 2011 statement; February 2012 VA examination report; August 2016 hearing transcript, p. 33); that his friends and fellow soldiers were killed in Vietnam (see August 2011 statement; February 2012 VA examination report); that he saw a number of Vietnam veterans who were physically disabled (see February 2012 VA examination report); and that his mail truck was stolen while he was delivering mail to headquarters while he was stationed in Korea (see August 2016 hearing transcript, p. 33). The Board notes that the Veteran’s reported stressors have not been verified. In addition, in the February 2012 VA examination report, the VA examiner noted that the Veteran did not have a diagnosis of PTSD based on his examination; however, he listed PTSD as a current diagnosis. He also listed major depressive disorder secondary to colon and prostate cancer and the aggravating memories and symptoms of PTSD as a current diagnosis. Therefore, on remand, a clarifying opinion should be obtained. With respect to the Veteran’s claim for service connection for colon cancer, the Board notes that, although colon cancer is not listed as a disease that the VA has associated with herbicide exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303 (d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Therefore, the Board finds that a VA opinion is necessary to address this theory of entitlement. The Board also notes that the Veteran’s military service does not appear to have been fully verified. During the August 2016 hearing, the Veteran testified that he was diagnosed with a headache disorder during his service in the North Carolina Army National Guard during a period of active duty for training (ACDUTRA). Therefore, the AOJ should verify the Veteran’s complete military service and secure any outstanding service personnel and treatment records, to specifically include any outstanding records from the Veteran’s service in the North Carolina Army National Guard. Regarding the claim for service connection for sleep apnea, the Veteran was afforded a VA examination in January 2012. However, the VA examiner did not provide an etiology opinion. During the August 2016 hearing, the Veteran testified that he believed he developed sleep apnea as a result of exposure to gases that were released from coals used to warm hooches during his service in Korea. See August 2016 hearing transcript, p. 28. Therefore, on remand, another VA opinion is needed. The matters are REMANDED for the following action: 1. The AOJ should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), or any other appropriate repository of records and request the Veteran’s complete service personnel and treatment records. A specific request should also be made for any service treatment records pertaining to treatment for headaches during a period of ACDUTRA in the North Carolina Army National Guard. See August 2016 hearing transcript, p. 23. The AOJ should also verify any periods of active duty, ACDUTRA, and INACDUTRA in the North Carolina Army National Guard and determine whether such periods were federal service. A summary of those dates should be documented in the record. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. All efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice should also be provided to the Veteran and his representative. 2. The AOJ should take all appropriate steps to verify the Veteran’s claimed stressors, to include verification of all in-service incidents, as described by the Veteran over the course of the appeal. His alleged stressors have included, but are not limited to: a) that he was threatened and that he had to run from armed, drunk Korean soldiers on New Year’s Eve in December 1969 in the Korean village of Kimpo, which caused him to fear for his life (see August 2011 statement; February 2012 VA examination report; August 2016 hearing transcript, p. 33); b) that his friends and fellow soldiers were killed in Vietnam (see August 2011 statement; February 2012 VA examination report); c) that he saw a number of Vietnam veterans who were physically disabled (see February 2012 VA examination report); and d) that his mail truck was stolen while he was delivering mail to headquarters while he was stationed in Korea (see August 2016 hearing transcript, p. 33). The request should note that the Veteran was assigned to the 547th Engineer Company, 40th Engineers Topography, at Camp Mercer in Korea from October 1969 to October 1970. 3. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his knees, psychiatric disorders, colon cancer, headaches, and sleep apnea. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 4. Thereafter, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected right and left knee disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the right and left knee disabilities under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the right and left knees. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; or the symptomatic removal of semilunar cartilage. He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The examiner should further state whether the Veteran has any impairment of the tibia and fibula. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examination conducted during the appeal period. See, e.g., March 2011 and January 2012 VA examination reports. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including PTSD sub-scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran’s military service. The examiner should also opine as to whether it is at least as likely as not that the Veteran has an acquired psychiatric disorder that is caused by or aggravated by his service-connected prostate cancer. See, e.g., February 2012 VA PTSD examination report. With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. If there is a verified stressor or if the examiner determines that a personal assault occurred in service, he or she should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any colon cancer that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should address whether it is at least as likely as not that the Veteran’s colon cancer was causally or etiologically related to his military service, to include herbicide exposure therein (regardless of the fact that such an association may not be presumed). (The term “at least as likely as not “does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) 7. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current headaches that may be present. The AOJ should provide the examiner with a summary of the periods of verified active service that may be considered for VA compensation purposes. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment and personnel records, post-service medical records, and statements. It should also be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has headaches that manifested during a verified period of active service or are otherwise causally or etiologically related to a period of active service, to include any injury or symptomatology therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 8. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current sleep apnea that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s obstructive sleep apnea manifested in or is otherwise causally or etiologically related to his military service. In rendering his or her opinion, the examiner should consider the Veteran’s August 2016 hearing testimony in which he stated his belief that his sleep apnea was related to gases that were released from coals to warm hooches during his service in Korea. See hearing transcript, p. 28. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]”38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 9. After completing the above development, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel