Citation Nr: 1820201 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-28 434A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a cardiovascular disorder, to include ischemic heart disease (IHD) and/or peripheral vascular disease. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for dysthymic disorder. 4. Entitlement to an initial compensable disability rating for residuals of prostate cancer. 5. Entitlement to an initial compensable disability rating for erectile dysfunction. REPRESENTATION Veteran represented by: J. Bryan Jones, III, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to August 1970, to include verified service in the Republic of Vietnam from April 1968 to April 1969. The Veteran also served on active duty from September 1971 to May 1972. The Veteran was honorably discharged from his first period of active service and discharged from his second period of active service under conditions other than honorable. Pursuant to a September 2013 VA administrative decision, the Veteran is only eligible for VA compensation benefits for disabilities which began in or are etiologically related to his first period of honorable service. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In August 2017, the Veteran testified a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the Veteran originally filed a claim for, among other disabilities, IHD in July 2012; while the evidence does not reflect he has a diagnosis of IHD, it does reflect he has a heart disorder diagnosed as atherosclerosis (specifically peripheral vascular disease). Given that a veteran, as a lay person, cannot be expected to identify the exact diagnosis for which he is claiming service connection, the Board has broadened and recharacterized the Veteran's claim to include all diagnosed cardiovascular disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). This issues of entitlement to service connection for a heart disorder, to include IHD, and entitlement to a compensable rating for residuals of prostate cancer are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent and probative evidence of record does not demonstrate that the Veteran has a diagnosis of PTSD. 2. The competent and probative evidence of record is at least in equipoise that the Veteran's dysthymic disorder began in or is etiologically related to his first period of active duty service. 3. The competent and probative evidence of record does not demonstrate that the Veteran has a deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a) (2017). 2. The criteria for entitlement to service connection for dysthymic disorder have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for a compensable disability rating for erectile dysfunction have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.31, 4.115b, Diagnostic Code 7522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection Generally Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence 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, 1167 (Fed. Cir. 2004). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Increased Rating Claims Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Factual Background and Analysis Although all the evidence has been reviewed, the Board is not required to discuss each piece of evidence in detail. Therefore, the Board's analysis herein will focus on what the most relevant and salient evidence shows, or fails to show, with respect to the Veteran's claims. See Allday v. Brown, 7 Vet. App. 517, 527 (1995) (finding that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection for PTSD & Dysthymic Disorder The Veteran contends he has PTSD due to events he witnessed and experiences he had in the Republic of Vietnam. His Form DD-214 from his first period of active service verifies he served in Vietnam from April 1968 to April 1969. At his August 2017 hearing before the Board, the Veteran testified that he witnessed enemy gunfire from a distance and that he saw sand bags over people's faces. He stated he dreams about these experiences all the time, got involved with drugs during and following his return from Vietnam, and that he has generally had a difficult time dealing with life since these experiences. He reported disturbed sleep, anhedonia, anxiety, chronic depression, difficulty maintaining employment, drug abuse to numb his feelings, and acknowledged a suicide attempt. The record contains an October 2013 Memorandum verifying that the Veteran's battalion was subjected to rocket and mortar attacks and that while he was stationed in Long Binh area that there was continued verified combat in that area. Based on the foregoing, the Board acknowledges and concedes that the Veteran's claimed stressors occurred. However, service connection for PTSD requires more than just credible supporting evidence that the claimed in-service stressor(s) actually occurred. 38 C.F.R. § 3.304(f). It also requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) and medical evidence of a nexus between current symptomatology and the claimed in-service stressor(s). Id. The Veteran attended a September 2013 VA PTSD examination and the examiner determined that the Veteran did not have a diagnosis of PTSD because the symptoms he described were not clinically significant and did not rise to the level to support a diagnosis of PTSD under DSM criteria. See 38 C.F.R. § 4.125(a). The Veteran has not submitted any additional records demonstrating that he has a diagnosis of PTSD in accordance with VA regulation. Accordingly, absent a diagnosed disability, service connection for PTSD must be denied as a matter of law. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a); see also Brammer, 3 Vet. App. at 225 (1992); McClain, 21 Vet. App. at 321. Service treatment records reflect that on his September 1966 report of medical history for enlistment purposes the Veteran denied frequent trouble sleeping, depression or excessive worry, and nervous trouble. On an April 1970 report of medical history the Veteran denied depression or excessive worry and nervous trouble but acknowledged frequent trouble sleeping. The evidence reflects that the Veteran went AWOL for 48 days during his second period of active service. He was given an undesirable discharge for the good of the service and released in lieu of trial by court-martial. On his April 1972 report of medical history, the Veteran indicated he had a mental breakdown in April 1971 and was hospitalized for approximately five days. The Board notes that while the September 2013 VA examiner did not diagnose PTSD, the examiner did diagnose a dysthymic disorder; however, an etiology opinion was not provided. The examiner acknowledged that the Veteran's answers to questions in the administration of the Millon Clinical Multiaxial Inventory III reflected that he was unlikely to have embellished or attempted to hide problem areas. His scores further indicated that he has had ongoing depression and anxiety symptoms and that his depression appeared to be of a long term nature. In support of his claim, the Veteran submitted a private December 2017 psychological report. The history provided in this report is consistent with the history the Veteran provided to the September 2013 VA examiner. The Veteran indicated he began taking drugs in Vietnam and continued this habit for a while upon returning to the United States; he stated his drug abuse was caused by his attempt to treat his "nerves and sadness." Upon returning from Vietnam, he was unable to keep a job or keep a wife. He has trouble sleeping and drinks at night to help him fall asleep; he reported disturbed sleep and stated he awakens two to three times during the night. The examiner opined that the Veteran's current dysthymic disorder was related to his active duty service. Based on the foregoing, the Board finds that service connection for dysthymic disorder is warranted. The evidence demonstrates the Veteran had emotional difficulties within one year of his honorable active service and those difficulties have persisted. The Veteran's statements have been consistent and the Board finds he is a credible historian. Additionally, the December 2017 private medical report is accurate, contains an adequate rationale, and is therefore, probative; there are no opinions contrary to it. Accordingly, service connection for dysthymic disorder is granted. Increased Rating for Erectile Dysfunction The Veteran's erectile dysfunction has been rated as noncompensable under 38 C.F.R. § 4.115b, Diagnostic Code 7522. The Board finds no other applicable rating criteria relevant to this disability. Diagnostic Code 7522 provides that deformity of the penis with loss of erectile power is rated as 20 percent disabling. 38 C.F.R. § 4.115b. Thus, two distinct criteria are required for a compensable rating: loss of erectile power and deformity of the penis. VA regulation provides that in every instance where the Rating Schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. There is no evidence that the Veteran has any deformity of the penis. None of the medical records associated with the claims file contain any suggestion that there may be deformity of the penis. The Veteran has never contended that he has deformity of the penis. Although physical examination of the penis was not performed at the October 2013 VA male reproductive examination per the Veteran's request, he specifically denied any penile deformity at his August 2017 hearing before the Board. His sole contention regarding his erectile dysfunction is that he is unable to achieve an erection. Thus, the Board concludes that the Veteran has no deformity of the penis and, as such, a compensable rating is not warranted. Diagnostic Code 7522 also directs the adjudicator to review the claim to determine whether special monthly compensation under 38 C.F.R. § 3.350 is warranted. 38 C.F.R. § 4.115b. The Board notes that the Veteran has been granted special monthly compensation for loss of use of a creative organ for the entire period for which service connection has been in effect for erectile dysfunction, and therefore, has not gone uncompensated for this disability. Accordingly, a compensable disability rating for erectile dysfunction is not warranted. The Board has considered the benefit of the doubt doctrine, but as the preponderance of the evidence is against the Veteran's claim, it is not applicable. VA's Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA's duty to notify was satisfied by letters dated May 2012, June 2012, and August 2013. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has also been satisfied in this case. The RO obtained the Veteran's service treatment records and identified private records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has also been afforded VA examinations in connection with his claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473, 486 (2006). ORDER Service connection for PTSD is denied. Service connection for dysthymic disorder is granted. A compensable rating for erectile dysfunction is denied. (CONTINUED ON NEXT PAGE) REMAND Service Connection for a Heart Disorder, to Include IHD The Veteran has verified service in the Republic of Vietnam from April 1968 to April 1969; therefore, he is presumed to have been exposed to herbicide agents, such as Agent Orange, during that time. 38 U.S.C. § 1116 (2012) VA regulations provide a list of diseases associated with exposure to herbicide agents. See 38 C.F.R. §§ 3.307, 3.309. If a Veteran is presumed exposed to herbicide agents, and has a disease associated with exposure to herbicide agents as listed in VA regulations, that disease will be considered to have been incurred in service even though there is no evidence of such disease in service. Id. Although IHD is on the list of diseases associated with exposure to herbicide agents, there is no evidence that the Veteran has a current diagnosis of IHD. See id. However, the Veteran does have a diagnosis of atherosclerosis (specifically peripheral vascular disease), which is not one of the presumptive disabilities listed under VA regulation as being associated with exposure to herbicide agents. While service connection on a presumptive basis is not warranted for atherosclerosis, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Given that the Veteran is presumed exposed to herbicide agents, and given that other heart disorders, such as IHD, are presumed as due to exposure to herbicide agents, the Board finds the "low threshold" has been met which requires that VA obtain an opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Increased Rating for Residuals of Prostate Cancer The Veteran was first diagnosed as having prostate cancer in April 2008. He underwent radiation therapy that year and there has been no local reoccurrence or metastasis. Service connection for residuals of prostate cancer has been in effect since July 26, 2012. At his October 2013 VA examination, the Veteran denied awakening to void during the night. However, at his August 2017 hearing before the Board, he indicated he wakes to void two to three times a night. This evidence suggests that the residuals of his prostate cancer have worsened; therefore, the Board finds a remand is required to obtain a more recent examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a veteran was entitled to a new examination after a two year period between the last VA examination and the veteran's contention that his disability had increased in severity). Additionally, the Board notes that the Veteran receives outside private treatment for residuals of prostate cancer at Regional Urology in Shreveport, Louisiana. On remand, attempts must be made to obtain all outstanding private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he complete and return a signed authorization to allow VA to attempt to obtain identified private medical records on his behalf, to specifically include records from Regional Urology in Shreveport, Louisiana. If the Veteran submits any medical authorization that is insufficient for further action, he should be notified, and any such notification should be properly documented in the claims file. Upon receipt of any valid medical authorization, VA must attempt to obtain any identified private records in accordance with VA regulation. See 38 C.F.R. § 3.159. 2. Afford the Veteran the appropriate VA examination(s) to determine the current severity of any residuals of prostate cancer. 3. Obtain an opinion from a medical professional regarding the etiology of all diagnosed heart disorders, to include atherosclerosis (specifically peripheral vascular disease). A complete copy of the claims file must be made available to the medical professional designated to provide the opinion. Following a complete review of the evidence of record, and with consideration of the Veteran's statements, the medical professional should: (a) Identify all heart disorders present during the pendency of the claim (July 2012 to the present), to include atherosclerosis (specifically peripheral vascular disease). (b) With regard to each diagnosed cardiovascular disorder, determine whether it is at least as likely as not (50 percent probability or higher) that the disorder began in or is related to the Veteran's first period of honorable active duty service (October 1967 to August 1970), to include as due to exposure to herbicide agents, such as Agent Orange. The medical professional is informed that he or she may not base this opinion on the fact that atherosclerosis or any other heart disorder is not on the list of diseases found to be presumptively related to exposure to herbicide agents under 38 C.F.R. § 3.309(e). A complete rationale for this opinion must be provided. Citation to medical literature and accepted medical principles will be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for that finding. 4. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 5. Then, the Veteran's claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. The Veteran 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). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs