Citation Nr: 1822945	
Decision Date: 04/18/18    Archive Date: 04/25/18

DOCKET NO.  15-23 263A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).  

2.  Entitlement to service connection for erectile dysfunction, to include as a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing, and as secondary to PTSD, prostate cancer, ischemic heart disease, hypertension and esophageal cancer.  

3.  Entitlement to service connection for prostate cancer, to include as a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing.  

4.  Entitlement to service connection for esophageal cancer to include loss of voice, to include as a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing.  

5.  Entitlement to service connection for ischemic heart disease, to include as a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing, and as secondary to esophageal cancer to include loss of voice.  

6.  Entitlement to total disability rating due to individual unemployability (TDIU).   


REPRESENTATION

Veteran represented by:	James Curfman, Agent


ATTORNEY FOR THE BOARD

B. Cannon, Associate Counsel


INTRODUCTION

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 Veteran served on active duty in the United States Army from September 1952 to August 1954, from October 1961 to August 1962, and from January 1991 to September 1991, with additional service in the National Guard.  

This matter comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.   By correspondence received in March 2018, the Veteran withdrew his prior request for a hearing.  

In the December 2014 rating decision, the RO denied separate claims of entitlement to service connection for ischemic heart disease and entitlement to service connection for hypertension.  The Veteran filed a notice of disagreement regarding the ischemic heart disease claim, but not the hypertension claim.  At this time, the Board will not assume jurisdiction over a claim of entitlement to service connection for hypertension.  

The issues of entitlement to service connection for erectile dysfunction, prostate cancer, esophageal cancer, and ischemic heart disease, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO.


FINDING OF FACT

The evidence of record supports a nexus between an in-service stressor and the Veteran's current diagnosis of posttraumatic stress disorder (PTSD).  


CONCLUSION OF LAW

The criteria for service connection for posttraumatic stress disorder (PTSD) have been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 military service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay 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).  Service connection may 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).

These three elements are satisfied with regards to the Veteran's claim of entitlement to service connection for posttraumatic stress disorder (PTSD).  Regarding the first element, a February 2014 VA PTSD examination (received 3/5/14) states that the Veteran has a diagnosis of PTSD under DSM-5.  Regarding the second element, the Veteran reports an incident where a fellow serviceman fell off of a ship onto a boat.  According to the examiner, "the [V]eteran's stressor is conceded due to his MOS as medic."  See also January 2014 deferred rating (received 1/23/14).  The Board further notes that pursuant to 38 U.S.C.A. § 1154(a), where a Veteran is seeking service connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.

Regarding the third element, the February 2014 VA examiner also states that the Veteran's PTSD "is due to the incident in the South China Sea" and that this stressor is the event "for which the ptsd is related to and the symptoms relate specifically to that incident."  This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008).  As all of the elements are satisfied, the Veteran is entitled to prevail on his claim with respect to the diagnosis of PTSD.  As no other current psychiatric disorder has been linked by medical opinion evidence to service, the claim is otherwise denied.


ORDER

Entitlement to service connection for PTSD is granted.  


REMAND

A remand is required for additional evidentiary development and VA examinations.  

I.  Chemical and Radiation Exposure

The Veteran has argued that his erectile dysfunction, prostate cancer, esophageal cancer, and ischemic heart disease are a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing.  He served as a Chemical, Biological, and Radiological (CBR) Officer from November 1952 to March 1953.  He was stationed in Okinawa, Japan from September 1953 to August 1954.  See statement in support of claim for PTSD (received 6/25/13).  

The Veteran has discussed many sources of in-service chemical and radiation exposure.  In a May 2015 RO informal hearing, the Veteran argues that exposure to herbicide agents occurred while serving in Okinawa, Japan.  Also at the May 2015 RO informal hearing, he argues that his prostate cancer is the result of exposure to radioactive bars used during training exercises.  In a September 2014 Radiation Risk Activity Information Sheet, the Veteran states that he toured Hiroshima and Nagasaki while stationed in Japan and received x-rays in the field in his medical company.  He also mentions that he was exposed to radiation from "teeth x-rays, chest x-ray, MRI's on an annual basis in both my military and civilian careers."  See also July 2014 deferred rating (received 7/22/14).  

In a January 2014 VA memo (received 1/23/14), the RO states that it lacks the information required to request verification of Agent Orange exposure from the Joint Services Records Research Center (JSRRC).  This statement is largely based on the fact that the Veteran's service treatment records contain no evidence of service in Vietnam or exposure to Agent Orange.  However, since that time, the Veteran has provided additional testimony that specifically indicates exposure to herbicide agents, including but not limited to Agent Orange, while serving in Okinawa, Japan.  A remand is required to request verification from the JSRRC regarding herbicide agent exposure in Okinawa, Japan during the Veteran's service there from September 1953 and August 1954.  

The RO should also contact the United States Army Chemical, Biological, Radiological and Nuclear School (USACBRNS), formerly the United States Army Chemical Corps School, to see if that group has any evidence of chemical or radiation exposure during the Veteran's tenure as a CBR Officer from November 1952 to March 1953 or while stationed in Okinawa, Japan from September 1953 to August 1954.  Their web address, which contains contact information, is: http://www.wood.army.mil/newweb/pao/pao.html.

The Board also notes that the RO has undertaken additional development.  The RO has obtained a response from the Department of Defense indicating that "[t]he [V]eteran's name was not found in the U.S. DoD and VA Chemical Biological Warfare Exposure System" and that the Veteran's claim was not substantiated by the voluminous personnel records that he submitted.  See October 2015 third-party correspondence (received 10/9/15).  The RO has also obtained a response from the Army Dosimetry Center, stating that it was unable to locate any records for the Veteran.  See September 2014 correspondence (received 9/22/14).  

The Board further notes that during the May 2015 RO informal hearing, the Veteran argued that the VA failed to fulfill its duty to assist by not obtaining medical records from Ehrling Bergquist Hospital, where the Veteran was diagnosed with prostate cancer.  But by e-mail correspondence received July 15, 2014, the VA Records Management Center indicates that it has "conducted several searches of [its] files activity" and has been unable to locate the requested records.  The Board therefore finds that an additional request to obtain these medical records would be futile.  

II.  VA Examinations

A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  See also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017).

These elements are satisfied with regard to erectile dysfunction.  Regarding the first element, an April 2008 private medical record (received 8/29/13, page 16 of 75) contains a diagnosis of erectile dysfunction.  Regarding the second element, the Veteran argues that this disorder is a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing, and as secondary to PTSD.  Regarding the third and fourth elements, there is an indication that erectile dysfunction could be related to exposure to these substances, but there is insufficient evidence of record by which the Board can make a decision.  As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion.  

The McLendon elements are also satisfied with regard to prostate cancer.  Regarding the first element, private medical records indicate treatment for prostate cancer in 1996.  Regarding the second element, the Veteran argues that this disorder is a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing.  Regarding the third and fourth elements, there is an indication that prostate cancer could be related to exposure to these substances, but there is insufficient evidence of record by which the Board can make a decision.  As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion.

The McLendon elements are also satisfied with regard to esophageal cancer.  Regarding the first element, private medical records indicate treatment for esophageal cancer in 2004.  Regarding the second element, the Veteran argues that this disorder is a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing.  Regarding the third and fourth elements, there is an indication that prostate cancer could be related to exposure to these substances, but there is insufficient evidence of record by which the Board can make a decision.  As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion.

The McLendon elements are also satisfied with regard to ischemic heart disease.  Regarding the first element, private medical records contain evidence of heart disease.  Regarding the second element, the Veteran argues that this disorder is a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing, and as secondary to esophageal cancer.  Regarding the third and fourth elements, there is an indication that a heart disorder could be related to exposure to these substances, but there is insufficient evidence of record by which the Board can make a decision.  As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion.

Finally, the Veteran's TDIU claim is inextricably intertwined with the claims remanded for further development.  Accordingly, they must be considered together, and thus a decision by the Board on the Veteran's TDIU claim would at this point be premature.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).

VA treatment records to November 19, 2015, have been associated with the claims file.  Therefore, the RO should obtain all relevant VA treatment records dated from November 20, 2015, to the present before the remaining issues are decided on the merits.  Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Contact the United States Army Chemical, Biological, Radiological and Nuclear School (USACBRNS), formerly the United States Army Chemical Corps School, for verification of the Veteran's claimed exposure to ionizing radiation, chemical testing, biological testing, radioactive bars used in training exercises, and herbicide agents, including but not limited to Agent Orange, while serving as a CBR Officer from November 1952 to March 1953 and while stationed in Okinawa, Japan from September 1953 to August 1954.  Their web address, which contains contact information, is: http://www.wood.army.mil/newweb/pao/pao.html.  A list of the chemicals that the Veteran was exposed to, or may have been exposed to, should be compiled if possible.  Any additional action necessary for independent verification of the exposure, including follow-up action requested by the contacted entity, should be accomplished.  If in-service chemical or radiation exposure cannot be verified or conceded, the RO should notify the Veteran and his representative of this fact, explain the efforts taken to obtain this information and describe any further action to be taken.  The Veteran and his representative should be given an opportunity to respond.  All requests, notifications, and responses should be associated with the claims file.  

2. Contact the JSRRC for verification of the Veteran's claimed exposure to herbicide agents, including but not limited to Agent Orange, and any other chemicals while stationed in Okinawa, Japan from September 1953 to August 1954.  If necessary, sequential requests should be made until the entire timeframe is covered.  All requests and responses should be associated with the claims file.  The results of this development should be outlined in a memorandum for the record, including whether these records support exposure to herbicide agents while in Okinawa, Japan.  

3. After completing the above development to the extent possible, associate with the claims folder all records of the Veteran's VA treatment from November 20, 2015, to the present.  If no records are available, the claims folder must indicate this fact.  Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file.

4. After completing the above development to the extent possible, provide examinations and obtain medical opinions regarding the nature and etiology of any current or previously-diagnosed erectile dysfunction, prostate cancer, esophageal cancer, or ischemic heart disease.  The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions:  

a. Whether the Veteran has any current or previously-diagnosed erectile dysfunction, to include as a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing, and whether it is at least as likely as not (a 50 percent or better probability) that this disorder was incurred in the Veteran's service, including but not limited to as a result of exposure to any chemicals or radiation identified by the RO.  The examiner should also address whether this disorder could be the result of visiting Hiroshima and Nagasaki while stationed in Okinawa, Japan between September 1953 and August 1954.  The examiner should also address whether this disorder could be the result of x-rays performed on the Veteran in the field in his medical company.  The examiner should also address whether this disorder could be the result of in-service tooth x-rays, in-service chest x-rays, or in-service MRIs.  

b. Whether the Veteran has any current or previously-diagnosed erectile dysfunction that (i) is proximately due to PTSD or (ii) was aggravated by PTSD.

c. Whether the Veteran has any current or previously-diagnosed prostate cancer, to include as a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing, and whether it is at least as likely as not (a 50 percent or better probability) that this disorder was incurred in the Veteran's service, including but not limited to as a result of exposure to any chemicals or radiation identified by the RO.  The examiner should also address whether this disorder could be the result of visiting Hiroshima and Nagasaki while stationed in Okinawa, Japan between September 1953 and August 1954.  The examiner should also address whether this disorder could be the result of x-rays performed on the Veteran in the field in his medical company.  The examiner should also address whether this disorder could be the result of in-service tooth x-rays, in-service chest x-rays, or in-service MRIs.

d. Whether the Veteran has any current or previously-diagnosed esophageal cancer to include loss of voice, to include as a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing, and whether it is at least as likely as not (a 50 percent or better probability) that this disorder was incurred in the Veteran's service, including but not limited to as a result of exposure to any chemicals or radiation identified by the RO.  The examiner should also address whether this disorder could be the result of visiting Hiroshima and Nagasaki while stationed in Okinawa, Japan between September 1953 and August 1954.  The examiner should also address whether this disorder could be the result of x-rays performed on the Veteran in the field in his medical company.  The examiner should also address whether this disorder could be the result of in-service tooth x-rays, in-service chest x-rays, or in-service MRIs.

e. Whether the Veteran has any current or previously-diagnosed ischemic heart disease, to include as a result of exposure to herbicide agents, ionizing radiation, and/or chemical/biological testing, and whether it is at least as likely as not (a 50 percent or better probability) that this disorder was incurred in the Veteran's service, including but not limited to as a result of exposure to any chemicals or radiation identified by the RO.  The examiner should also address whether this disorder could be the result of visiting Hiroshima and Nagasaki while stationed in Okinawa, Japan between September 1953 and August 1954.  The examiner should also address whether this disorder could be the result of x-rays performed on the Veteran in the field in his medical company.  The examiner should also address whether this disorder could be the result of in-service tooth x-rays, in-service chest x-rays, or in-service MRIs.

f. Whether the Veteran has any current or previously-diagnosed ischemic heart disease that (i) is proximately due to esophageal cancer or (ii) was aggravated by esophageal cancer.

The examiner should provide a complete rationale for any opinions offered.  If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so.

5. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims.  If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. 

The appellant 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).

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 J. Skaltsounis 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs