Citation Nr: 19141330 Decision Date: 05/29/19 Archive Date: 05/29/19 DOCKET NO. 15-44 589 DATE: May 29, 2019 ORDER Service connection for hypertension to include as due to herbicide exposure is granted. Service connection for a skin disability, to include Tinea cruris, to include as due to herbicide exposure is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for hepatitis is remanded. Entitlement to service connection for sexual dysfunction, to include erectile dysfunction is remanded. Entitlement to service connection for sleep dysfunction, to include insomnia is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the currently diagnosed hypertension is at least as likely as not directly related to herbicide exposure. 2. Resolving all reasonable doubt in the Veteran's favor, the currently diagnosed skin disability, to include Tinea cruris is at least as likely as not directly related to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have been satisfied. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 2. The criteria for entitlement to service connection for Tinea crusis have been satisfied. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from September 1969 to December 1970, including a tour of duty in the Republic of Vietnam. He received the Vietnam Service Medal, among other decorations, for this service. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2013 (hypertension, tinea cruris, hepatitis) and August 2014 (sexual dysfunction, sleep dysfunction, obstructive sleep apnea) rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Houston, Texas and St. Paul, Minnesota, respectively. In June 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. With regards to the claims for service connection for hypertension and Tinea cruris, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Furthermore, given the favorable outcome in this decision that represents a full grant of these issues, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Entitlement to Service Connection for Hypertension and Tinea Cruris. The Veteran contends his currently diagnosed hypertension and Tinea cruris are directly related to herbicide exposure during his active service in the Republic of Vietnam. After considering the lay and medical evidence of record, the Board finds that service connection is warranted for hypertension and Tinea cruris. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Neither hypertension nor Tinea cruris are on the presumptive list of diseases associated with herbicide exposure. 38 C.F.R. § 3.309(e). Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the VA Secretary has determined that a presumption of service connection is not warranted for any disease not affirmatively named in the presumptive list, including hypertension and Tinea cruris. See 77 Fed. Reg. 47,924 (Aug. 10, 2012). Based on the law, the Veteran cannot benefit from this presumption, regardless of whether he was exposed to herbicides in service. In short, hypertension and Tinea cruris are not one of the presumptive diseases for herbicide exposure and there is no presumption of service connection based on herbicide exposure for the claimed hypertension nor Tinea cruris. See 38 C.F.R. § 3.309(e); see also Notice, 75 Fed. Reg. 32540-03 (2010). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for claimed residuals of exposure to herbicides may also be established by showing that a disorder is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). As an initial matter, the Board finds that the Veteran has current diagnoses of hypertension and Tinea cruris. Specifically, a February 2018 private disability benefits questionnaire (DBQ) shows the Veteran was diagnosed with hypertension in 2010. Similarly, a February 2018 private DBQ showed the Veteran was diagnosed with Tinea cruris in 2010. Further, in November 2013 the Veteran underwent VA examinations and was diagnosed with both hypertension and tinea cruris respectively. Next, the Veteran served in the Republic of Vietnam during the Vietnam Era; therefore, he is presumed to have been exposed to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Specifically, his DD214 indicates that he had foreign service in Vietnam during the Vietnam Era. Finally, the Board finds that the medical evidence of record supports a causal link between the Veteran's in-service herbicide exposure and his current hypertension and Tinea cruris. As previously stated, the Veteran underwent VA examination in November 2013 to determine the nature and etiology of any hypertension and skin disabilities. After diagnosis the Veteran with hypertension, the VA examiner opined that it was less likely than not incurred in service. The rationale provided was that the Veteran’s service medical records contained no diagnosis of hypertension or elevated blood pressure levels. Similarly, the VA examiner opined that the Veteran’s Tinea cruris was less likely than not incurred in service. The rationale provided was that the Veteran’s service medical records contained no dermal conditions. In February 2018, a private DBQ completed by Dr. P.T., indicated the Veteran was diagnosed with hypertension and opined that the hypertension was associated with the Veteran’s service-connected PTSD. The private physician also completed a Skin Diseases DBQ and diagnosed the Veteran with Tinea versicolor. In March 2018, Dr. P.T. submitted medical opinions that opined it was at least as likely as not that the Veteran’s hypertension and tinea cruris were caused by the Veteran’s exposure to herbicides during service. The rationale provided for the hypertension was that research from the National Institute of Health indicated there was a direct connection between Dioxine exposure and hypertension. The rationale provided for the Tinea cruris was, that Dioxine exposure affects the Thymus gland in regulating immunity and a reduction in the immune system lowers the body’s ability to fight opportunistic skin infections. The Board finds Dr. P.T.'s opinions to be competent and credible, and as such, entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Specifically, the opinions rendered were based on personal treatment and examination of the Veteran, subject matter expertise, and citations to peer-reviewed medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Conversely, the Board find that the VA opinions regarding hypertension and Tinea cruris are less probative. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Specifically, the rationale for both opinions is primarily based on a lack of treatment in service for the claimed disabilities, with nothing further provided. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claims. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the hypertension and Tinea cruris. However, given the existence of evidence both for and against the claims, the Board finds that the competent evidence is in favor of finding that the hypertension and Tinea Cruris are the result of in-service herbicide exposure. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for hypertension and a skin disability, to include Tinea cruris. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The Claims for Obstructive Sleep Apnea is Remanded. The Veteran contends service connection is warranted for obstructive sleep apnea. After review of the evidence, a remand is necessary to allow the Board to make a fully informed decision. The Veteran has undergone a sleep study that diagnosed obstructive sleep apnea. In February 2018, Dr. P.T., opined the Veteran’s obstructive sleep apnea was associated with his service connected PTSD but provided no rationale to support this conclusion. In March 2018, the Veteran underwent a VA examination to determine the etiology of the obstructive sleep apnea. The VA examiner opined the obstructive sleep apnea was less likely than not caused by service, however, the rationale is based primarily on a lack of in-service treatment and the Veteran’s reports of snoring. As such, a new examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. The Claim for Hepatitis is Remanded The Veteran contends service connection is warranted for hepatitis. After review of the evidence, a remand is necessary to allow the Board to make a fully informed decision. The Veteran’s service treatment records are silent for any treatment for, or diagnosis of, hepatitis. However, the Veteran does not contend that hepatitis began during service, rather that it was incurred in service and presented many years later. See June 2018 Board Hearing Transcript. VA treatment records show the Veteran reported treatment for Hepatitis C in 2010 but are silent for a current diagnosis of the disability. The Board notes the Veteran underwent a VA examination in November 2013 that provided a positive nexus between Hepatitis and the Veteran’s service. However, the diagnosis provided during that examination was based on the Veteran’s reports and the VA examiner went on to indicate that the Veteran had not been diagnosed with hepatitis C. Further, blood tests conducted showed liver enzymes within normal limits and the HCV PCR was negative, indicating no active disease. VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his or her claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). After review of the record, a remand is necessary to determine whether the Veteran has a current diagnosis of hepatitis. 3. The Claim for a Sexual Dysfunction is Remanded The Veteran contends service connection is warranted for a sexual dysfunction, including erectile dysfunction. After review of the evidence, a remand is necessary to allow the Board to make a fully informed decision. In February 2018, Dr. P.T. completed a male Reproductive Organ Conditions DBQ and indicated the Veteran was diagnosed with erectile dysfunction. On the form, Dr. P.T. indicated that PTSD and hypertension medications are known causes of erectile dysfunction but added nothing further. In March 2018, the Veteran underwent a VA examination to determine the etiology of the Veteran’s erectile disfunction. The VA examiner opined the Veteran’s erectile dysfunction was less likely than not proximately due to the Veteran’s service-connected PTSD. The rationale provided was that there was significant gap in time between the two diagnoses. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). After review of the record, a remand is necessary to determine the etiology of the Veteran’s erectile dysfunction. 4. The Claim for a Sleep Disorder is Remanded At the June 2018 Board hearing, the Veteran indicated that he experienced a sleep disorder including not being able to sleep. The Veteran has indicated that this sleep disorder may be related to, but is separate from, the service-connected PTSD. To date, the Veteran has not been provided a VA examination to determine the nature and etiology of any sleep disabilities, as such, a remand is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The matters are REMANDED for the following action: 1. Associate any VA treatment records since February 2018 with the Veteran’s electronic claims file. 2. After completion of the above-specified development. Obtain an addendum medical opinion on the etiology of the Veteran’s obstructive sleep apnea. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that the current sleep apnea had onset in service or is etiologically directly related to active service? The examiner must discuss the Veteran's reports of severe snoring in service. b) Is it at least as likely as not (50 percent probability or greater) that the current sleep apnea is caused by the Veteran's service-connected disabilities, including PTSD? The examiner must discuss Dr. P.T.’s February 2018 opinion that the Veteran’s obstructive sleep apnea was associated with his service-connected PTSD. c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that the sleep apnea is aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities, including PTSD? If the VA examiner opines that the sleep apnea is aggravated by the PTSD, he/she should indicate the degree of disability before aggravation and the current degree of disability. A rationale should be given for all opinions and conclusions rendered. 3. Arrange for the Veteran to undergo an appropriate VA examination with respect to his service connection claim for hepatitis. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the examiner for review. All indicated tests and studies should be accomplished. After completion of the examination and review of the evidence, the examiner should provide the following opinions: a) Does the Veteran have a current diagnosis of hepatitis at any time during the appeal period or any residuals thereof? b) If the Veteran is found to have a current diagnosis of hepatitis or any residuals thereof, is it at least as likely as not (i.e., a fifty percent or greater probability) that any current hepatitis or residuals of hepatitis was incurred during active service or related to any risk factors in service, to include the use of an air gun to administer vaccinations? The examiner must comment on the positive nexus in the November 2013 VA examination. A complete explanation must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Obtain an addendum medical opinion regarding the Veteran’s erectile dysfunction. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that the current erectile dysfunction had onset in service or is etiologically directly related to active service? b) Is it at least as likely as not (50 percent probability or greater) that the current erectile dysfunction is caused by the Veteran's service-connected disabilities, including PTSD or hypertension? The examiner must comment on Dr. P.T. February 2018 statement that PTSD and hypertension medications are known causes of erectile dysfunction. c) Is it at least as likely as not (50 percent probability or greater) that the erectile dysfunction is aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities, including PTSD and hypertension? If the VA examiner opines that the erectile dysfunction is aggravated by the PTSD or hypertension, he/she should indicate the degree of disability before aggravation and the current degree of disability. A rationale should be given for all opinions and conclusions rendered. 5. Schedule the Veteran for a VA examination to determine the etiology of any sleep disorders, other than obstructive sleep apnea. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the examiner for review. All indicated tests and studies should be accomplished. After completion of the examination and review of the evidence, the examiner should provide the following opinions: a) Does the Veteran have a current diagnosis of any sleep disorders, including insomnia? b) If the Veteran is found to have a currently diagnosed sleep disorder, including insomnia, is it at least as likely as not (i.e., a fifty percent or greater probability) that any current sleep disorder was incurred during active service? c) Is it at least as likely as not (50 percent probability or greater) that the current sleep disorder is caused by the Veteran's service-connected disabilities, including PTSD? d) Is it at least as likely as not (50 percent probability or greater) that the sleep disorder is aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities, including PTSD? If the VA examiner opines that the sleep disorder is aggravated by the PTSD, he/she should indicate the degree of disability before aggravation and the current degree of disability. A rationale should be given for all opinions and conclusions rendered. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.