Citation Nr: 21005229 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-33 834 DATE: January 29, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a psychiatric disability, is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to an effective date earlier than October 7, 2014, for the combined service-connected disability rating of 60 percent is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from February 1986 to September 1987 and from December 1990 to April 1991, to include service in the Reserves. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In August 2019, the Board remanded these matters to the RO for further development. As an initial matter, the Board notes that after issuance of the last Supplemental Statement of the Case (SSOC) in July 2020, new VA treatment records and examinations were added to the Veteran’s claims file. A waiver of initial Agency of Original Jurisdiction (AOJ) review of this evidence from the Veteran or his representative is not of record; however, there is no prejudice to the Veteran as his claims are being remanded. The Board notes that upon remand, the AOJ will review this new evidence in the first instance during readjudication of the claim. The Board also notes that in the Veteran’s July 2016 VA Form 9, the Veteran stated that the RO and VA Medical Center committed clear and unmistakable error (CUE) in the processing of all his service-connected ratings and denied claims. To the extent that the Veteran intended this statement to constitute an argument for CUE, such a contention must be specifically pled. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (noting that any claim of CUE must be pled with specificity); Fugo v. Brown, 6 Vet. App. 40 (1993) (holding that a valid claim of CUE requires specific allegations of such error). The Board finds that the Veteran did not specifically plead CUE because he did not identify any rating decision nor any specific disability. To the extent that the Veteran alleged CUE was committed in the August 2013 rating decision, which the matters on appeal currently stem from, such cannot constitute a valid claim for CUE under the provisions of 38 C.F.R. § 3.105(a) because the August 2013 rating decision is not final as to these issues. Therefore, the issue of CUE is not before the Board and the Board also notes that it is without jurisdiction to adjudicate a claim for CUE in a rating decision in the first instance. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD Unfortunately, the Board finds that a remand is warranted because the last VA opinion, in November 2019, is inadequate. In this regard, the November 2019 VA examiner diagnosed the Veteran with unspecified depressive disorder and found that the Veteran’s symptoms did not meet the complete Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria for a diagnosis of PTSD. The VA examiner further found that the Veteran’s unspecified depressive disorder was not related to his military service because there was no evidence that this disorder was related to his service, and, instead, found that his current symptoms were related to his medical conditions. In June 2020, the VA examiner clarified that the Veteran’s unspecified depressive disorder was at least as likely as not related to his diagnosis of prostate cancer in 2007 and diagnosis of radiation neuropathy in 2016. The Board finds that the VA examiner’s opinion and addendum opinion are inadequate because the examiner did not provide any rationale for her conclusions. Specifically, the VA examiner did not explain why she concluded that the Veteran’s unspecified depressive disorder was related to his prostate cancer and not his stated in-service stressors. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, VA treatment records reflect that the Veteran reported current psychiatric symptoms related to his time in service. See e.g., June 2014 VA mental health counseling note (reflecting that the Veteran endorsed PTSD symptoms that he attributed to brief exposure to mortuary affairs and that he had challenges transitioning back into civilian life); September 2019 VA sleep treatment record (reflecting that the Veteran reported recurring nightmares regarding his first trauma call as a firefighter and now has a granddaughter the same age as the first trauma call victim). It does not appear that the November 2019 VA examiner considered these records. As such, a remand is warranted for a VA opinion that includes rationale and consideration of all the medical and lay statements of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for sleep apnea, to include as secondary to a psychiatric disability The Board also finds that a remand is warranted for the Veteran’s claim of service connection for sleep apnea because the last VA opinion of record, in December 2019, is inadequate. In this regard, the December 2019 VA examiner found that the Veteran’s sleep apnea was not related to service because the Veteran did not have a diagnosis of sleep apnea during service and because his sleep apnea was diagnosed in 2014. She further stated that his symptoms of sleep apnea during service were only acute and that there was no evidence of chronicity of care. The Board finds that this opinion is unclear because the VA examiner appeared to base her opinion upon a lack of a diagnosis in service and appeared to conclude that because the Veteran did not have an in-service diagnosis, his symptoms were only acute. She also failed to consider the Veteran’s lay statements regarding ongoing symptoms, including his report during the examination that he was unaware that his symptoms were symptoms of sleep apnea until he underwent a sleep study in 2014. A medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Additionally, the December 2019 VA examiner opined that the Veteran’s sleep apnea was not related to any psychiatric disability because his sleep apnea was diagnosed in 2014, “six years prior to the possibility of any potential psychiatric disorder which may be discovered”. The Board also finds this reasoning unclear given that the Veteran had documented psychiatric diagnoses in 2014. Accordingly, the Board finds that a remand is warranted for an addendum opinion that contains adequate rationale and considers the lay statements of record. 3. Entitlement to service connection for prostate cancer In light of the June 2020 VA examiner’s addendum opinion that the Veteran’s diagnosed psychiatric disorder is related to his prostate cancer, the Board finds that service connection for prostate cancer is intertwined with the Veteran’s remanded appeal for service connection for an acquired psychiatric disorder, to include PTSD. Additionally, the Board finds that it cannot make a fully informed decision on the Veteran’s claim because the evidence of record presents an unclear explanation of the cause of the Veteran’s prostate cancer. In this regard, the Veteran contends that his prostate cancer is related to exposure to toxins while serving as a firefighter during service. Specifically, he argues that he was exposed to firefighting foam containing perfluorooctanoate (PFAS)/perfluorooctanesulfonate (PFOS), which is known to be harmful, as well as diesel fuel from vehicles that were often running while in a closed garage with no exhaust removal systems. During the April 2019 Board hearing, the Veteran also testified that he was exposed to firefighting foam weekly, including Aqueous Film-Forming Foam (AFFF), which is commonly used to jet fuel fight fires. See April 2019 Board hearing transcript, pp 7-8. His military personnel records and service treatment records reflect that he served as a fighter and underwent several occupational examinations/physicals during service. In support of his contentions, he also submitted studies addressing PFAS/PFOS exposure, cancer risk, and exposure to firefighting toxins. See May 2019 Correspondence. In December 2019, the Veteran underwent a VA examination to address the nature and origin of his prostate cancer. The December 2019 VA examiner opined that the Veteran’s prostate cancer was not related to his service because he was not diagnosed with prostate cancer until 2007, which was 16 years after his discharge from service. As rationale, she explained that due to the proximity of the Veteran’s prostate cancer diagnosis to his civilian firefighting job, any connection between firefighting and exposure to toxins is less likely than not related to service, including exposure to toxins as a firefighter in service. The VA examiner did not explain whether she concluded there was an increased risk of prostate cancer as a result of any in-service exposure to firefighting toxins and the Board finds it unclear whether the VA examiner concluded that exposure to these chemicals, as a civilian firefighter or during service, caused the Veteran’s prostate cancer. She also did not discuss any medical principals in concluding that the Veteran’s prostate diagnosis was attenuated from any in-service exposure nor did she discuss the medical/scientific articles the Veteran submitted in support of his claim. As such, this opinion is inadequate because the VA examiner did not adequately or clearly explain how she reached her conclusions. As noted above, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. at 301. Accordingly, the Board cannot properly evaluate the Veteran’s service connection claim until it can clarify whether exposure to in-service toxins while serving as a firefighter caused or is related to the Veteran’s prostate cancer. Therefore, a remand is also warranted for an addendum VA opinion. 4. Entitlement to an effective date earlier than October 7, 2014, for the combined service-connected disability rating of 60 percent As noted in the August 2019 Board remand, because the claims for service connection on appeal were received by VA in June 2012, it is possible that a grant of service connection for any of the above remanded claims could be made effective prior to October 7, 2014. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that where a decision on one issue would have a "significant impact" upon another, and that impact, in turn, could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined). Thus, appellate review of this matter must be deferred pending action on the remanded claims. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated September 2020. 2. Provide the Veteran with another opportunity to identify and/or submit any outstanding private treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, attempt to obtain and associate any identified records with the claims file. 3. Then, obtain an addendum opinion from an appropriate medical professional, other than the November 2019 VA examiner, to determine the nature and origin of the Veteran’s acquired psychiatric disorder, to include PTSD. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The claims file, including a copy of this Remand, should be made available to and be thoroughly reviewed by the examiner. The examiner is asked to respond to the following: (a) Identify/diagnose any psychiatric disorder that presently exists or that has existed during the appeal period. Reference is made to the records that diagnose the Veteran with chronic PTSD, major depressive disorder, other specified depressive disorder (short-duration depressive episodes), unspecified trauma and stressor related disorder, and alcohol abuse. See June 2014 VA mental counseling record and May 2020 VA treatment records. (b) For each identified psychiatric disability, to include unspecified depressive disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such was incurred in or is otherwise related to service, to include the Veteran’s reported stressors related to responding to a child involved in a motor vehicle accident and his time spent with the mortuary affairs unit. The examiner should consider all medical and lay evidence of record, including (1) the April 2014 VA PTSD intake consultation reflecting a determination that the Veteran’s PTSD is not combat or mortuary affairs related; (2) the Veteran’s April 2019 Board testimony that he had trouble sleeping following his first in-service emergency call where he witnessed a child hit by a car; (3) the statements received by VA in May 2019 from the Veteran’s fellow serviceman and roommate that he and the Veteran witnessed dead bodies at the mortuary affairs unit during deployment in Germany and that the Veteran would wake up complaining of bad dreams in service; (4) the September 2019 and August 2020 VA treatment records reflecting that the Veteran reported that one of his triggers is related to witnessing a toddler killed by a car when he was on activity duty in the 1980s and that his granddaughters are currently at that same age; and (5) the May 2020 VA treatment record reflecting a diagnosis of chronic PTSD related to a car accident. The examiner is advised that the Veteran is competent to attest to factual matters of which he had 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. A complete rationale should be provided for all opinions. 4. Obtain an addendum medical opinion from an appropriate medical professional to address the claim for service connection for sleep apnea. The claims file, including a copy of this Remand, should be made available to and be thoroughly reviewed by the examiner. The examiner is asked to respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed sleep apnea had (1) an onset in service; (2) is otherwise related to service, OR (3) is caused OR aggravated by the current claim for service connection for a psychiatric disability, to include PTSD? In providing the above opinion, the VA examiner should ADDRESS the statement submitted by the Veteran’s fellow servicemen and roommate attesting to witnessing his symptoms of sleep apnea during service. See May 2019 Statement in Support of Claim. The VA examiner should also consider (1) the February 2014 sleep study diagnosing the Veteran with severe sleep apnea; (2) the Veteran’s reports during the October 2014 Gulf War VA examination that he had felt tired and run down for years; (3) the Veteran’s report during the December 2019 VA examination that his symptoms had an onset around 1987 and that he was unaware that his symptoms were symptoms of sleep apnea until he underwent a sleep study in 2014; and (4) the medical articles submitted by the Veteran in May 2019 Correspondence discussing a relationship between obstructive sleep apnea and PTSD. 5. Obtain an addendum medical opinion from an appropriate medical professional to address the claim for service connection for prostate cancer, to include as due to exposure to toxins as a firefighter. The claims file, including a copy of this Remand, should be made available to and be thoroughly reviewed by the examiner. The examiner is asked to respond to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s prostate cancer had an onset in service, was caused by service, or is otherwise related to service, to include as due to exposure to toxins as a firefighter therein? In providing the above opinion the VA examiner should ADDRESS the studies submitted by the Veteran in support of his claim and should DISCUSS how they relate to his claim, to include (1) the article entitled Mortality and cancer incidence in a pooled cohort of US firefighters from San Francisco, Chicago, and Philadelphia (1950-2009) (which notes, in relation to firefighting, that a recent meta-analysis of 32 studies reported significant excess risk for prostate cancer and that the International Agency for Research on Cancer (IARC) reviewed 42 studies and reported significant summary risks for prostatic and testicular cancers but concluded that given limited evidence firefighter exposures were only possibly carcinogenic to humans); (2) the review article entitled A critical review of perfluorooctanoate and perfluorooctanesulfonate exposure and cancer risk in humans (noting that existing epidemiologic evidence does not support the hypothesis of a causal association between PFOA or PFOS exposure and cancer in humans but that further research on this topic is warranted); and (3) the online article entitled World Health Organization Says Diesel Exhaust Causes Cancer (noting the World Health Organization classified diesel engine exhaust as a carcinogen and that there is sufficient evidence that exposure causes lung cancer and limited evidence that it increases risk of bladder cancer). The VA examiner should also consider the Veteran’s Board testimony that he was exposed to firefighting foam weekly during service, including Aqueous Film-Forming Foam (AFFF), which is commonly used to fight fires in jet fuels, and that he was diagnosed with prostate cancer at age 41, which is an early age for this diagnosis. See April 2019 Board hearing transcript, pp 6-8.   A clearly stated rationale for any opinion offered should be provided. In this regard, a detailed discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.