Citation Nr: A21017152 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 200228-71456 DATE: October 22, 2021 ORDER New and relevant evidence has been received sufficient to warrant readjudication of the Veteran's service-connection claim for prostate cancer. New and relevant evidence has been received sufficient to warrant readjudication of the Veteran's service-connection claim for PTSD. REMANDED Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension, is remanded. FINDINGS OF FACT 1. New evidence was received after the April 2013 denial that is relevant to the issue of entitlement to service connection for prostate cancer. 2. New evidence was received after the April 2013 denial that is relevant to the issue of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for prostate cancer are met. 38 C.F.R. § 3.2501. 2. The criteria for readjudicating the claim for service connection for PTSD are met. 38 C.F.R. § 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to May 1999. The rating decision on appeal was issued in April 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the February 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claims of entitlement to service connection for prostate cancer, sleep apnea and PTSD for further development, this additional evidence will be considered by the AOJ in the adjudication of that claim. The Board further notes that the Veteran perfected separate AMA appeals for service connection for anxiety and tinnitus, as well as for an increased rating for his low back disability to include entitlement to a total disability based on individual unemployability (TDIU), which are all currently certified to the Board and awaiting adjudication. As such, these claims will be addressed in a separate decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b)(1). The new and material evidence issue regarding entitlement to service connection for PTSD and for prostate cancer has been recharacterized to reflect the applicable evidentiary standard. 38 C.F.R. §§ 3.2501(a)(1), 19.2. Request to Readjudicate the Service Connection Claims for Prostate Cancer and PTSD The AOJ previously denied the Veteran's service-connection claims for prostate cancer and PTSD in an April 2013 rating decision. In the April 2019 rating decision on appeal, the AOJ determined that new and material evidence had not been received sufficient to reopen the previously-denied service-connection claims for prostate cancer and PTSD. As such, the rating decision did adjudicate either issue on its merits. Because April 2019 rating decision was issued after implementation of the AMA, the AOJ used the incorrect evidentiary standard in reviewing the Veteran's claims. The requirement to submit "new and material" evidence to reopen a claim was amended under the AMA. Indeed, under the AMA,VA will readjudicate a claim if "new and relevant" evidence is presented or secured. 38 C.F.R. § 3.156(d). Relevant evidence is evidence that "tends to prove or disprove a matter in issue." 38 C.F.R. § 3.2501. As the statutory definition of "relevant" does not require that the evidence relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim; "new and relevant" evidence is a lower standard than the "new and material" evidence standard. Here, with respect to both the prostate cancer and the PTSD claims, the Board finds that "new and relevant" evidence has been received sufficient to readjudicate the issues. At his Board hearing, the Veteran discussed in-service environmental exposures and stressful experience while serving in the Persian Gulf that are more detailed than previously relayed in prior statements, and are relevant to both the prostate cancer and PTSD claim. Accordingly, readjudication on the merits of both issues is warranted. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer, to include as due to herbicide agents. The Veteran asserts, in pertinent part, that his prostate cancer was due to in-service exposure to herbicide agents in Taiwan, and/or exposure to environmental hazards in the Persian Gulf. As discussed above, the claim warrants readjudication based on receipt of new and relevant evidence. Because the AOJ did not find that new and relevant evidence was received, the AOJ has not yet adjudicated the claim on the merits. Thus, a remand for initial adjudication on the merits is necessary, as the Board is prevented from doing so in the first instance. Indeed, the Veteran has a procedural right to have one review of his appeal by the Secretary under 38 U.S.C. § 7104(a), and AMA amendments do not specifically revoke that right. 2. Entitlement to service connection for PTSD This matter is remanded to correct a pre-decisional duty to assist error. 38 C.F.R. § 20.802(a). In the pre-decisional period, the Veteran was not afforded a VA examination regarding his claim seeking entitlement to service connection for PTSD, in particular. In this case, the Veteran asserts two possible stressors in service that may have resulted in PTSD. First, he reported a terrorist attack and explosion near his work center while deployed to Saudi Arabia. The Veteran also reported another stressor in which a building in Dhahran where the Veteran had slept was later attacked by terrorists. In his statements of support, the Veteran identified the dates he reportedly served in Southwest Asia, which appears to be supported by the record associated with the claims file. Moreover, he identified the units that he was assigned to along with each of his claimed stressors. VA treatment records for the period on appeal reveal a positive screening test for PTSD. See September 2011 VA treatment record. Therefore, the evidence sufficiently satisfies the low bar set forth in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the AOJ erred in failing to obtain a VA medical opinion, and the claim must be remanded to correct this pre-decisional duty to assist error. 3. Entitlement to service connection for sleep apnea The Board initially notes that the Veteran's sleep apnea claim was previously denied in an April 2013 rating decision. In the April 2019 rating decision on appeal, the AOJ reopened the claim and adjudicated it on the merits. Notwithstanding the fact that the AOJ used an incorrect higher evidentiary standard to revisit the merits of the case, the Veteran is not prejudiced by this harmless error. This mater must be remanded to correct a pre-decisional duty to assist error. 38 C.F.R. § 20.802(a). The Veteran discharged from active duty service in May 1999, and was formally diagnosed with sleep apnea by a sleep study performed in 2010. The Veteran contends his sleep apnea may have started in service, or is otherwise related to his service-connected conditions. In January 2015, a private physician, Dr. H.S., opined that sleep apnea causes hypertension, but not that hypertension causes sleep apnea. The Veteran underwent a VA examination for sleep apnea in December 2018. The examiner opined that the Veteran has a diagnosis of obstructive sleep apnea (OSA) that is at least as likely as not proximately due to hypertension. However, the examiner's rationale supported the opposite proposition, highlighting studies from the last two decades that have provided strong evidence for a causal role of OSA in the development of systemic hypertension, and not the other way around. In January 2019 the AOJ requested a clarifying opinion because the rationale did not support the conclusion made by the examiner. In March 2019, VA examiner rendered an addendum opinion to clarify the previous rationale. Here, the examiner clarified that the Veteran's OSA diagnosis is less likely as not (less than 50 percent probability) due to his service-connected hypertension diagnosis. Citing to medical journal evidence, the examiner supported the rationale by stating that the commonly accepted medical literature does not support evidence of hypertension being a causative factor for the development of OSA. Moreover, the examiner reported that there are several risk factors for developing OSA in the commonly accepted medical literature that include obesity, family history, upper airway structural abnormalities, increased age, and male gender. While the evidence listed above suggests that the Veteran's hypertension does not cause his OSA, no opinion was obtained prior to the rating decision on appeal addressing whether hypertension aggravated OSA. On remand, an opinion addressing this prong of secondary service connection should be obtained. In addition, the Veteran's service records confirm in-service treatment for weight problems, and an in-service diagnosis of hypertension. Given that the medical opinion evidence obtained prior to the rating decision on appeal suggests that OSA can be caused by obesity and can cause hypertension, an opinion addressing whether the Veteran's OSA had onset in service should also have been obtained prior to denying the claim. On remand, an opinion addressing direct service connection should also be obtained. The matters are REMANDED for the following action: 1. As the Board has found that new and relevant evidence has been received in support of the Veteran's previously-denied service connection claim for prostate cancer, readjudicate the appeal on the merits. 2. Schedule the Veteran for a psychiatric examination to assess the nature and etiology of any acquired psychiatric disability, and to specifically determine whether PTSD exists. The examiner must review the claims file, and take a history from the Veteran as to the progression of his disability. After review of the record, interview, and examination of the Veteran, the examiner should respond to the following: a) Please clarify all current psychiatric disabilities. If PTSD is diagnosed, the examiner must specify the stressor or stressors upon which the diagnosis is based. b) For any psychiatric disorder identified, is it at least as likely as not that such had onset in, or is otherwise related to the Veteran's period of active duty service? The examiner should consider the Veteran's lay statements regarding the claimed acquired psychiatric disability and its onset, as well as his in-service stressors. A clearly stated rationale for each opinion offered must be provided and cannot be based exclusively on the lack of an in-service record documenting the presence of the claimed disability. 3. Schedule the Veteran for an examination addressing the etiology of his sleep apnea. The claims file should be sent to, and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his disability. Upon review of the record and interview of the Veteran, the examiner should respond to the following: a) Is it at least as likely as not that the Veteran's sleep apnea, diagnosed in 2010, had onset during his period of active duty service, or is otherwise related to service? The examiner should consider (1) that the Veteran was treated for weight problems during service, (2) that he was diagnosed with hypertension during service, and (3) that physicians of record have opined that obesity is a risk factor for sleep apnea, and sleep apnea can cause hypertension. b) Is it at least as likely as not that the Veteran's sleep apnea was caused or aggravated by a service-connected disability, to specifically include hypertension. Opinions should address both causation and aggravation. (Continued on Next Page) All opinions should be supported by a medical explanation or rationale. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.