Citation Nr: 21068558 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 20-12 958 DATE: November 10, 2021 ORDER Entitlement to service connection for a prostate condition is denied. Entitlement to service connection for OSA and mild positional sleep apnea is denied. REMANDED Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for cardiovascular disorder, to include as secondary to service-connected Parkinson's disease is remanded. Entitlement to service connection for left upper extremity (LUE) neuropathy and/or a left-hand disability, as secondary to a cardiovascular condition and/or service-connected Parkinson's disease, is remanded. Entitlement to service connection for a right upper extremity (RUE) neuropathy and/or a right-hand disability, as secondary to a cardiovascular condition and/or service-connected Parkinson's disease, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease (PD) with impairment of the right tenth cranial nerve is remanded. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with impairment of the left eleventh cranial nerve is remanded. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with impairment of the right seventh cranial nerve is remanded. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with impairment of the right eleventh cranial nerve is remanded. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with impairment of the left tenth cranial nerve is remanded. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with impairment of the left seventh cranial nerve is remanded. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with weakness of the right lower extremity (RLE) is remanded. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with weakness of the left lower extremity (LLE) is remanded. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with weakness of the left upper extremity (LUE) is remanded. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with weakness of the right upper extremity (RUE) is remanded. Entitlement to an effective date earlier than September 10, 2019, for the grant of service connection for loss of sense of smell, associated with Parkinson's disease is remanded. Entitlement to an effective date earlier than September 10, 2019, for the grant of service connection for constipation, associated with Parkinson's disease is remanded. Entitlement to an effective date earlier than May 24, 2017, for entitlement to Dependents' Educational Assistance (DEA) is remanded. FINDINGS OF FACT 1. Though the evidence shows a history of elevated PSA levels, the Veteran does not have a diagnosed prostate disability, to include prostate cancer, or any identified functional impairment of earning capacity involving the prostate. 2. The Veteran's OSA and mild positional sleep apnea is not related to an in-service injury or disease, to include herbicide agent exposure and/or asbestos exposure and is not secondary to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a prostate condition are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for a sleep disorder, to include obstructive sleep apnea (OSA) and mild positional sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Navy from November 1957 to November 1971, and from November 1971 to April 1976. This case comes before the Board on appeal of rating decisions from November and September 2018. This case was previously before the Board in June 2020. Among other determinations, the Board denied earlier effective date claims for the grant of service connection for Parkinson's disease and its residuals. However, the Veteran appealed the Board's decision to the Court of Veterans Claims (CAVC). In May 2021, the CAVC granted a joint motion for partial remand (JMPR), which vacated and remanded the denial of the earlier effective date claims back to the Board consistent with the JMPR. The Board notes that the Veteran's service connection claim for bilateral hearing loss was granted in an August 2021 rating decision. Therefore, as the service connection claim has been granted, it is resolved and no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Service Connection Generally, to establish service connection a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2019). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). 1. Entitlement to service connection for a prostate condition Here, the Veteran contends that he has a prostate condition that caused by his exposure to herbicide agents. Based on a preponderance of evidence, the Board disagrees. At the outset, to warrant service connection there must be a current disability. In this case, the Veteran has had elevated PSA (prostate-specific antigen) levels in 2014 and 2019; however, the Veteran has not reported any urinary difficulties or other residuals. See August 2021 VA examination. Likewise, the Veteran denied taking any medications or therapy due to a raised prostate specific antigen. Moreover, there is no evidence of prostate cancer. The Board notes that where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, although prostate cancer is an enumerated disability for exposure to herbicide agents, there is no evidence that the Veteran has been diagnosed with prostate cancer. Thus, the presumption does not apply. See 38 C.F.R. §§ 3.307, 3.309 (e). Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 2. Entitlement to service connection for OSA and mild positional sleep apnea Here, the Veteran contends that he is entitled to service connection for OSA and mild positional sleep apnea that was caused or incurred by service, to include exposure to herbicide agents, asbestos, and/or secondary to his service-connected disabilities. Based on a preponderance of evidence, the Board disagrees. At the outset, the Veteran has a current diagnosis of mild positional sleep apnea and obstructive sleep apnea. See August 2021 VA examination. Thus, the first element of service connection is met. Likewise, the second element of direct and secondary service connection have been met. Specifically, the Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. Additionally, the Veteran reported that he was exposed to asbestos as an ordinance mechanic on the USS Forrestal and aircrafts. Furthermore, as to secondary service connection, the Veteran is service-connected for Parkinson's disease. Therefore, to warrant service connection, there must be evidence of a nexus, or link between the Veteran's OSA and mild positional sleep apnea and his exposure to herbicide agents/asbestos and/or his Parkinson's disease, which is generally proven by medical evidence. In that regard, in the August 2021 medical opinion, the examiner opined that the Veteran's OSA and mild positional sleep apnea was not caused or incurred in service to include due to exposure to Agent Orange (AO) and asbestos. The examiner reasoned that the Veteran's sleep disorder and his exposure to AO and asbestos during service are not medically related. She reasoned that the Veteran's OSA and mild positional sleep apnea are separate entities entirely from conditions due to exposure to AO and asbestos. She added that OSA and mild positional sleep apnea are unrelated to AO exposure and asbestos. She stated that a thorough review of medical literature failed to demonstrate a causal relationship, thus, no nexus had been established. Similarly, the examiner opined that the Veteran's sleep disorder was not caused or aggravated by his service-connected PD. She reasoned that the Veteran's sleep disorder was not medically related to the residuals of PD. She explained that a thorough review of medical literature failed to demonstrate a causal relationship, thus, no nexus had been established. See e.g., August 2021 medical opinion. The Board finds the examiner's opinion to be competent, credible, and highly probative. The examiner reviewed the pertinent evidence, examined the Veteran, accounted for his lay statements, and provided an opinion based on the evidence and medical principles. The Board adds that this is little evidence to support that the Veteran's OSA and mild positional sleep apnea is caused or aggravated by his PD. There is medical evidence that suggested the Veteran's neuropathy caused inconsistent sleep due to the pain, but as explained by the examiner, the disease entities are separate and not related. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). 1. Entitlement to service connection for right shoulder disability is remanded. Here, the Veteran contends that his right shoulder disability that is caused or aggravated by his service-connected disability. Specifically, the evidence shows that the Veteran experienced numerous falls associated with instability resulting from his PD and contributed to by his right knee disabilities. In at least one instance, the medical evidence showed that he hurt his right shoulder during a fall. However, in the August 2021 medical opinions, the examiner failed to address whether the Veteran's falls contributed to his right shoulder disabilities. As such, a remand is necessary to obtain an addendum opinion that specifically addresses whether the Veteran's falls have contributed to his right shoulder disabilities. 2. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) is remanded. Here, the Veteran contends that his COPD was caused by his exposure to herbicide agents and/or asbestos. In the August 2021 VA examination, the examiner indicated that the Veteran had diagnoses of COPD in 2016, 2017, and 2020. Yet, in the medical opinion, the examiner indicated that there was no chronic diagnosis made for a respiratory condition, to include COPD. She reasoned that the objective examination was normal, and the Veteran's symptoms were subjective only. Given the medical evidence of record and the VA examination, the examiner's opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has an ongoing diagnosis of COPD and more importantly, his COPD was active during the course of his appeal. Accordingly, on remand, the Veteran's diagnosis should be clarified, and an addendum opinion is required regarding the etiology of any respiratory disorder that was diagnosed during the course of this appeal, even if resolved, as such qualifies as a current disability for VA compensation purposes. 3. Entitlement to service connection for cardiovascular disorder, to include as secondary to service-connected Parkinson's disease is remanded. 4. Entitlement to service connection for bilateral upper extremity (BUE) neuropathy and/or a bilateral hand disability, as secondary to a cardiovascular condition and/or service-connected Parkinson's disease, is remanded. Here, remand is necessary for a Stegall violation. Specifically, in the June 2020 Board decision, the Board directed an examiner to provide an opinion on the etiology of any currently diagnosed cardiovascular disorder and resultant hand disability as an addendum to the April 2018 medical opinion. However, there is no addendum opinion on record. As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Here, the claim for entitlement to a TDIU is inextricably intertwined with the service connection issues listed above, which are being remanded for further evidentiary development. Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered now. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 6. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease (PD) with impairment of the right tenth cranial nerve is remanded. 7. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with impairment of the left eleventh cranial nerve is remanded. 8. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with impairment of the right seventh cranial nerve is remanded. 9. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with impairment of the right eleventh cranial nerve is remanded. 10. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with impairment of the left tenth cranial nerve is remanded. 11. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with impairment of the left seventh cranial nerve is remanded. 12. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with weakness of the right lower extremity (RLE) is remanded. 13. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with weakness of the left lower extremity (LLE) is remanded. 14. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with weakness of the left upper extremity (LUE) is remanded. 15. Entitlement to an effective date earlier than May 24, 2017, for the grant of service connection for Parkinson's disease with weakness of the right upper extremity (RUE) is remanded. 16. Entitlement to an effective date earlier than September 10, 2019, for the grant of service connection for loss of sense of smell, associated with Parkinson's disease is remanded. 17. Entitlement to an effective date earlier than September 10, 2019, for the grant of service connection for constipation, associated with Parkinson's disease is remanded. 18. Entitlement to an effective date earlier than May 24, 2017, for entitlement to Dependents' Educational Assistance (DEA) is remanded. For the earlier effective date issues, a remand is necessary to obtain relevant private treatment records regarding the diagnosis of the Veteran's Parkinson's disease. At issue for earlier effective date is when the Veteran was diagnosed with PD and what symptoms were present at that time. Current medical records indicate that the Veteran was diagnosed with PD either in 2005 or 2007 by his private neurologist. The Veteran's private treatment records regarding the diagnosis and symptoms of his PD are highly relevant to the issues on appeal. Thus, on remand, VA has a duty to obtain the relevant private treatment records beginning in 2005. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding private treatment records beginning in 2005 regarding the diagnosis or symptoms of the Veteran's Parkinson's disease. Likewise, obtain any relevant private treatment records as identified by the Veteran or his representative. All records and/or responses received should be associated with the claims file. 2. Then, obtain addendum medical opinions to determine the etiology of the Veteran's: (a) right shoulder disabilities; (b) respiratory disorder; (c) cardiovascular disorder; and (d-e) bilateral upper extremity neuropathy and/or bilateral hand disability. The VA examiner must review the complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The VA examiner should address the following: 3. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right shoulder disabilities were caused by falls he suffered as a result of instability due to his Parkinson's disease. 4. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right shoulder disabilities were aggravated (i.e., worsened beyond normal progression) by falls he suffered as a result of instability due to his Parkinson's disease. 5. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed respiratory condition, to include COPD, is related to the Veteran's military service, to include as being due to herbicide agent exposure and/or asbestos exposure. 6. Whether it is at least as likely as not (i.e., 50 percent or greater probability) that any currently diagnosed cardiovascular disorder, is related to his active-duty military service, to include as due to herbicide agent exposure or caused or aggravated by his service-connected Parkinson's disease. 7. Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's BUE neuropathy and/or bilateral hand disability, if diagnosed, is related to his active-duty military service, to include as due to herbicide agent exposure or caused or aggravated by his service-connected Parkinson's disease. The examiner must schedule a new examination only if necessary, to provide an adequate opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 8. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 9. Following the review and any additional development deemed necessary, readjudicate the claims. If the AOJ does not grant the claims, issue a supplemental statement of the case (SSOC), and return the claims to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.