Citation Nr: 21071984 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-31 888 DATE: December 1, 2021 ORDER Entitlement to service connection for a urinary disability, diagnosed as lower urinary tract symptoms (LUTS), to include as due to a service-connected disability, is granted. Entitlement to service connection for obstructive sleep apnea is granted. FINDINGS OF FACT 1. The most probative is approximately in equipoise concerning whether the Veteran's urinary disability, diagnosed as LUTS, is aggravated by a service-connected disability. 2. The most probative evidence reflects that sleep apnea was aggravated by symptoms associated with service-connected residuals of prostate cancer and LUTS. CONCLUSIONS OF LAW 1. The criteria to establish service connection for service connection for a urinary disability, diagnosed as LUTS, are met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria to establish service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3,303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1960 to October 1980. This matter comes to the Board of Veterans' Appeals (Board) from an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In March 2020, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the March 2020 hearing is associated with the file. The issues on appeal, among others, were previously before the Board in August 2020, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for a urinary disability, to include as due to a service-connected disability Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Analysis The Veteran contends that he has experienced a urinary disability that is either proximately due to his active duty or caused or aggravated by a service-connected disability. Specifically, in several filings and in testimony offered at the March 2020 Board hearing, the Veteran that a disability manifested by frequent urination may be associated with his service-connected prostate cancer. For the reasons expressed below, the Board concludes that the most probative evidence supports the Veteran's contentions under the theory of secondary service connection, and thus, the Board's analysis of this issue will focus on this theory of entitlement. Consequent to the Board's March 2020 remand, the Veteran was provided a VA genitourinary examination in February 2021. After a review of the file, the February 2021 VA examiner stated that the Veteran's urinary symptoms meet the criteria for a diagnosis of LUTS. Further, the Board granted the Veteran's claim to establish service connection for prostate cancer in March 2020, and the AOJ implemented this allowance in an August 2020 rating decision. As such, elements (1) and (2) to establish service connection have been met. In view of above, the crux of the Veteran's appealed issue is whether the most probative evidence shows that the Veteran's LUTS is caused or aggravated by a service-connected disability. The Board's March 2020 remand directives posed these critical medical questions, and after a review of the file and examination of the Veteran, the February 2021 VA examiner attempted to adequately respond. In sum, the February 2021 VA examiner noted that LUTS pre-existed the Veteran's prostate cancer diagnosis, and opined that the former such was less likely as not caused or aggravated by the latter; however, the examiner clarified that the Veteran's prostate cancer and associated treatment at least as likely as not "contributed to the Veteran's urinary symptoms," including LUTS. The Board observes that the February 2021 VA examiner's opinions appear to be internally inconsistent; however, it is clear that the opinions support a substantial interplay between the Veteran's LUTS and his service-connected prostate cancer and treatment for such. To this point, the examiner's opinions stand for the premise that LUTS increased in severity and frequency during, and due to, the Veteran's prostate cancer treatments. The Board finds both opinions to be probative of this matter, and thus, the medical nexus evidence is approximately in equipoise concerning whether the Veteran's urinary disability, diagnosed as LUTS, are aggravated by a service-connected disability. Lynch v. McDonough, 999 F.3d 1391, 1394 (Fed. Cir. 2021). In such cases, the law provides that all reasonable doubt must be conferred in the Veteran's favor, and after doing so, element (3) under the theory of secondary service connection is met. Gilbert v. Derwinski, 1 Vet. App. 49 (1991). As such, service connection for a urinary disability, diagnosed as LUTS, is warranted. 2. Entitlement to service connection for a disability manifested by sleep disturbance, to include as secondary to a service-connected disability In filings throughout the pendency of the appeal and at the March 2020 Board hearing, the Veteran asserted that he experiences frequent periods of sleep disturbance which he believes to be manifestations of a disability that was either incurred during active duty, to include exposure to chemicals, or caused or aggravated by a service-connected disability. As such, the Board's analysis of this issue will include the theories of direct and secondary service connection. The record reflects a diagnosis of obstructive sleep apnea during the appeal period, and the February 2021 VA examiner stated that the service-connected residuals of prostate cancer are manifested by nocturia, resulting in multiple instances of urination each night. While obstructive sleep apnea a disability for which service connection may be established via the present appeal, the VA examiner's opinion clearly shows that nocturia is a symptom of a disability for which service connection has already been established. As such, element (1) to establish direct and secondary service connection has been met with regard to obstructive sleep apnea; however, nocturia is not a separate disability for which service connection may be established, as this symptom is already contemplated in evaluating the Veteran's service-connected residuals of prostate cancer. Concerning element (2) to establish direct service connection, the record does not reflect, and the Veteran does not contend, that he experienced obstructive sleep apnea was diagnosed during active duty or that he experienced symptoms congruent with this disability during the same. However, as outlined in the Board's March 2020 remand, the evidence amply reflects that the Veteran's in-service duties as a scientific laboratory specialist while stationed at Fort McClellan exposed him to known carcinogens, to include benzene, hexene, hexane, mercury, cadmium, trichloroethylene (TCE), among others. To that extent, the Board concludes that element (2) to establish direct service connection has been demonstrated. As stated above, service connection has been established for residuals of prostate cancer, and thus, element (2) under the theory of secondary service connection has been established. In view of above, the crux of the Veteran's appealed issue is whether the most probative evidence reflects that obstructive sleep apnea was at least as likely as not (proximately due to any incident of active duty, to include exposure to toxic chemicals, (2) caused by a service-connected disability, or (3) aggravated by a service-connected disability. The above matters were posed to a VA examiner consequent to the Board's March 2020 remand. After examining the Veteran and reviewing his complete VA file, the February 2021 VA examiner opined that the Veteran's obstructive sleep apnea is less likely as not due to any incident of active duty or caused or aggravated by a service-connected disability. As rationale for these opinions, the February 2021 VA examiner stated that medical literature and principles do not support that the obstructive sleep apnea is a known or possible consequence of exposure to the chemicals encountered by the Veteran during active duty. The examiner further provided that, while the examiner conceded that the Veteran's newly service-connected LUTS can be associated with nocturia and disrupted sleep, there was no correlation or association between obstructive sleep apnea and LUTS, which the Board finds to be an inadequate rationale. More specifically, if the examiner concedes that service-connected disability can cause disrupted sleep, how is it then possible that such disruption could not have at least aggravated the Veteran's sleep apnea, especially where the LUTS has even been found to have preexisted the diagnosis of prostate cancer in 2012, and sleep apnea was not diagnosed until 2016. Although the Board has considered once again remanding this matter for a clarifying opinion, it instead finds that had the examiner fully appreciated the chronology of the pertinent diagnoses, the examiner would have supported the proposition that disrupted sleep arising out of LUTS more likely than not at least aggravated the Veteran's sleep apnea. The Veteran has also credibly testified to the disrupted sleep from his LUTS and the examiner fully acknowledged and accepted the veracity of the Veteran's statements in this regard. In view of above, the Board will give the Veteran the benefit of the doubt, and find that the Veteran's sleep apnea was at least aggravated by his service-connected residuals of prostate cancer and LUTS, based on the chronology of the pertinent diagnoses in this matter, a reasonable interpretation of the February 2021 opinion had the examiner been aware of a more accurate history of these conditions, and the Veteran's credible and consistent statement in this regard. As such, the nexus element to establish secondary service connection for sleep apnea has been met. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.