Citation Nr: 21008250 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 18-27 488 DATE: February 12, 2021 ORDER Service connection for gallbladder removal is denied. Service connection for sleep apnea is denied. The issue of entitlement to a compensable rating for erectile dysfunction is dismissed. REMANDED Entitlement to a rating in excess of 30 percent for unspecified depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU rating) is remanded.   FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s post-service gallbladder removal was related to his service (including his exposure to herbicide agents therein) or was caused or aggravated by a service-connected disability (including prostate cancer and his treatment for such disability). 2. Sleep apnea was not manifested in service, and the weight of the evidence is against a finding that the Veteran’s current sleep apnea began in service, is related to his service, or was caused or is aggravated by a service-connected disability (including prostate cancer and unspecified depressive disorder). 3. On the record at his June 2020 Board hearing, prior to the promulgation of a decision in the appeal in the matter, the Veteran testified that he wished to withdraw his appeal as to the issue of entitlement to a compensable rating for erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for gallbladder removal are not met. 38 U.S.C. §§ 1110, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 2. The criteria for entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 3. The criteria for withdrawal of the appeal of the issue of entitlement to a compensable rating for erectile dysfunction are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1962 to October 1966. His service records confirm that he served in the Republic of Vietnam during his active duty service. In September 2018, an informal conference was held before a Decision Review Officer (DRO) at the Agency of Original Jurisdiction (AOJ) for the issues of entitlement to service connection for gallbladder removal and entitlement to a compensable rating for erectile dysfunction. In June 2020, a hearing was held before the undersigned Veterans Law Judge for all four issues currently before the Board, and a transcript of the hearing is associated with the record. From the date of the hearing, the record was held open for 90 days in order to allow for the submission of additional evidence for consideration; however, no additional evidence was submitted by the Veteran or his attorney within that time. Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for gallbladder removal. The Veteran contends that his post-service gallbladder removal was related to his service (including his exposure to herbicide agents therein). He also contends that his post-service gallbladder removal was caused or aggravated by his service-connected prostate cancer (including his treatment for such disability). In the case of a Veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 and who is presumed to have been exposed during such service to herbicide agents, certain listed diseases (which are enumerated in 38 C.F.R. § 3.309(e)) shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. The Veteran’s service treatment records (STRs) do not note any reports, findings, diagnoses, or treatment pertaining to his gallbladder. Post-service, an April 2017 VA treatment record documented the Veteran’s report that he had gallbladder removal surgery two weeks prior. A June 2017 VA treatment record noted that he underwent a cholecystectomy (i.e., surgical removal of the gallbladder) in April 2017 when a problem with his gallbladder was found after he had right upper quadrant (RUQ) pain during a colonoscopy. It was noted in this June 2017 VA treatment record that the Veteran had wondered if his previous treatment for prostate cancer with radiation caused his current problem, and the VA examining provider stated: “Search on Up-to-Date did not mention common a/e [adverse events] on gallbladder post radiation for prostate cancer.” The Board notes that, after the AOJ issued a supplemental statement of the case (SSOC) addressing the issue of service connection for gallbladder removal in September 2018, VA-generated evidence was added to the claims file. However, because this evidence is not pertinent to this issue, no waiver of initial AOJ review of such evidence is necessary. See 38 C.F.R. § 20.1305. At his June 2020 Board hearing, the Veteran indicated that he was going to try to obtain a medical opinion addressing his gallbladder claim. Thereafter, however, the Veteran’s attorney noted in an October 2020 brief that the Veteran was unable to obtain a medical nexus opinion to support his claim for service connection for gallbladder removal. Although the Veteran served in Vietnam and thus is presumed to have been exposed to herbicide agents, there is no evidence of record to show that the Veteran’s post-service gallbladder removal involved any of the diseases enumerated in 38 C.F.R. § 3.309(e) which are associated with exposure to herbicide agents. Consequently, the presumptive provisions of 38 U.S.C. § 1116 cannot be applied. See 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicide agents is not precluded from establishing service connection for such disability on a direct basis (including as due to herbicide exposure) or on a secondary basis to a service-connected disability. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). While the evidence shows that the Veteran did undergo gallbladder removal surgery in April 2017, the Board reiterates that his STRs are silent for any reports, findings, diagnoses, or treatment pertaining to his gallbladder. Furthermore, there is no competent evidence in the record to suggest that his gallbladder removal was (or may have been, so as to trigger the duty to obtain a medical opinion with supportive rationale in this matter) related to his service, including his presumed herbicide agent exposure therein. Absent any competent evidence suggesting a link between his gallbladder removal and his service, the Board finds that a medical nexus opinion for this question is not warranted, because even the low threshold standard (for determining when an opinion is necessary), endorsed in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4). In addition, while the Veteran is service-connected for prostate cancer, there is no competent evidence in the record to suggest that his gallbladder removal was (or may have been, so as to trigger the duty to obtain a medical opinion with supportive rationale in this matter) caused or aggravated by his prostate cancer, including his treatment for such disability. As outlined above, a VA provider noted that a search on Up-to-Date did not mention common adverse events on the gallbladder after radiation treatment for prostate cancer. Absent any competent evidence suggesting a link between the Veteran’s gallbladder removal and his service-connected prostate cancer, the Board finds that a medical nexus opinion for this question is not warranted, because even the low threshold standard (for determining when an opinion is necessary), endorsed in McLendon, 20 Vet. App. at 27, is not met. See 38 C.F.R. § 3.159(c)(4). Furthermore, the Veteran has not alleged (or submitted evidence showing) that his gallbladder removal was caused or aggravated by his other currently service-connected disabilities (i.e., unspecified depressive disorder and erectile dysfunction). While the Veteran is competent to describe lay discernible symptoms without any specialized knowledge or training (see Barr v. Nicholson, 21 Vet. App. 303, 309 (2007)), his own opinions regarding etiology of such symptoms are not competent evidence. He is a layperson and does not cite to any supporting medical opinion or clinical or medical treatise evidence which pertains to his own specific disability picture. Furthermore, the question of etiology of his gallbladder removal is a medical question beyond the scope of lay observation. See Jandreau, 492 F.3d at 1372. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s post-service gallbladder removal was related to his service (including his exposure to herbicide agents therein) or was caused or aggravated by a service-connected disability (including prostate cancer and his treatment for such disability). There is no doubt to be resolved. Accordingly, the Board finds that service connection for gallbladder removal is not warranted on any basis, and the appeal in this matter must be denied. 2. Entitlement to service connection for sleep apnea. The Veteran contends that his current sleep apnea is related to his service. He also contends that his current sleep apnea was caused or is aggravated by his service-connected prostate cancer and/or his service-connected unspecified depressive disorder. The Veteran’s STRs do not note any reports, findings, diagnosis, or treatment of sleep apnea. Post-service, a July 2011 VA treatment record noted the Veteran’s wife telling him that he “snores and grasps for air” and that she reported him having periods of apnea. A July 2012 VA sleep study revealed the Veteran had severe obstructive sleep apnea, and subsequent VA treatment records have documented his treatment for such disability with a CPAP machine. His VA treatment records also document that he was diagnosed with prostate cancer in March 2015. At a March 2018 VA sleep apnea examination, it was noted that the Veteran had been diagnosed with obstructive sleep apnea in 2012. The VA examiner opined that the Veteran’s current obstructive sleep apnea was less likely than not proximately due to or the result of his service-connected psychiatric disability, with the following rationale: “Sleep apnea occurs due to anatomical factors of the upper airway which interfere with air flow during sleep and is not caused by any psychological disorder including PTSD [posttraumatic stress disorder]. Changes in the structure of the airway result in obstructed breathing when the muscles surrounding these structures relax during sleep. Upper airway crowding worsens this condition. The Veteran’s severe obesity, indicated by a BMI [of] 39.81[,] is his greatest risk factor for OSA [obstructive sleep apnea]. For these reasons, there is no pathology to support PTSD [or] a mental health condition as an etiology of Obstructive sleep apnea.” The VA examiner went on to discuss the baseline level of severity and the current level of severity of the Veteran’s obstructive sleep apnea as the rationale for the following opinion: “There is no evidence of permanent aggravation beyond natural progression due to [service-connected] PTSD.” [While the Board notes that “permanent” aggravation is not necessary to meet the criteria for secondary service connection, the Board nevertheless finds that the March 2018 VA examiner’s opinion adequately addressed the question of aggravation pursuant to 38 C.F.R. § 3.310 in this case by taking into account the baseline level of severity and the current level of severity of the Veteran’s sleep apnea as the rationale for finding that his sleep apnea was not aggravated beyond natural progression by his service-connected psychiatric disability.] The Board notes that, after the AOJ issued a statement of the case (SOC) addressing the issue of service connection for sleep apnea in February 2019, VA-generated evidence was added to the claims file. However, because this evidence is not pertinent to this issue, no waiver of initial AOJ review of such evidence is necessary. See 38 C.F.R. § 20.1305. At his June 2020 Board hearing, the Veteran testified that he had difficulty sleeping due to nocturia from his service-connected prostate cancer as well as nightmares from his service-connected unspecified depressive disorder. He also testified that he had been using the CPAP machine for his sleep apnea before his prostate issues began. He also indicated that he was going to try to obtain a medical opinion addressing his sleep apnea claim and a relationship to his service-connected depressive disorder. Thereafter, however, the Veteran’s attorney noted in an October 2020 brief that the Veteran was unable to obtain a medical nexus opinion to support his claim for service connection for sleep apnea. While the evidence shows that the Veteran does have a current diagnosis of sleep apnea, the Board reiterates that his STRs are silent for any reports, findings, diagnosis, or treatment of sleep apnea. Furthermore, there is no competent evidence in the record to suggest that his current sleep apnea is (or may be, so as to trigger the duty to obtain a medical opinion with supportive rationale in this matter) related to his service. Absent any competent evidence suggesting a link between his current sleep apnea and his service, the Board finds that a medical nexus opinion for this question is not warranted, because even the low threshold standard (for determining when an opinion is necessary), endorsed in McLendon, 20 Vet. App. at 27, is not met. See 38 C.F.R. § 3.159(c)(4). In addition, while the Veteran is service-connected for prostate cancer, there is no competent evidence in the record to suggest that his current sleep apnea is (or may be, so as to trigger the duty to obtain a medical opinion with supportive rationale in this matter) caused or aggravated by his prostate cancer. As outlined above, the Veteran was diagnosed with sleep apnea in 2012 and with prostate cancer in 2015. While the Veteran has indicated that he has had difficulty sleeping due to nocturia from his service-connected prostate cancer, he has not alleged that his nocturia either caused his sleep apnea or manifested in aggravation (i.e., any increase in severity beyond the natural progression) of his sleep apnea. Absent any competent evidence suggesting a link between his current sleep apnea and his service-connected prostate cancer, the Board finds that a medical nexus opinion for this question is not warranted, because even the low threshold standard (for determining when an opinion is necessary), endorsed in McLendon, 20 Vet. App. at 27, is not met. See 38 C.F.R. § 3.159(c)(4). Furthermore, while the Veteran is service-connected for unspecified depressive disorder, the only competent evidence in the record that addresses the question of whether his current sleep apnea is caused or aggravated by his unspecified depressive disorder – namely, the opinion provided by the VA sleep apnea examiner in March 2018, as outlined above – is against the Veteran’s claim. This opinion is by a medical professional, reflects familiarity with the entire record, and is accompanied by a thorough and adequate rationale referring to accurate factual data for support. Therefore, it is the most probative evidence in this matter. Finally, the Veteran has not alleged (or submitted evidence showing) that his current sleep apnea was caused or is aggravated by his other currently service-connected disability (i.e., erectile dysfunction). While the Veteran is competent to describe lay discernible symptoms without any specialized knowledge or training (see Barr, 21 Vet. App. at 303, 309), his own opinions regarding etiology of such symptoms are not competent evidence. He is a layperson and does not cite to any supporting medical opinion or clinical or medical treatise evidence which pertains to his own specific disability picture. Furthermore, the question of etiology of his sleep apnea is a medical question beyond the scope of lay observation. See Jandreau, 492 F.3d at 1372. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current sleep apnea began in service, is related to his service, or was caused or is aggravated by a service-connected disability (including prostate cancer and unspecified depressive disorder). There is no doubt to be resolved. Accordingly, the Board finds that service connection for sleep apnea is not warranted on any basis, and the appeal in this matter must be denied. Withdrawn Claim 3. Entitlement to a compensable rating for erectile dysfunction. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 19.55. On the record at his June 2020 Board hearing, prior to the promulgation of a decision in the appeal in the matter, the Veteran testified that he wished to withdraw his appeal as to the issue of entitlement to a compensable rating for erectile dysfunction. The transcript demonstrates that the Veteran was advised of the consequences of withdrawing the appeal of this issue, that the Veteran and his attorney participated in a meaningful manner in the hearing, and that they were aware of the consequences of withdrawal of the claim at the time. The Board finds that the Veteran’s withdrawal with regard to the aforementioned issue was explicit, unambiguous, and done with a full understanding of the consequences of such action. Given these circumstances, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal of the issue of entitlement to a compensable rating for erectile dysfunction. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As the Veteran has knowingly and voluntarily withdrawn the appeal of this issue in accordance with 38 C.F.R. § 19.55, there remains no allegation of error of fact or law for the Board to address. Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and the appeal in this matter must be dismissed. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for unspecified depressive disorder. The Veteran filed the instant claim for an increased rating for his service-connected psychiatric disability in March 2018. The May 2018 rating decision on appeal recharacterized the Veteran’s service-connected psychiatric disability (previously characterized as PTSD) to unspecified depressive disorder and denied a rating in excess of the 30 percent rating already assigned for that disability. In his September 2018 notice of disagreement (NOD), the Veteran disagreed with the denial of a rating in excess of 30 percent for this disability. [The Veteran also indicated on his September 2018 NOD that he wished to appeal an “effective date” issue regarding this disability; however, the May 2018 rating decision did not assign any new effective dates for this disability. Consequently, the Board finds that there is no freestanding effective date issue currently on appeal with regard to the Veteran’s unspecified depressive disorder. Furthermore, the Board’s adjudication of the increased rating issue for such disability will simultaneously address any effective date concerns for all ratings which may be assigned within the current evaluation period.] The record reflects that the Veteran most recently underwent a VA psychiatric examination in April 2018. Thereafter, at his June 2020 Board hearing, he indicated that his psychiatric symptoms were worse than what he had described at his April 2018 VA examination. On remand, after any outstanding treatment records have been associated with the claims file, a new examination should be scheduled to ascertain the current level of severity for the Veteran’s unspecified depressive disorder, as there is an indication that the condition may have worsened since his last VA examination. 2. Entitlement to a TDIU rating. In an October 2020 brief, the Veteran’s attorney alleged that the Veteran was seeking a TDIU rating in the context of his increased rating claim for unspecified depressive disorder on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the Veteran should be notified of the requirements to establish a claim for a TDIU rating, and he should be asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability. Thereafter, after all outstanding treatment records have been associated with the claims file and after all necessary and requested development has been completed, the claim for a TDIU rating should be adjudicated after the readjudication of the other issue remaining on appeal.   The matters are REMANDED for the following actions: 1. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to a TDIU rating. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate a claim for a TDIU rating, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. The Veteran should also be asked to complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability. 2. Ask the Veteran to complete a VA Form 21-4142 for any private providers who have treated him for his unspecified depressive disorder on appeal at any time during the appeal period. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records for the period from January 2021 to the present. 4. After all requested records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician (or a telehealth interview if an in-person examination is not feasible) to determine the current severity of his service-connected unspecified depressive disorder. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. All pertinent symptomatology and findings must be reported in detail. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. 5. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claim on appeal for entitlement to a higher rating for unspecified depressive disorder – followed by adjudication of the issue of entitlement to a TDIU rating (in light of the outcome of the other claim on appeal, and with consideration of whether referral of an extraschedular TDIU rating under § 4.16(b) is warranted for any period that the schedular TDIU criteria under § 4.16(a) are not met). If any benefit sought on appeal remains denied, in whole or in part, an SSOC must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, Counsel The Board’s decision in this case is binding only with respect to the instant matters decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.