Citation Nr: 21014191 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-22 938 DATE: March 11, 2021 REMANDED Entitlement to service connection for a bladder condition with loss of control is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a left hand tremor is remanded. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to November 1976. This matter is on appeal from a July 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, a hearing was held before the undersigned. A transcript of the hearing is in the record. At the hearing, the Veteran was granted a 60-day abeyance period for the submission of additional evidence to support his claims. An extension of that time period was granted by the Board in an April 2020 letter. The Veteran submitted additional evidence in May 2020. The undersigned notes that a December 2020 letter from the Board informed the Veteran that the Board was unable to produce a complete copy of the February 2020 hearing transcript due to audio malfunctions. This letter was sent in error as a complete transcript was prepared from the hearing and has been associated with the claims file. A copy of the transcript was also provided to the Veteran, per his request, and he acknowledged such receipt in a December 2020 response to the Board’s letter. The undersigned apologizes for any confusion caused by the Board’s December 2020 letter. 1. Entitlement to service connection for a bladder condition with loss of control is remanded. 2. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends that he is entitled to service connection for a bladder condition with loss of control and erectile dysfunction, to include as due to an in-service injury. The Veteran has not been provided with a VA examination for these conditions. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79. The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. In this case, October 1968 service treatment records note that the Veteran presented with a gunshot wound to the abdomen while serving in Vietnam. The clinician noted a same day exploratory laparotomy with small bowel resections times two and ligation of mesenteric bleeders. The clinician noted a diagnosis of gunshot wound of the abdomen with perforating small bowel and fecal and urinary incontinence. February 1969 service treatment records note a diagnosis of stricture of the urethra and urinary tract infection secondary to the gunshot wound and perforation. During the February 2020 hearing, the Veteran provided lay testimony stating that he underwent catheterization during this incident and experienced difficulty with the instrument which caused pain. The Veteran further stated that he visited a urologist who stated that he had scar tissue and that he currently experiences difficulty using the restroom. As this evidence indicates the presence of a disability or signs and symptoms of disability which may be associated with service, a VA examination must be scheduled to determine the nature and etiology of the Veteran’s condition. 3. Entitlement to service connection for a left hand tremor is remanded. The Veteran contends that he is entitled to service connection for a left hand tremor. The Veteran has not been provided with a VA examination for this condition. The record reflects that November 1972 service treatment records note a hand injury, and January 1978 service treatment records note residuals of an injury of the left middle finger. Further, during the hearing, the Veteran stated that when he got out of service in 1976, he was having hand problems, including having difficulty holding on to things. As this evidence indicates the presence of a disability or signs and symptoms of disability which may be associated with service, a VA examination must be scheduled to determine the etiology of the Veteran’s condition. Further, the Veteran raised the possibility of his left hand condition being related to exposure to herbicide agents. Military personnel records and the Veteran’s DD 214 reflect that the Veteran served in the Republic of Vietnam. The Veteran is therefore presumed to have been exposed to herbicide agents while in service. 38 C.F.R. § 3.307(a)(6). However, the Veteran’s left hand tremors are not presumed to have been caused by such exposure, as the condition is not listed as an enumerated disease under 38 C.F.R. § 3.309. The Veteran must therefore establish service connection directly by showing a nexus between the disability and his presumed exposure to herbicide agents. See, e.g., Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Thus, the examiner should provide an opinion which addresses this theory of entitlement. 4. Entitlement to service connection for COPD is remanded. 5. Entitlement to service connection for OSA is remanded. The Veteran contends that he is entitled to service connection for COPD and OSA. The Veteran has not been provided with a VA examination for these disabilities. During the February 2020 hearing, the Veteran stated that a doctor told him that these conditions were related to his exposure to herbicide agents or to his exposure to fumes from burn pits in Vietnam. The record does not contain a positive nexus opinion from a doctor, but the Veteran is competent to relate what a medical professional has told him. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, as explained above, the Veteran is presumed to have been exposed to herbicide agents while in service. However, these conditions are not presumed to have been caused by such exposure, as they are not listed as enumerated diseases under 38 C.F.R. § 3.309. Additionally, the Veteran is competent to testify regarding the circumstances of his service, including that there were burn pits used in Vietnam. As these lay statements indicate the presence of a disability or signs and symptoms of disability which may be associated with service, a VA examination must be scheduled to determine the etiology of the Veteran’s conditions. In a November 2019 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, the Veteran stated that “PTSD causes sleep apnea.” The Veteran is currently service connected for an acquired psychiatric disorder. Service connection may be established on a secondary basis for a disability caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish service connection for a secondary disability, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. Any increase in severity of a nonservice-connected condition that is caused by a service-connected condition (as opposed to natural progression) will also be service connected. See 38 C.F.R. § 3.310(b). Thus, the examiner should also provide an opinion which addresses the Veteran’s theory of entitlement to secondary service connection for the sleep apnea claim. Additionally, regarding all of the Veteran’s claims, the Veteran was granted a 60-day abeyance to submit additional evidence, to include private treatment records. In April 2020, VA received a correspondence from the Veteran which stated that he had been having difficulty obtaining these records. Although he subsequently submitted records in May 2020, it is unclear if he submitted all of the records he had been intending to submit. Therefore, on remand, the Veteran will be provided an opportunity to provide authorization to VA to obtain any additional outstanding records. 38 U.S.C. § 5103A(b)(1). The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2014 to the present. 2. Provide the Veteran with a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), to obtain any outstanding private medical records pertinent to the claims on appeal. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. After obtaining any additional records, schedule the Veteran for an examination (or examinations) by an appropriate clinician(s) to determine the etiology of the disabilities on appeal. Based on the factual evidence of record, the examiner(s) is asked to provide opinions that answer the following: (a.) (1) Provide a diagnosis for the Veteran’s bladder-related condition(s), if possible. (2) For any diagnosed bladder-related condition, is it at least as likely as not (a 50 percent or greater probability) that the condition was incurred in service or is otherwise related to an in-service injury, event, or disease, to include the in-service stricture of the urethra and urinary tract infection secondary to the gunshot wound and perforation? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction was incurred in service or is otherwise related to an in-service injury, event, or disease, to include the in-service stricture of the urethra and urinary tract infection secondary to the gunshot wound and perforation? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s left hand tremor was incurred in service or is otherwise related to an in-service injury, event, or disease, to include presumed exposure to herbicide agents? (d.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s COPD was incurred in service or is otherwise related to an in-service injury, event, or disease, to include presumed exposure to herbicide agents and exposure to fumes from burn pits in Vietnam? (e.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea was incurred in service or is otherwise related to an in-service injury, event, or disease, to include presumed exposure to herbicide agents and exposure to fumes from burn pits in Vietnam? (f.) If the answer to (e.) is no, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea is caused or aggravated (i.e., any worsening of the condition beyond its natural progression) by his service-connected acquired psychiatric disorder, diagnosed as latent type schizophrenia with psychogenic headaches? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.