Citation Nr: 22012804 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 14-16 247 DATE: March 7, 2022 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure is denied. Entitlement to service connection for diabetes mellitus type 2, to include as secondary to herbicide exposure is denied. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's hypertension is related to and had its onset in service. 2. The Veteran did not serve in the Republic of Vietnam, or in the Korean Demilitarized Zone (DMZ) during the Vietnam era, and exposure to herbicide agents is not otherwise shown. 3. The Veteran's prostate cancer did not have its onset in service, was not shown within one year after separation from service and is not otherwise related to service. 4. The Veteran's diabetes mellitus did not have its onset in service, was not shown within one year after separation from service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for prostate cancer, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for diabetes mellitus type 2 have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1970 to December 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2011 and September 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in January 2018 when they were remanded for additional development. Service Connection 1. Entitlement to service connection for hypertension. The Veteran reports that he is entitled to service connection for hypertension, to include as secondary to his diabetes mellitus and/or herbicide exposure. For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm. or greater, or systolic blood pressure is predominantly 160mm. or more with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, note 1. The Veteran's service treatment records show elevated blood pressure readings during service. See, e.g., July 1980 report (showing blood pressure reading of 140/90); November 1988 report (showing blood pressure reading of 140/100). In addition, on November 1990 retirement report of medical examination, a blood pressure reading of 138/84 was found, and a diagnosis of hypertension was provided. The Veteran has a current diagnosis of hypertension. See, e.g., January 2006 VA Agent Orange registry examination (diagnosing hypertension with an onset date of 1992). Thus, the first element of service connection is met. As noted above, the evidence shows that the Veteran had elevated blood pressure readings during service, as well as a diagnosis of hypertension on retirement examination, and post-service treatment records reflecting a current diagnosis of hypertension. Hence, the Board finds that service connection for hypertension is warranted based on onset in service. 38 C.F.R. § 3.303. Inasmuch as this opinion awards service connection for hypertension on a direct basis, there is no need to address the additional theories of entitlement. 2. Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure. 3. Entitlement to service connection for diabetes mellitus type 2, to include as secondary to herbicide exposure. The Veteran reports that he is entitled to service connection for prostate cancer and diabetes mellitus type 2, to include as secondary to herbicide exposure in Korea and/or at Fort Bragg. See June 2013 correspondence. The Veteran's service personnel records indicate that he served in Korea from January 1975 to February 1976, and from January 1981 to January 1982. A Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides (e.g., Agent Orange) are known to have been applied during that period, shall be presumed to have been exposed during such service to a herbicide agent (e.g., Agent Orange), unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Inasmuch as the Veteran's service in Korea was after August 31, 1971, his claimed herbicide exposure in Korea is not conceded. In addition, in February 2020 correspondence, Defense Personnel Records Information System (DPRIS) stated that record do not document the use, storage, spraying or transporting of tactical herbicides, to include Agent Orange, in Korea during the Veteran's service in Korea. The Veteran also contends that his prostate cancer and diabetes are secondary to herbicide exposure at Fort Bragg. In July 2019, the Compensation Service stated that herbicide exposure at Fort Bragg was not conceded. The Department of Defense has not identified any location on Fort Bragg where Agent Orange was used, tested, stored or transported. In addition, Fort Bragg was not on the Agent Orange shipping supply line. Hence, any herbicide use the claimant observed, or was associated with, was the commercial variety. Based on the above, the Board finds that the evidence is persuasively against a finding that the Veteran's diagnosed prostate cancer and diabetes mellitus are due to herbicide exposure during service. Even though presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). While the Veteran believes that his prostate cancer and diabetes mellitus are related to his active military service, and specifically his claimed exposure to herbicides, he is not competent to provide the medical etiology in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There is no competent scientific or medical evidence of record to support the Veteran's contention that his diabetes and prostate cancer resulted from herbicide exposure during active service or are otherwise related to his active military service. The Veteran does not contend, and the record does not show, that his diabetes or his prostate cancer manifested during service or within a year of separation. Medical records do not show an initial diagnosis for prostate cancer or diabetes for many years following service. The only medical opinion addressing the etiology of the Veteran's diabetes is an August 2019 VA examination which opined that the Veteran's diabetes was less likely than not incurred in or caused by his claimed in-service event, noting the evidence was negative for exposure to Agent Orange during his service in Korea. This opinion was based on a review of the claims and by a medical professional competent to provide an opinion on the etiology of the Veteran's diabetes mellitus. Hence, the Board finds this opinion to be persuasive. Thus, service connection for diabetes or prostate cancer is not available on a direct basis. The Board acknowledges that a VA examination has not been afforded to the Veteran in this case regarding his prostate cancer. However, the Board finds that such an examination is not warranted in this case as the threshold under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), for obtaining an examination has not been met in this case, as the evidence does not establish a relevant in-service injury or event. As the evidence is persuasively against the Veteran's claim, entitlement to service connection for prostate cancer and diabetes mellitus must be denied. REASONS FOR REMAND 4. Entitlement to service connection for a left shoulder disability is remanded. The Veteran seeks service connection for a left shoulder disability, claimed as secondary to his parachute jumps during service. See, e.g., February 2011 correspondence. The Veteran's personnel records reflect that his decorations and awards include a parachute badge. The Veteran underwent a VA examination in August 2019. The examiner noted that the evidence showed the Veteran underwent repair of a rotator cuff tear in February 2014 caused by a motor vehicle accident sustained in 2002. It was therefore opined that the Veteran's left shoulder disability was not incurred or caused during military service. After a review of the August 2019 examination, the Board finds that the opinion was inadequate. In support of his theory, the Board notes that the Veteran's service treatment records reflect his complaint of a sore right shoulder after injuring his shoulder on a parachute jump in September 1980. While such record does not reflect treatment for the Veteran's claimed left shoulder disability, it supports his theory that parachute jumps can lead to injury of the shoulder. In addition, the Veteran has submitted a September 2014 Dr. R.B. private medical opinion noting the Veteran's history of paratrooper jumps, referenced a June 2008 Dr. M.D. letter, and opined it was at least as likely as not that this activity lead and contributed to the degenerative joint disease of the patient. Review of the referenced June 2008 Dr. M.D. letter reveals reference only to right hip degenerative joint disease. However, the June 2008 Dr. M.D. letter did indicate, without supporting rationale, that the Veteran's parachute jumps, which involved repeated stress on the shoulders, could have contributed to his left shoulder disability. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Under the circumstances, this matter must be remanded for another examination and opinion to address the nature and etiology of the Veteran's left shoulder disability. 5. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea. The record reflects diagnoses of obstructive sleep apnea. See September 2010 Southeast Sleep Disorders Center of Brunswick polysomnography report. The Veteran has not been afforded a VA examination to determine the nature and etiology of his diagnosed sleep apnea, and the Board finds that the existing record triggers VA's duty to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to TDIU is remanded. Additionally, because the Veteran's TDIU claim is inextricably intertwined with the claims remaining on appeal, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Outstanding treatment records should also be secured. In addition, the Board notes that in his March 2015 and May 2019 VA Form 21-8940s, the Veteran indicated that he has only worked part-time since 1998, working as a greeter at Walmart and providing transportation for juveniles for the county or state. Such evidence suggests marginal employment. However, the Board finds that more information is needed regarding whether the Veteran is unable to secure or follow a substantially gainful occupation due at least in part due to his service-connected disabilities. Accordingly, the Veteran should be afforded the opportunity to provide the necessary information regarding his employment during the appeal period, and any other pertinent information. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Request that the Veteran complete an updated VA Form 21-8940. Obtain clarification from the Veteran regarding his work history since 1998, to include a statement as to his current employment status, noting his May 2019 VA Form 21-8940 did not provide any dates of employment as a greeter at Walmart. He should be asked to submit evidence (e.g., pay stubs, W2 form, tax returns, letters from employers, etc.) documenting marginal employment, if any, due to his service-connected disabilities. All actions to obtain the requested information should be documented. 3. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature, onset and etiology of any current left shoulder disability. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any left shoulder disability found. If no such disability is diagnosed, the examiner should indicate whether the Veteran's left shoulder pain causes any functional impairment. (b) For any left shoulder disability/functional impairment diagnosed, please opine as to whether it is at least as likely as not that such disability/functional impairment had its onset or is otherwise related to the Veteran's active service, to include parachute jumps. The examiner should presume the occurrence of the parachute jumps. A complete rationale should be given for all opinions and conclusions expressed. 4. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature, onset and etiology of the Veteran's sleep apnea. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any sleep apnea disorder found. If no such disorder is diagnosed, the examiner should reconcile such with post-service treatment records diagnosing such disorder. (b) For any sleep apnea disorder diagnosed, please opine as to whether it is at least as likely as not that such disorder had its onset or is otherwise related to the Veteran's active service. (c) Whether it is at least as likely as not that any sleep disorder diagnosed is related to, or proximately due to, any of the Veteran's service-connected disabilities, to specifically include his posttraumatic stress disorder (PTSD). (d) Whether it is at least as likely as not that any sleep disorder diagnosed was aggravated by any of the Veteran's service-connected disabilities, to specifically include his PTSD. A complete rationale should be given for all opinions and conclusions expressed. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.