Citation Nr: A25041246 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 211102-194718 DATE: May 6, 2025 ORDER Entitlement to service connection for voiding dysfunction is denied. REMANDED Entitlement to service connection for acquired psychiatric disorder including anxiety disorder and major depressive disorder is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The probative evidence of record is against finding a causal connection between the in-service event and the Veteran's voiding dysfunction. 2. The Veteran is not service connected for prostate cancer or prostatectomy. CONCLUSION OF LAW The criteria for entitlement to service connection for voiding dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1985 to October 1991. The rating decision on appeal was issued in September 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the November 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the September 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran [or representative] with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim of service connection for voiding dysfunction, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of entitlement to service connection for acquired psychiatric disorder and obstructive sleep apnea, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). In December 2024, the Board received a VA Form 21-22, appointing attorney C.C. as the Veteran's representative. However, for appeals in the AMA system, a Veteran has 90 days from the date of the Board's receipt of the VA Form 10182 to request a change in representation. See 38 C.F.R. § 20.1304. Here, the VA Form 10182 was received in November 2021, but the VA Form 21-22 was received in December 2024, which is well past the 90-day mark, requiring good cause for the change in representation. As the Veteran has not provided good cause for the change in representation, the Board finds attorney Constance Berkely remains the Veteran's representative for purposes of this appeal. The Board notes that the Veteran raised an earlier effective date claim regarding all the issues in this appeal. See November 2021 Notice of Disagreement. However, as the rating decision on appeal did not determine an effective date for any of the issues on appeal, entitlement to an earlier effective date is not on appeal before the Board at this time. Entitlement to service connection for voiding dysfunction The Veteran asserts that his voiding dysfunction is due to service. See August 2021 Fully Developed Claim. Specifically, the Veteran contends that his voiding dysfunction is due to chronic exposure to carcinogens at Camp Lejeune. Id. The Veteran also contends that his voiding dysfunction is secondary to a prostatectomy, which was caused by residuals of prostate cancer. Id.; November 2021 Notice of Disagreement. 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). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists; and (2) at least one service-connected disability; and (3) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b). Secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted). Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364. A lay person is competent to report on the onset and reoccurrence of 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).? The Board must determine, on a?case-by-case?basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the September 2021 rating decision on appeal, the AOJ favorably found that the Veteran has a current diagnosis of nocturia from the Long Beach VAMC on April 20, 2017. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Thus, the first element of service connection is met. In a May 2022 rating decision, the AOJ favorably determined the Veteran performed service at Camp Lejeune from January 1986 to March 1986 and was therefore presumed to have been exposed to contaminated water. See also June 2019 Military Personnel Record. Thus, the second element of direct service connection has been met. Therefore, the Veteran's claim for direct service connection turns on whether there is a nexus between his nocturia and his service. The Board finds the evidence is persuasively against such a finding. During a VA examination in August 2021, the examiner found that the Veteran has a voiding dysfunction, which was caused by the prostatectomy. The examiner's conclusion that the voiding dysfunction was caused by the prostatectomy is bolstered by the Veteran's separation examination, where the Veteran's genitourinary system was clinically evaluated as normal. Further, the Veteran's treatment records show that he did not exhibit symptoms of a voiding dysfunction until around the time he had his prostatectomy. As such, the Board gives more probative weight to the August 2021 VA examination, as the examination record is corroborated by the treatment records. The Board has also considered whether the AOJ should have obtained an opinion to address the Veteran's contention that contaminants he was exposed to at Camp Lejeune caused his voiding dysfunction. VA must provide an examination when there is (A) competent evidence of a current disability (or persistent or recurrent symptoms thereof) that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be competent evidence of a current disability, competent evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, that standard was not met as the Veteran's statement alleging a nexus is exactly the type of conclusory generalized lay statement that is insufficient to trigger VA's duty to obtain an opinion. As to secondary service connection, in the September 2021 rating decision, the AOJ made a favorable finding that the Veteran's nocturia is secondary to the primary nonservice-connected disability, prostate cancer. However, the Veteran's prostate cancer is not a service-connected disability. Thus, the Veteran's claim for secondary service connection must be denied. For the foregoing reasons, the evidence is persuasively against the Veteran's claim of entitlement to service connection for voiding dysfunction on both a direct and secondary basis. 38 C.F.R. § 3.2500, 3.400. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). Therefore, the Veteran's claim is denied. REASONS FOR REMAND Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2)?AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. ?See?38?C.F.R. §?20.802 (a).? Having reviewed the evidence of record, the Board finds that remand for a pre-decisional duty to assist error is required. 1. Entitlement to service connection for acquired psychiatric disorder including anxiety disorder and major depressive disorder is remanded. The Veteran asserts that his acquired psychiatric disorder including anxiety disorder and major depressive disorder is attributable to service. See August 2021 Fully Developed Claim. Specifically, the Veteran contends that his wife was sexually assaulted on Camp Lejeune in 1990 while he was on his way to work which caused his psychiatric disorders. See Id.; July 2021 Correspondence; October 2019 Statement in Support of Claim for Posttraumatic Stress Disorder (PTSD). The Veteran's wife blamed him for what happened, and so broke up with him. See October 2019 Statement in Support of Claim for PTSD. In the September 2021 rating decision on appeal, the AOJ favorably found that the Veteran was diagnosed with PTSD at Long Beach VAMC on May 6, 2016. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). The Board finds the AOJ erred in not developing the Veteran's alleged stressor. The Veteran replied to the AOJ's requests for information regarding the alleged incident. See August 2019, October 2019, July 2021 Subsequent Development Letter. The Veteran provided the approximates date of the alleged assault on his wife and the address of the house on Camp Lejeune. See October 2019 statement; July 2021 Correspondence. The date of the alleged assault align with his duty station at Camp Lejeune. See June 2019 Military Personnel Record. The Veteran's military personnel records show that the Veteran was married with two children around the time of 1989-1991. See June 2019 Military Personnel Record. The records also indicate that the Veteran and family were living on base in government housing. See Id. The address provided by the Veteran in the July 2021 Correspondence coincides with the address found in his military personnel records during the period of 1989 - 1991. Accordingly, the Board finds there was enough information for the AOJ to develop and verify the Veteran's alleged stressor. The failure to attempt to verify the alleged burglary and sexual assault of the Veteran's wife constitutes a pre-decisional duty to assist error, thus a remand is appropriate. 38 C.F.R. § 20.802 (a). 2. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran asserts that is obstructive sleep apnea was caused by stress, interrupted sleep, and physical training injuries from service. See August 2021 Fully Developed Claim. Specifically, the Veteran contends that sleeping disturbances and problems began when he was punished with extra duties while serving aboard the USS Durham. See August 2021 Correspondence. The Veteran would fall asleep sitting up and had difficulty getting to sleep due to the lights and noise from other soldiers. The Veteran would wake up often during the night. He started snoring and never stopped. He would wake up with a dry mouth, sore throat, and still felt tired. His symptoms continued through and after discharge from service. Additionally, the Veteran submitted a medical article entitled "Dry mouth upon awakening in obstructive sleep apnea," for the contention that his OSA started in service. See August 2021 Correspondence. The Veteran's representative also contends that sleeping in awkward positions in cramped quarters caused his OSA. See November 2021 Third Party Correspondence. The Veteran's representative also contends the Veteran's OSA is related to his service-connected back disability. See February 2022 correspondence. In the September 2021 rating decision on appeal, the AOJ favorably found that the Veteran was diagnosed with OSA at the Atlanta VAMC on May 4, 2021. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). The Board notes that the Veteran was never afforded a VA examination for his OSA. As noted above, the AOJ must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) Here, that standard has been met. The Veteran has a current diagnosis of OSA and has alleged in-service sleep issues which he contends began after being punished with extra duty aboard the USS Durham. The Veteran's service personnel records confirm he was administratively punished, to include with extra duties, in 1987 while serving abord the USS Durham. See Military Personnel Record received June 17, 2019. As there is an indication that the OSA may be associated with service, but there is insufficient evidence of record by which the Board can make a decision, the Board finds the AOJ erred in not providing the Veteran with a VA medical examination and opinion to determine the nature and etiology of his OSA. The matters are REMANDED for the following action: 1. Attempt to verify the alleged burglary and sexual assault of the Veteran's wife while at Camp Lejeune. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his obstructive sleep apnea. The evidentiary record, including a copy of this remand, must be reviewed by the clinician and such review should be noted in the examination report. The clinician is asked to respond to the following: (a) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) the Veteran's obstructive sleep apnea had its onset in or is related to service. The clinician should address the Veteran's statements in the August 2021 Correspondence; August 2021 Fully Developed Claim; and the medical article submitted in the August 2021 Correspondence entitled "Dry mouth upon awakening in obstructive sleep apnea." The clinician is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that such reports must be considered in formulating the requested opinion. If the clinician rejects the Veteran's reports, he or she must provide a rationale for doing so. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a specific measurement without resorting to mere speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). The clinician is also reminded that the absence of contemporaneous records showing complaints of, diagnosis, or treatment for the condition alone, is insufficient rationale for a nexus opinion. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Molitoris, Lee A. 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.