Citation Nr: 18160708
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-24 907A
DATE:	December 27, 2018
ORDER
Entitlement to service connection for prostate cancer is denied.
Entitlement to service connection for a is denied.
REMANDED
Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability, is remanded.
Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.
Entitlement to service connection for an anxiety disorder is remanded.
Entitlement to service connection for major depressive disorder is remanded.
Entitlement to service connection for alcohol abuse disorder is remanded.
FINDINGS OF FACT
1. The competent evidence shows that the Veteran did not serve within the land borders of Vietnam during the Vietnam Era, and exposure to herbicide agents is not shown. 
2. The competent medical evidence does not demonstrate that the Veteran’s prostate cancer was incurred in service or is otherwise attributable to his service, to include as due to exposure to herbicide agents. 
3. The competent medical evidence does not demonstrate that the Veteran has a separately diagnosable sleep disorder that is attributable to his active service or to any incident of service. 
CONCLUSIONS OF LAW
1. The criteria for service connection for prostate cancer have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 
2. The criteria for service connection for a sleep disorder have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303.  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1976 to September 1987.  The Board notes that the Veteran’s DD-214 form indicates beginning in January 1979, with 2 years, 6 months, 24 days prior active service.  Service personnel records available in the claims file reflect that he enlisted in the Army in July 1976, and had verified service from July 1976 to January 1979, following which he immediately reenlisted in the Army and served until September 1987.   
Service Connection
1. Entitlement to service connection for prostate cancer
The Veteran contends generally that his prostate cancer, which was diagnosed after service, is nevertheless attributable to service. 
As a preliminary issue, the Board notes that the Veteran has asserted that he served in Vietnam in 1976, which raises the possibility that he may have been exposed to herbicides pursuant to 38 U.S.C. § 1116(f) and by extension that his prostate cancer can be service-connected on a presumptive basis.  38 U.S.C. § 1116(a)(1).  However, the claims file contains no personnel records or any other evidence which corroborates that the Veteran may have visited the Republic of Vietnam as part of his service and therefore was presumptively exposed to herbicides.  Indeed, available personnel records show that during the period from his enlistment in July 1976 to his discharge and reenlistment in January 1979, he was either stationed at Fort Gordon in Georgia or was stationed overseas in Germany.  As such, the Veteran is not entitled to a presumption of exposure to herbicides.  Furthermore, the Veteran has not presented any evidence that he was exposed to herbicides, and the evidence of record does not suggest so; accordingly, the Board will not entertain any claim of entitlement to service connection for prostate cancer on a presumptive basis as due to herbicide exposure.  
With that being established, the remaining question before the Board is whether there is a nexus between the Veteran’s post-service development of prostate cancer and an in-service injury, event, or disease. 
The Board concludes that, while the Veteran has diagnosed prostate cancer, the preponderance of the evidence weighs against finding that the condition began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to prostate cancer. Accordingly, service connection for prostate cancer on a direct basis pursuant to 38 C.F.R. § 3.303(a) is denied.   
As malignant tumors are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
VA medical records show that the Veteran was diagnosed with prostate cancer in September 2013 following a biopsy that was ordered after testing revealed elevated PSA levels.  Subsequent medical records show that the Veteran continued to receive treatment for the cancer through VA.  Benign prostate hypertrophy is noted on the “problem list” beginning in 2008. There are no complaints from the Veteran of related symptoms in medical records prior to the diagnosis of prostate cancer. Although the Veteran’s representative included a generic assertion within boilerplate language in the recent written brief that the Veteran has experienced continuity of symptoms since service, there are no indication in the treatment records of such complaints by the Veteran. At no point has any medical treatment provider suggested that the prostate cancer is in any way attributable to the Veteran’s service. 
While the Veteran is competent in general detail his symptoms of prostate cancer, he is not competent to provide a diagnosis in this case or conclude that his prostate cancer is attributable to service.  The issue is medically complex, as it requires the interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran has provided no competent evidence in support of his claim that his prostate cancer is attributable to service, and although he has not been afforded an examination in connection with his claim, VA does not have a duty to provide one here as there is no competent indication that the condition may be associated with the Veteran’s service.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  
There is clear evidence in the file that the Veteran has prostate cancer, but the available objective medical evidence does not show any treatment for the condition prior to 2013, over 25 years after service.  Without any evidence in support of the Veteran’s claim, the Board finds that no medical nexus exists between the Veteran’s prostate cancer and an in-service injury, event or disease. As the preponderance of the evidence is against the Veteran’s claim of service connection for prostate cancer, the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C. § 5107(b).
2. Entitlement to service connection for a sleep disorder
The Veteran contends generally that he has a sleep disorder that he incurred in service or is otherwise attributable to service.  The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that while the Veteran has reported experiencing difficulty sleeping at night, he has never been diagnosed with a sleep disorder.  Ultimately, he has not had the condition at any time during the pendency of the claim or recent to the filing of the claim, and, as such, the claim must be denied.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); see also McClain v. Nicholson, 21 Vet. App. 319 (2007). 
A review of the Veteran’s service treatment records reflects that the Veteran never complained of any issues with sleeping and never received a diagnosis of a sleep disorder.  No sleeping problems were noted on a January 1984 physical examination, which is the latest in-service examination available in the claims file. 
Post-service, the Veteran first reported experiencing difficulty sleeping during a July 2013 psychiatric evaluation at his local VA medical center.  No diagnosis was given at that time to account for the sleeping difficulties, and subsequent treatment records do not reveal any diagnosis of a sleeping disorder.  The Board does note that the Veteran has continued to report sleeping difficulties in the context of his mental health treatment. 
In summation, the Board finds that there is no evidence that the Veteran has a diagnosable sleep disorder that is attributable to service.  While there is no doubt that the Veteran has continued to report experiencing difficulty sleeping since he first acknowledged it in July 2013, he has never been diagnosed with a separate sleep disorder.  Instead, the Veteran’s sleeping difficulties have been considered within the context of his treatment for various mental health conditions.   Furthermore, the Veteran himself has presented no lay evidence or testimony in support of his general contention that his sleeping difficulties, even if they were to be considered a separately diagnosable condition, are attributable to service. 
Ultimately, with no medical evidence in support of the Veteran’s claim, the preponderance of the evidence is against a determination that he has a separately diagnosable sleep disorder that was incurred in service or is otherwise attributable to service.  Accordingly, service connection for a sleep disorder must be denied.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).
REASONS FOR REMAND
1. Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability is remanded.
The Veteran was afforded an examination in April 2014 to evaluate the nature and likely etiology of his erectile dysfunction.  After confirming that the Veteran had erectile dysfunction and that symptoms of the condition began in the mid 1990’s, the VA examiner opined that it was less likely than not that the condition was attributable to the Veteran’s use of prescription anti-hypertensive medication that the Veteran took to alleviate his service-connected hypertension.  In support thereof, the examiner noted that the Veteran had several risk factors for the development of erectile dysfunction, to include alcohol and tobacco use as well as psychosocial issues.  However, despite providing an opinion, the examiner acknowledged that they could not determine the cause of the erectile dysfunction without resorting to mere speculation, referencing the lack of an erectile dysfunction work up in the Veteran’s medical history. 
The Board cannot make a determination as to the Veteran’s claim without an opinion regarding the etiology of the erectile dysfunction that has a clear rationale.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Furthermore, the examiner did not opine as to whether the erectile dysfunction was aggravated by the hypertension or the prescription medication used by the Veteran to alleviate his hypertensive symptoms.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  On remand, the RO must procure a new opinion which provides a definitive rationale for all conclusions reached and specifically addresses the likelihood of whether the erectile dysfunction was aggravated permanently by a service-connected disability. 
2. Entitlement to service connection for PTSD, anxiety disorder, and major depressive disorder are remanded.
In a July 2013 psychological evaluation, the Veteran reported that he witnessed a soldier dying in front of him while serving in Vietnam in 1976.  He contends that this event has contributed to him developing a psychological disorder after service.  It is unclear whether the regional office (RO) restricted its development of the Veteran’s service records to that period of time listed on his DD-214, that is, from January 1979 to September 1987.  As stated, the Veteran’s DD-214 associated with the record notes 2 years, 6 months prior service and other evidence of record establishes that he did indeed serve from July 1976 to January 1979.  On remand, the Veteran should be specifically asked to provide details in connection with incident in which he says he witnessed a soldier dying in front of him in 1976. If the Veteran provides sufficient information, the regional office must then attempt to verify the Veteran’s reported in-service stressor with the appropriate records management agency, after which the Veteran should be afforded a VA psychological examination to evaluate the nature and etiology of his variously diagnosed acquired psychiatric disorders.  
3. Entitlement to service connection for alcohol abuse disorder
Service connection cannot be established on a direct basis for alcohol dependence if the disability is the result of the Veteran’s own willful misconduct or abuse of alcohol.  38 U.S.C. § 105; 38 C.F.R. §§ 3.1(n), 3.301(a).  Instead, a veteran can only be service connected for an alcohol abuse disability that is the result of willful misconduct if it is established that the disability is secondary to, or a symptom of, a service-connected disability.  Allen, supra.  As the Veteran has been treated for his alcohol abuse disorder in the context of his other variously diagnosed acquired psychiatric disorders, the claim of entitlement to service connection for alcohol abuse disorder is intertwined inextricably with the service connection claims for the psychiatric disorders on appeal, and accordingly must be deferred.  See Harris v. Derwinski, 1 Vet. App. 180 (1991)
The matters are REMANDED for the following action:
1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence regarding his treatment for his variously diagnosed psychiatric disorders as well as any evidence to support his reported in-service stressor, to include identifying information about the soldier he purportedly witnessed dying and his location at the time that he witnessed this event. 
2. If the Veteran provides sufficient information in connection with the claimed incident, contact the Joint Service Records Research Center (JSRRC) or other appropriate repository to attempt to verify the Veteran’s alleged stressor; i.e. that he witnessed a fellow solider die while in service in Vietnam in 1976.  
All records obtained must be incorporated into the claims file so they, too, may be considered, and if no records are found this must be documented in the claims file as well. 
3.  Regardless of whether the JSRRC corroborates the stressor as reported by the Veteran, schedule a VA compensation examination by a clinician with appropriate expertise in mental health for an opinion as to the etiology of any acquired psychiatric disorder.  It is essential the claims file be made available to and reviewed by the examiner.  All necessary diagnostic testing and evaluation must be performed.
Prior to the examination, the RO should specifically identify any verified stressors and the examiner should be informed that only those verified stressors may be considered in connection with the PTSD claim. 
Based upon a review of the relevant evidence of record and history provided by the Veteran, the VA examiner should identify all acquired psychiatric diagnoses applicable at any time during the appeal period, diagnosed either under the DSM-IV or DSM-5 diagnostic criteria.  The VA examiner should, if needed, reconcile his or her opinion with any conflicting medical opinions of record.  If a diagnosis of PTSD is deemed appropriate, the examiner must specify (1) whether the verified stressors are sufficient to produce PTSD; and (2) whether there is a link between PTSD symptomatology and the in-service stressors found to be established by the record and found sufficient to produce PTSD.  
The examiner should then provide an opinion as to whether it is it at least as likely as not (a 50 percent probability or higher) that any diagnosed acquired psychiatric disorder had its onset during service or is otherwise related to active service.  
It is essential the examiner discusses the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority.  If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.
4. Provide the Veteran’s claims file to the April 2014 VA examiner or, if they are not available, to another qualified examiner, in order to elicit an addendum opinion regarding the etiology of the erectile dysfunction.  The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran. 
The examiner is asked as to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the erectile dysfunction is etiologically related to the Veteran’s military service.  Regardless of the answer, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that the erectile dysfunction was caused or aggravated by one or more service-connected disabilities (as listed in a June 2014 rating decision).  Specifically, the examiner should determine the likelihood that the Veteran’s erectile dysfunction was permanently aggravated by the use of prescription anti-hypertensive medication. 
The examiner should note that the term “aggravated by” is defined here as any increase in disability. 
Again, the chosen examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed.
 
M.E. LARKIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Christopher M. Collins, Associate Counsel 

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