CHRONIC SINUSITIS

MATTHEW W. BLACKWELDER · 2023 · Case ID: 23058130

MIXED

Summary

The Veteran served from September 1979 to February 1980, with subsequent reserve service. The Veteran appeals the denial of service connection for sinusitis, bronchitis, asthma, bilateral pes planus, right and left ankle conditions, right and left leg conditions, sleep apnea, prostate cancer, and erectile dysfunction. Additionally, the Veteran sought compensation under 38 U.S.C. § 1151 for residuals of a transurethral resection of the prostate (TURP) procedure. The Board reviewed the evidence, including service treatment records and testimony from two Board hearings. For the majority of the claimed conditions (sinusitis, bronchitis, asthma, bilateral pes planus, ankles, legs, sleep apnea, prostate cancer, erectile dysfunction), the Board found that the evidence persuasively favored the conclusion that it was less likely than not that these conditions were incurred in or caused by service. The Board also denied the § 1151 claim, finding no evidence of VA fault. The case was remanded for verification of stressors related to the Veteran's claim for an acquired psychiatric disorder, including PTSD and major depressive disorder, as the examiner opined these were more likely than not related to service, but no development had been done to verify the claimed stressors.

Rationale

Service treatment records showed diagnosis of asthma and bronchitis in 1985.; Entrance report noted allergies but no symptoms.; Evidence persuasively favors less likely than not nexus to service.

Special Benefit

§1151

Docket No.

17-01 673

Full Decision Text

Citation Nr: 23058130
Decision Date: 10/26/23 Archive Date: 10/26/23

DOCKET NO. 17-01 673
DATE: October 26, 2023

ORDER

Service connection for sinusitis is denied.

Service connection for bronchitis is denied.

Service connection for asthma is denied.

Service connection for bilateral pes planus is denied.

Service connection for a right ankle condition, to include as secondary to bilateral pes planus, is denied.

Service connection for a left ankle condition, to include as secondary to bilateral pes planus, is denied.

Service connection for a right leg condition, to include as secondary to bilateral pes planus, is denied.

Service connection for a left leg condition, to include as secondary to bilateral pes planus, is denied.

Service connection for sleep apnea is denied.

Compensation under 38 U.S.C. § 1151 for residuals of transurethral resection of the prostate (TURP) procedure/surgery is denied.

Service connection for prostate cancer is denied.

Service connection for erectile dysfunction is denied.

REMANDED

The claim for service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder, is remanded.

FINDINGS OF FACT

1. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's sinusitis was either incurred in or otherwise caused by his active service.

2. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's bronchitis was either incurred in or otherwise caused by his active service.

3. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's asthma was either incurred in or otherwise caused by his active service.

4. The Veteran's bilateral pes planus was noted at entry, and the weight of the evidence does not show that it worsened during service.

5. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's right ankle was either incurred in or otherwise caused by his active service.

6. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's left ankle was either incurred in or otherwise caused by his active service.

7. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's right leg condition was either incurred in or otherwise caused by his active service.

8. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's left leg condition was either incurred in or otherwise caused by his active service.

9. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's sleep apnea was either incurred in or otherwise caused by his active service.

10. The evidence persuasively favors the conclusion that any additional disability resulting from the Veteran's TURP surgery was neither proximately caused by carelessness, negligence or lack of proper skill, error in judgment or similar instance of fault on the part of VA medical personnel; nor was an event not reasonably foreseeable.

11. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's prostate cancer was either incurred in or otherwise caused by his active service.

12. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's erectile dysfunction was either incurred in or otherwise caused by his active service.

CONCLUSIONS OF LAW

1. The criteria for service connection for sinusitis have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304.

2. The criteria for service connection for bronchitis have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304.

3. The criteria for service connection for asthma have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304.

4. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304.

5. The criteria for service connection for a right ankle condition have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310.

6. The criteria for service connection for a left ankle condition have not been met. 38 U.S.C. § 1131
38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304.

4. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304.

5. The criteria for service connection for a right ankle condition have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310.

6. The criteria for service connection for a left ankle condition have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310.

7. The criteria for service connection for a right leg condition have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310.

8. The criteria for service connection for a left leg condition have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310.

9. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304.

10. The criteria for compensation under 38 U.S.C. § 1151 residuals of a TURP procedure have not been met. 38 U.S.C. § 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 17.32.

11. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304.

12. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from September 1979 to February 1980, followed by reserve service.

By way of background, this matter stems from a July 2017 rating decision that denied service connection for the Veteran's sinus, bronchitis, asthma, bilateral ankle, bilateral pes planus, bilateral leg, sleep apnea, prostate cancer, and erectile dysfunction conditions, as well as a December 2017 rating decision that denied entitlement to benefits pursuant to § 1151.

It is of note that the Veteran provided testimony at two Board hearings: in September 2019 with Veterans Law Judge (VLJ) Millikan, and in October 2022 with VLJ Blackwelder. Generally, all VLJs who conduct hearings must participate in making the final determination of the claims on which testimony was received. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. However, VLJ Millikan has since resigned from the Board and therefore a panel is not required.

Service Connection

At the outset, the Board notes that the only period of active service the Veteran has is from September 1979 to February 1980. The rest of the Veteran's reserve service could either be considered active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA).

The term "active military, naval or air service" is defined to include (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury or aggravated in the line of duty. 38 U.S.C. § 101 (24). The court emphasized that the primary difference in requirements between ACDUTRA and INACDUTRA is that ACDUTRA allows for consideration of a disease or injury, while INACDUTRA is limited to an injury only. It was further highlighted that the disease or injury must occur during the period of ACDUTRA or INACDUTRA.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of
U.S.C. § 101 (24). The court emphasized that the primary difference in requirements between ACDUTRA and INACDUTRA is that ACDUTRA allows for consideration of a disease or injury, while INACDUTRA is limited to an injury only. It was further highlighted that the disease or injury must occur during the period of ACDUTRA or INACDUTRA.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service relationship between the present disability and the disease or injury incurred in or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a).

Sinusitis, Bronchitis, Asthma

The Veteran's service treatment records (STRs) show that he was diagnosed with asthma by history and bronchitis in 1985. He noted allergies on his entrance report of medical history in 1979, but stated that he did not have any symptoms.

The Veteran was afforded a sinuses VA examination in June 2017 where he was diagnosed with chronic sinusitis. He reported he had endoscopic sinus surgeries in 1999, 2005 and 2006, and x-rays from June 2017 showed normal radiograph series of the nasal bone. The Veteran was afforded a respiratory examination in June 2017 where he was diagnosed with asthma (2017) and reported that he used his inhaler intermittently. The VA examiner opined that while the Veteran had current diagnoses of asthma, and chronic sinusitis, the medical records did not provide evidence of a breathing condition while he was serving in the military.

The Veteran was afforded another sinuses examination in March 2021 and was diagnosed with chronic sinusitis (2009). He reported onset to be in 1980, that his eyes would swell up, and that he has continued to have ongoing problems since which resulted in three sinus surgeries. The VA examiner noted that one, possibly two of the three surgeries were due to maxillary sinus fractures from a motor vehicle accident in 2014. The Veteran was afforded a respiratory examination in March 2021 at which he was diagnosed with asthma (1985) and COPD (2016). He reported the onset to be 1979-1980, that he was diagnosed with asthma around the same time he had bronchitis, and that he continued to have respiratory problems. The VA examiner opined that it was less likely than not that the Veteran's asthma, bronchitis, and sinus conditions were incurred in or otherwise caused by his active service. She stated she reviewed the claims file from the Veteran's time in active service (1979-1980), and that there were no documented visits for or treatment of respiratory problems, indicating it would be highly unlikely that his conditions started during active duty. She stated that she also reviewed the Veteran's reserve records from 1982-1985 and stated that while the Veteran had acute sinus conditions between those years, there were no chronic diagnoses given, and the Veteran was not diagnosed with sinusitis until 2019. Her opinion was based on the fact that bronchitis is an acute condition, that there was no evidence of chronic bronchitis in the Veteran's claims file, and that the Veteran was diagnosed with bronchitis and asthma five years after separation based on the provided service dates.

The Veteran's post-service treatment records show that he had a past history of seasonal asthma, three sinus surgeries, and that chronic sinusitis was listed on his problems list. The Veteran also submitted a statement in December 2021 where he reported that his bronchitis attack was not acute, and that he has continued to have these problems since active duty.

At the 2015 Board hearing, the Veteran testified that he received treatment for asthma while on active duty at Fort Benning, that he was diagnosed with wheezing and asthma in June 1985, and in May 1985 he was treated for hay fever and wheezing. He stated that he did not have any breathing issues before active duty and that he has had three sinus surgeries since service. He contended that the VA examinations did not address the evidence of record.

At the 2022 Board hearing, the Veteran testified that while at Fort Benning, he was told he was having
where he reported that his bronchitis attack was not acute, and that he has continued to have these problems since active duty.

At the 2022 Board hearing, the Veteran testified that while at Fort Benning, he was told he was having a bronchitis attack. He stated that he had breathing problems as a child, which led to tonsil removal at age twelve. In the 1980s, he was given an inhaler while on a two-week drill at Fort Benning. He again provided testimony regarding his three sinus surgeries.

Analysis

As stated above, the Veteran's only period of active duty was from September 1979 to February 1980. At his August 1979 enlistment examination, the Veteran noted allergies, but stated he did not have any symptoms, and at his January 1980 examination, the Veteran did not report any breathing issues such as asthma, bronchitis, or sinusitis. Medical notes from 1982 show no known allergies, and dental treatment notes from August 1983 show that the Veteran listed pollen and dust as allergies.

In May 1985 the Veteran reported to the clinic for trouble breathing/coughing for one day and was diagnosed with a viral upper respiratory infection. A few days later he was seen again for similar symptoms and was diagnosed with bronchitis. The medical treatment notes show that the Veteran was also diagnosed with asthma by history.

The Veteran testified that he began having breathing problems while at Fort Benning, while on a two-week drill, however the Veteran's chronological statement of retirement points from February 1986, do not show that he had any active or inactive training from August 30, 1983, to August 29, 1985, but rather show that he was still a member of the reserve unit.

However, even assuming the Veteran's period of reserve service to be considered INACDUTRA, as stated above, only injuries may be considered for service connection during this time, not diseases. The Veteran's respiratory conditions are diseases and may only be considered for service-connection for periods of ACDUTRA, or periods of active duty. The Veteran testified that he was on a two-week drill at Fort Benning when he began having breathing problems, however, he did not provide any dates, or indicate when that drill may have occurred. As such, the Board cannot assume that all that dates the Veteran received treatment for breathing issues coincide with a period of ACDUTRA.

Furthermore, the March 2021 VA examiner provided negative opinions, finding that while the Veteran suffered respiratory conditions between 1982-1985 including sinus issues and bronchitis, they were acute conditions, with no chronic diagnoses. She stated that the Veteran was not diagnosed with chronic sinusitis until 2019, nearly three decades post separation, and that he was not diagnosed with asthma until five years after separation from service. She also clarified that bronchitis is in and of itself, an acute condition. While the Veteran reported having three sinus surgeries, the 2021 VA examiner stated that one, and possibly two, of those was in relation to a motor vehicle accident, indicating that the need for the surgeries was not due to a chronic respiratory condition that stemmed from service.

As the evidence is against a finding that the Veteran's bronchitis, asthma, and/or sinusitis began during a period of active service or during active duty for training, and that it had continued since then, service connection is denied.

Feet, Bilateral Ankle, Bilateral Leg

The Veteran's entrance examination in August 1979 noted that he had flat feet and in a January 1980 examination, the Veteran noted he had cramps in legs.

Regarding his feet, the Veteran underwent a VA examination in June 2017 and was diagnosed with flat feet (2017). The Veteran was unsure about onset, but stated that his condition began before basic training, and got worse after. Pain was noted upon, and the Veteran reported using crutches occasionally. The VA examiner opined that the Veteran's foot condition clearly and unmistakably existed prior to service but was not clearly and unmistakably aggravated beyond the natural progression by service. Her rationale was that there were no complaints of or treatment for this condition in service.

The Veteran was afforded another VA examination in March 2021 and was diagnosed with pes planus (1979). He reported that he had problems with
he had cramps in legs.

The Veteran was afforded another VA examination in March 2021 and was diagnosed with pes planus (1979). He reported that he had problems with his feet in basic training and that he has experienced ongoing problems with his feet since. No pain was noted upon examination, and the examiner noted the Veteran's symptoms were subjective only. The VA examiner provided a negative opinion regarding direct service connection, as the Veteran's condition pre-existed service, and also opined that the Veteran's pre-existing condition clearly and unmistakable was not aggravated by his service. She stated that temporary aggravation was plausible, but that there was no evidence of permanent aggravation of pre-existing flat feet, including the medical literature she reviewed. She stated that the Veteran was treated for pes planus in 2017, 37 years after separation.

Regarding his ankles and legs, the Veteran was not afforded specific examinations for his ankles or legs, however the April 2021 examiner opined that there were no noted bilateral ankle or leg conditions as a result of the Veteran's flatfeet. The Veteran was noted to have been treated for a left ankle condition in 2019, and the records show that this was the result of a work injury.

The Veteran's VA treatment records show that he sought treatment for swelling in his feet and ankles in May 2017, with onset being a few days prior. He was seen again in August 2017 for swelling in both feet and ankles after a 17-hour car ride. He denied a history of trauma or injury. In March 2017 the Veteran complained of a new onset of bilateral leg pain that he described as dull and aching for three days. In June 2019, the Veteran reported pain and worsening foot neuropathy, and he was prescribed custom foot orthotics. The Veteran underwent physical therapy in January 2019, and reported ongoing ankle and foot pain since service. In November 2019, the Veteran was treated for left ankle pain after being injured at work, and later reported that he submitted a workers compensation claim.

At the 2015 Board hearing, the Veteran testified that he had flat feet prior to service and signed a waiver. He stated he had zero pain prior to service, but with the two mile runs, the pain increased to a 3/10. He stated that wearing boots during runs and marches increased his foot pain. He testified that his bilateral leg and ankle conditions were secondary to his foot condition and/or wearing boots. He stated his right knee, which he hurt in high school, pre-existed service but got worse. He would then overcompensate with his left knee during training.

At the 2022 Board hearing, the Veteran testified that he was told by a podiatrist in 2020 that his foot condition was caused by or related to his military service, and that he has had tingling and arthritis in his legs and ankles. However, there is no record from any podiatrist to explain the reasoning of such an assertion.

Here, there is no competent medical evidence of record to show that the Veteran's bilateral flatfeet were aggravated during service, to the point where they became a chronic condition. Both the 2017 and 2021 VA examiners found that the Veteran's bilateral foot condition, which preexisted service, was not aggravated beyond its natural progression, because the records did not show treatment until nearly 40 years after service. Additionally, the 2021 VA examiner stated that a thorough review of medical literature failed to support that a pre-existing condition was permanently aggravated by service.

The 2017 and 2021 VA examiner's opinions are supported by the evidence of record. The Board acknowledges the Veteran's reports that he has continued to have pain in his feet since service, however the first time the Veteran was treated for his feet was in 2017, 37 years after service. At the time, he complained of swelling in his feet, and was not treated for pain in his feet until 2019. While pain was noted at the 2017 VA examination, no pain was noted at the 2021 VA examination, further supporting a finding that the Veteran's bilateral foot pain has not continued since service, but rather that it began again in 2017 when he was seen for swelling.

It is also noted
2017 and 2021 VA examiner's opinions are supported by the evidence of record. The Board acknowledges the Veteran's reports that he has continued to have pain in his feet since service, however the first time the Veteran was treated for his feet was in 2017, 37 years after service. At the time, he complained of swelling in his feet, and was not treated for pain in his feet until 2019. While pain was noted at the 2017 VA examination, no pain was noted at the 2021 VA examination, further supporting a finding that the Veteran's bilateral foot pain has not continued since service, but rather that it began again in 2017 when he was seen for swelling.

It is also noted that because the Veteran's pes planus was noted at enlistment, the presumption of soundness does not attach, and the Veteran must show that it is at least as likely as not (50 percent or greater probability) that his feet worsened during service in order to trigger VA's duty to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. This was not done, as the Veteran specifically denied any foot trouble on a medical history survey completed in January 1980. On this survey, the Veteran noted a number of physical problems, and even marked unsure on a couple of disabilities such as nervous trouble. A review of the form makes it plainly clear that the Veteran took the time to review the survey, and he marked conditions he had. Moreover, if he was unsure of a condition he marked "don't know". As such, the obvious take away from the fact that he did not mark foot trouble was that he was not experiencing foot trouble at that time. This evidence was generated contemporaneously with the Veteran's service and is therefore considered to be the most probative evidence of his foot condition at that time. It carries considerably more weight than assertions rendered decades later that are attempting to recall what the foot condition was like at that specific time in history.

Regarding the Veteran's ankles and legs, there is no evidence to support a grant of service connection on a direct basis. The Veteran's STRs were silent for any complaints of or treatment for ankle or leg conditions in service, other than a notation of leg cramps. The Veteran was treated for his ankles and legs beginning 37 years post service, and his ankle condition was attributed to an injury at work. While the Veteran was treated for aching and pain in his legs, records do not show he has been diagnosed with arthritis in his legs.

The Board acknowledges that there were no VA examinations to assess the Veteran's claimed bilateral leg and ankle conditions. However, VA is not required to provide an examination merely because a Veteran files a claim for benefits. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).

VA is obligated to provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the record does not show competent medical or lay evidence of a current bilateral leg or ankle condition, or an indication that recurrent symptoms may be association with the Veteran's service, or a service-connected disability. In the absence of such evidence, the Board does not find that a VA examination is warranted.

The Board also acknowledges the Veteran's 2015 Board testimony where he stated that he has had pre-existing right knee problems and that he overcompensated with his left knee. However, the Veteran has not filed a claim for his bilateral knee conditions, and later testified that the condition he did file a claim for, included tingling and arthritis in his legs. The Board finds that a knee condition is a wholly separate condition from a leg condition, which the rating criteria recognize, and can be identified as such (unlike the facts in Clemons that center around the recharacterization of a Veteran's mental health conditions, [holding that VA must liberally interpret a Veteran's characterization of his disability when a broad interpretation is more favorable to the Veteran]). See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Furthermore, as the Veteran is not service connected for a bilateral foot condition, service connection is not warranted on a secondary
for his bilateral knee conditions, and later testified that the condition he did file a claim for, included tingling and arthritis in his legs. The Board finds that a knee condition is a wholly separate condition from a leg condition, which the rating criteria recognize, and can be identified as such (unlike the facts in Clemons that center around the recharacterization of a Veteran's mental health conditions, [holding that VA must liberally interpret a Veteran's characterization of his disability when a broad interpretation is more favorable to the Veteran]). See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Furthermore, as the Veteran is not service connected for a bilateral foot condition, service connection is not warranted on a secondary basis for his ankle and leg conditions.

As such, service connection for bilateral feet, ankles, and legs, is denied.

Sleep Apnea

The Veterans STRs are silent with respect to any sleep issues or symptoms such as snoring, fatigue, choking or gasping during sleep.

The Veteran was afforded a VA examination in March 2021 and was diagnosed with sleep apnea (2015). He stated that the onset of the condition was around 2015 and that he spoke with his primary care physician about it after he had some trouble sleeping. The VA examiner provided a negative nexus statement, finding that there was no documented sleep complaint or diagnosis during active duty, and that the Veteran was not diagnosed with sleep apnea until 2015. She also stated that the Veteran denied sleeping problems on his January 1980 examination.

The Veteran's VA treatment records show that a sleep study was conducted in February 2015, after which the Veteran was diagnosed with moderate obstructive sleep apnea.

At the 2015 Board hearing, the Veteran testified that he snored lightly when he had his tonsils removed, and that he was told in 1979 by fellow servicemen that he snored and gasped for breath. He stated that he believed his sleep apnea was caused by his bronchitis and asthma, and if not that, then by weight gain, and that his weight gain was due to alcohol.

At the 2022 Board hearing, the Veteran testified that he snored in AIT, and that he experienced hypersomnia, and falling asleep during tasks.

Here, the evidence is against a finding that the Veteran's sleep apnea either began in or was caused by his active service. The Board acknowledges the Veteran's lay contentions. He is considered competent to report the observable symptoms of snoring, and fatigue. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the mere presence of snoring, and fatigue alone are not diagnostic of sleep apnea, and their presence does not clinically establish that sleep apnea was present during service. Determining the etiology of the Veteran's sleep apnea is a medically complex question which the Veteran lacks the medical training and expertise to answer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).

To address the questions the Veteran lacks the medical expertise to answer, VA obtained a medical opinion to consider the Veteran's symptoms, lay statements and medical history and opine as to whether sleep apnea either occurred in, or was otherwise caused by his active service.

The 2021 VA examiner found that it was less likely than not that the Veteran's sleep apnea was due to his service. The examiner explained that the Veteran's STRs were silent for any symptoms or treatment of sleep troubles during service, as well as the fact that the Veteran was diagnosed with sleep apnea more than 30 years after service.

The 2021 VA examiner's rationale is supported by the Veteran's post-service treatment records, which show that he was not diagnosed with sleep apnea until 2015, and that the Veteran stated he sought treatment in 2015 after having some trouble sleeping. The Board acknowledges the Veteran's contention that his sleep apnea was caused by his bronchitis and asthma, or by weight gain. However, there is no medical evidence of record to support those contentions, and no medical evidence to show that the Veteran's weight gain could have been attributable to his service-connected tinnitus.

As the evidence is against a finding that the Veteran's sleep apnea was caused by his service, service connection for sleep apnea is denied.

1151 Claim, Prostate Cancer, and Erectile Dysfunction

The Veteran's STRs do not show any complaints of treatment for prostate conditions, or erectile dysfunction.

As the evidence is against a finding that the Veteran's sleep apnea was caused by his service, service connection for sleep apnea is denied.

1151 Claim, Prostate Cancer, and Erectile Dysfunction

The Veteran's STRs do not show any complaints of treatment for prostate conditions, or erectile dysfunction.

The Veteran was afforded a VA examination in December 2017 and was diagnosed with erectile dysfunction, neoplasms of the male reproductive system, and a personal history of a TURP procedure. The Veteran reported that he had trouble with erectile dysfunction for the past several years, and a low sex drive. The VA examiner noted that prostate cancer was found in the Veteran's prostate tissue so testosterone was stopped, and that he had a history of polysubstance abuse, including opioids which could contribute to erectile dysfunction. The VA examiner stated that while the Veteran reported having trouble with erectile dysfunction after his TURP procedure, it was clearly a problem long before then. The VA examiner attributed the Veteran's voiding dysfunction and retrograde ejaculation to his TURP procedure, and his erectile dysfunction to low testosterone and polysubstance abuse.

The VA examiner opined that the Veteran had the TURP procedure done in November 2016, and has had persistent urinary side effects since, with symptom improvement. The examiner stated that the Veteran saw multiple full-fledged physicians before the TURP procedure was done, including senior/attending physicians, and that the risks of the surgery was discussed. Specifically, that a TURP procedure was discussed the day that a cytoscopy was done, as an option because the Veteran's lateral lobes of the prostate were meeting in the middle, blocking the urine flow. Additionally, the examiner noted that the Veteran was on the usual medications used to treat an enlarged prostate and that as medication therapy did not provide adequate symptom relief, surgery was recommended. The VA examiner stated the Veteran requested time to think about it, and at his next appointment a month later, consent was given. She stated that some of the usual side effects that are known to be possible after a TURP procedure are postprostatectomy syndrome, erectile dysfunction, retrograde ejaculation, urethral stricture, urinary retention, and urinary incontinence, and that the Veteran had some of the known side effects. Ultimately, she stated that the Veteran received timely care for his urinary issues from 2015-2016, and that after the TURP procedure, he received appropriate follow up medical care.

The Veteran underwent another examination for prostate cancer in April 2021 and was diagnosed with retrograde ejaculation post TURP procedure. The Veteran stated he was having urinary problems which resulted in the TURP procedure, and that he had blood in his urine from October to February. He reported chronic pain and occasional urinary incontinency. The VA examiner noted that the Veteran had not received cancer treatment (in watchful waiting status), and that a peer reviewed resource showed that retrograde ejaculation is a commonly occurring side effect following a TURP procedure.

The VA examiner opined that it was less likely than not that the Veteran's condition was caused by or became worse as a result of VA treatment, additional diagnoses from carelessness, or resulted from an event that could not have been reasonably foreseeable. He stated that a review of the Veteran's diagnosis was appropriate and timely, accepted appropriate protocols were followed and the standard of care was met. The VA examiner stated the Veteran was seen in 2016 with increased PSA and obstructive symptoms and that his pre-op consent was part of the record showing the potential risks and benefits of the TURP surgery. He stated that appropriate VA care was shown, and that some symptoms pre-dated the Veteran's procedure, some are related to the procedure done at the right time and manner, some are related to prostate cancer, and there was no science to determine the percentage due to each category.

The Veteran's post-service treatment records show that he complained of urinary frequency in 2015, and difficulty urinating for two years. In May 2016 the Veteran reported the same symptoms as well as a history of erectile dysfunction for several years and a low sex drive. He stated that he tried testosterone and Flomax without results and requested to see urology. In August 2016, the Veteran stated that his family had a history of prostate cancer and that he would like a prostate biopsy. In September 2016 the Veteran underwent a TURS procedure in order to get a prostate biopsy, which was negative. On September 15, 2016, the physicians discussed the Veteran's obstructive symptoms, as well as his negative TURS biopsy and the possibility of a TURP procedure. The
2015, and difficulty urinating for two years. In May 2016 the Veteran reported the same symptoms as well as a history of erectile dysfunction for several years and a low sex drive. He stated that he tried testosterone and Flomax without results and requested to see urology. In August 2016, the Veteran stated that his family had a history of prostate cancer and that he would like a prostate biopsy. In September 2016 the Veteran underwent a TURS procedure in order to get a prostate biopsy, which was negative. On September 15, 2016, the physicians discussed the Veteran's obstructive symptoms, as well as his negative TURS biopsy and the possibility of a TURP procedure. The Veteran stated he may consider a TURP procedure but wanted to think about it. On October 27, 2016, the Veteran followed up with his doctor to discuss the TURP procedure, and to provide consent. His doctor noted that informed consent was received from the Veteran, that he had the decision-making capacity and that the consent was obtained by a resident and approved by an attending. The same day, the Veteran was advised of pre-operative instructions, his questions and concerns were answered, he was advised of potential complications of general anesthesia, and he was provided the credentials of the attending provider who would be doing his surgery.

On November 2, 2016, the Veteran underwent his TURP procedure. It was noted that prior to the surgery, relevant aspects of the procedure (including risks) were discussed with the Veteran, that he indicated comprehension of the discussion and had an opportunity to ask questions, and that he reached a decision without coercion by the practitioner. He stated he agreed with the scheduled procedure, and it was noted that written consent was obtained per VA policy. The next day, the Veteran told his physicians that he felt the procedure went well. A week later, the Veteran was told that the TURP procedure revealed the Veteran had prostate cancer. In the visit notes, the physician stated they went over the Veteran's entire urology course, elevated PSA levels, negative biopsy which led to the TURP procedure, and that the TURP chips revealed cancer. The Veteran stated that if they knew it was cancer, why wouldn't they have taken it out during surgery, and that he would get a second opinion.

The Veteran underwent a pelvic MRI in December 2016 which showed a prominent right external iliac lymph node measuring bigger than in 2014, and a mild thick rim enhancement at the edge of the TURP defect which could be from post-surgical changes. Post-surgery, the Veteran complained of frequent and burning/painful urination, sexual difficulty, and incontinence, and was diagnosed with an enlarged prostate with lower urinary tract symptoms, erectile dysfunction, nocturia, prostate cancer, and urinary urgency. Another MRI was done in November 2017 which showed concerning prostatic nodules. The Veteran subsequently took part in a study of prostate cancer patients from the Oklahoma Health Sciences center and provided consent. An MRI fusion biopsy from April 2018 was negative for any malignancy.

The Veteran's fiancé submitted a statement in July 2017 where she stated that a PA took care of them instead of a doctor, and that they did not spend much time on the details of the surgery or side effects. She also stated that the Veteran was told he did not have cancer, but was still having urinary blockage, and that was why the TURP procedure was introduced and highly recommended. She contended that the excitement from not having cancer, coupled with the pain medications and muscle relaxers impaired the Veteran, that he was not given time to think, and that there was a blank witness signature on the procedure form.

At the 2015 Board hearing, the Veteran testified that he was told the TURP procedure would help his stream, but was not informed of potential adverse outcomes, and that his consent was given under false pretenses (including that he was not provided documentation to review). He also stated that post-surgery, he experienced bleeding, retrograde ejaculation, erectile dysfunction, urinary issues. The Veteran contended that the 2017 VA examination was inadequate because the examiner was an internal medicine physician, and that he has not been diagnosed with prostate. He stated that his private doctor, Dr. S. has not diagnosed him with prostate cancer.

At the 2022 Board hearing, the Veteran testified that from November to the end of January he bled out to the point where he was anemic, and that he never received paperwork of what to expect after surgery. He contended that his prostate diagnosis is in reference to the TURP surgery because he was told by the PA that he did not need one. He also stated that prior to the surgery, he was experiencing some erectile issues that were different than before.
issues. The Veteran contended that the 2017 VA examination was inadequate because the examiner was an internal medicine physician, and that he has not been diagnosed with prostate. He stated that his private doctor, Dr. S. has not diagnosed him with prostate cancer.

Analysis

Here, the evidence shows that the Veteran was provided treatment for urinary blockage issues prior to his TURP surgery, that he was informed of the possible risks, that he was given an opportunity to think about whether he wanted to have the surgery, and that the conditions he experienced post-surgery were known side effects of the surgery.

The Veteran was treated for urinary issues prior to his surgery with various medications. The Veteran indicated that he had a family history of prostate cancer and that he wanted a prostate biopsy. He underwent the biopsy, which was negative, and as medicinal efforts were not working to relieve the Veteran of his urinary symptoms, a TURP procedure was suggested. The Veteran has contended that he was not given enough time to think about the procedure or given any information regarding its side effects. However, the record shows that TURP was discussed in September 2016, and the Veteran stated he wanted some time to think about it. A month later at his follow-up appointment, the Veteran provided his informed consent for the procedure after discussing the risks of the procedure, and it was noted that he had the decision-making capacity to do so, and that his consent was obtained by a resident and approved by an attending.

Various VA opinions have been obtained throughout the course of this appeal, which have all been negative. The December 2017 examiner walked through the Veteran's treatment history, including his pre- and post-surgery notes, and concluded that the Veteran received appropriate care, that the TURP procedure was discussed, and that the Veteran provided informed consent. She also stated that the Veteran experienced some of the usual side effects that are known to be possible after the surgery. Later in her opinion, she listed some common complications including erectile dysfunction, urinary incontinence, and retrograde ejaculation. As part of her examination notes, she stated that the Veteran's retrograde ejaculation was due to the TURP procedure, that the Veteran continued to have voiding dysfunction after the TURP procedure but that he's shown steady improvement, and that the Veteran's erectile dysfunction was due to low testosterone levels and polysubstance abuse.

The March 2021 examiner opined that the Veteran's diagnosis was appropriate and timely, that accepted appropriate protocols were followed and the standard of care was met. His rationale was that the Veteran was seen in 2016 with increased PSA and obstructive symptoms. He was treated with a TURS and TURP procedure which revealed prostate cancer, and after which the Veteran reported some incontinence, urgency, and retrograde ejaculation. The April 2021 examiner stated that retrograde ejaculation is a commonly occurring side effect of a TURP procedure, and that the Veteran's erectile dysfunction existed prior to the TURP procedure.

Looking at the evidence as a whole, and taking into account the Veteran and his fiancé's lay statements and contentions, the evidence is against a finding that the Veteran's current symptoms of retrograde ejaculation, erectile dysfunction, urinary incontinency, and prostate cancer are a result of negligence or carelessness on the part of VA. As such, compensation under 38 U.S.C. § 1151 for residuals from a TURP procedure, is denied.

Regarding service connection for erectile dysfunction and prostate cancer, as stated above, the Veteran's STRs do not show any complaints of treatment for these conditions during or within one year of separation from service, and the Veteran has not contended that these conditions were a result of his active service or as a result of his service-connected tinnitus. Rather, the Veteran has contended that these conditions were the result of his TURP procedure, however as stated above, the evidence shows they were not. The April 2021 VA examiner found that the Veteran's erectile dysfunction existed prior to the TURP procedure, and the December 2017 examiner opined his erectile dysfunction was due to low testosterone levels and polysubstance abuse. In other words, the VA examiners made it clear that the Veteran's erectile dysfunction was not caused by his TURP procedure but was due to other causes and these conclusions have been supported by the evidence of record. Even
Veteran has not contended that these conditions were a result of his active service or as a result of his service-connected tinnitus. Rather, the Veteran has contended that these conditions were the result of his TURP procedure, however as stated above, the evidence shows they were not. The April 2021 VA examiner found that the Veteran's erectile dysfunction existed prior to the TURP procedure, and the December 2017 examiner opined his erectile dysfunction was due to low testosterone levels and polysubstance abuse. In other words, the VA examiners made it clear that the Veteran's erectile dysfunction was not caused by his TURP procedure but was due to other causes and these conclusions have been supported by the evidence of record. Even if they did find his erectile dysfunction to have been caused by the TURP procedure, the 2017 VA examiner explained that erectile dysfunction is a known side effect, and that the Veteran was informed of the risks of the procedure.

Similarly, there is no medical evidence to support the conclusion that the Veteran's prostate cancer in and of itself was caused by the TURP procedure. The physicians conducted a TURS biopsy which was negative. They then, with the Veteran's consent, proceeded with a TURP procedure, which showed some indication of prostate cancer. The Veteran obtained a second opinion from Dr. S., where MRIs from November 2017 showed concerning prostatic nodules and shortly thereafter, the Veteran took part in a study of prostate cancer patients from the Oklahoma Health Sciences Center. The Veteran has contended that this cancer would not be a concern if it was not disturbed by operation, however there is no medical evidence of record to support that conclusion. The Veteran was informed of what was found after the TURP procedure, and he took the opportunity to get a second opinion elsewhere. The Board is sympathetic to the Veteran for what he has gone through, however, the evidence does not show that his prostate cancer was caused by either his service, or as a result of his TURP procedure. As such, service connection for prostate cancer and erectile dysfunction is denied.

REASONS FOR REMAND

The Veteran is also seeking service connection for an acquired psychiatric disorder. In December 2021, he was provided a mental disorder questionnaire, where he described a few stressors reported experiencing in service that impacted his mental health. The examiner opined that the Veteran's diagnoses (major depressive disorder, anxiety with symptoms of post-traumatic stress disorder (PTSD) and polysubstance dependence in full remission) were consistent with his self-report and are more likely than not the result of military service.

In December 2021, the Veteran submitted a lay statement describing two stressors he experienced inservice, and in October 2022, he submitted a formal PTSD stressor statement. However, it does not appear than any development has been done to attempt to verify these stressors. As such, a remand is necessary.

The matters are REMANDED for the following action:

Verify the Veteran's stressors as outlined in his stressor statement. See "VA Form 21-0781, Statement in Support of Claim for PTSD" date added 10/5/2022.

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Elizabeth A. Gadson, 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.

Analyze in VA Law Explorer