Citation Nr: 1000596 Decision Date: 01/05/10 Archive Date: 01/15/10 DOCKET NO. 04-33 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for small vessel ischemic disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1971 to August 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Sioux Falls, South Dakota, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder and small vessel ischemic disease. During the course of the appeal, the Board remanded the case in May 2007 for additional evidentiary development, including scheduling the Veteran for VA medical examinations to obtain nexus opinions addressing the disabilities at issue. However, the Veteran failed to appear for the scheduled examinations and the RO adjudicated the claim based on the record and denied the claim. The case was returned to the Board in July 2009 and the Veteran now continues his appeal. For the reasons that will be further discussed below, the issue of entitlement to service connection for small vessel ischemic disease is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and his representative if any further action is required on their part. FINDING OF FACT Resolving doubt in his favor, the Veteran's generalized anxiety disorder and depression (not otherwise specified) had its onset during active duty. CONCLUSION OF LAW Generalized anxiety disorder and depression (not otherwise specified) were incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, as the benefit sought on appeal is being granted in full, as discussed below, the Board finds that any error related to the VCAA (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)) on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, there is no need to engage in any analysis with respect to whether the requirements of the VCAA have been satisfied concerning the question of service connection for tinnitus. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The evidence of record reflects that the Veteran underwent psychiatric and general VA examinations in February 2003. As to his psychiatric conditions, the VA examiner indicated the Veteran's experiences while serving in the U.S. Air Force and stationed in Guam included a stressful reaction to hearing the noise of jet bombers during his tour. The examiner also notes a claimed incident that occurred after the Veteran's tour in Guam, in which he lost control of his emotions. Specifically, the examiner notes the Veteran's claims as follows: He had orders for an assignment to Texas and had plans to visit his family en route to his new assignment. Upon opening the envelope containing the orders and reading them for the first time he realized that he was to report immediately to his new station with no time for visiting family. He felt a surge of anxiety that included sweating and trembling and a surge of anger that prompted him to impulsively approach his wing commander, fling the orders at him and refuse to comply. The wing commander began initiating court martial procedures, which never materialized after the Colonel intervened and somehow reduced the severity of disciplinary action to an article-15. Ultimately, the examiner diagnosed the Veteran with alcohol dependence, generalized anxiety disorder, depressive disorder and borderline personality traits. In regard to etiology, the examiner originally opined as follows: Despite the lack of documentation of the earliest manifestation of his mood instability while on active duty, in my opinion, his reporting of events while on active duty warrants the benefit of the doubt in favor of the veteran as to the origin of his psychiatric disorders. Thereafter, however, the examiner amended his opinion in a May 2003 statement opining as follows: Upon review of my opinion in favor of the veteran based on his reporting of the earliest manifestation of mood instability precipitated by events while stationed in Guam, I have concluded that with no evidenced based empirical support in his C-file or service medical records of a mood instability or his reported stressors while stationed in Guam, I was not in a position to arrive at that conclusion. The most appropriate determination for this C&P examination is that there is a lack of substantive evidence to conclude that the patient's mood instability first manifested while he was on active duty and that the mood instability was precipitated by his experience on Guam. In short, it appears the examiner only believed that the Veteran's psychiatric conditions were first manifested during active duty insofar as his experiences in Guam can be confirmed by substantive evidence. At that time, the examiner was correct in stating that the Veteran's claims file contained no such objective evidence to verify or corroborate his historical account. Specifically, neither the Veteran's DD-214 nor his service medical records were indicative of foreign service, being stationed in proximity to bomber aircraft, or even the disciplinary action described by the Veteran. Accordingly, the Board concludes the February 2003 examination provides competent medical diagnoses of generalized anxiety disorder and depressive disorder, not otherwise specified, linked to military service insofar as the detailed events of Guam can be verified. The crucial inquiry, then, is whether the alleged incidents can be verified. After the May 2003 amended opinion and the May 2007 Board remand, the Veteran's personnel records were obtained, which verified that he served at Andersen Air Force Base (AFB) in Guam from September 1972 to February 1973 during Operation Bullet Shot. The personnel records further detail the disciplinary incident described by him during his February 2003 VA examination. The records confirm that after his return from Guam, a disciplinary incident occurred wherein he refused to follow orders. The details described in the personnel records are consistent with the Veteran's factual account of his relevant history during the February 2003 examination. The Veteran has also submitted internet research regarding Operation Bullet Shot that is consistent with his statements as well. The Veteran's personnel records reflect that he was stationed at Andersen AFB in Guam in support of this operation. The operation itself was one of the last B-52 bomber strikes conducted against enemy targets in North Vietnam during the closing years of the Vietnam War. Given the nature of the Veteran's assignment, it is extremely likely and probable that he was exposed to noise from bomber aircraft while stationed there. Andersen AFB is, as a matter of historical fact, an American airbase in the Pacific that has been in continuous operation since World War II and is where American jet bombers have been based since the 1950s to the present day. What also can be confirmed are the dates, locations, and purpose of his tour in Guam. Therefore, as a factual matter, the Board concedes that the Veteran has been exposed to noise from jet bombers while he was stationed in Guam during active duty. More recent VA medical records of the Veteran's psychiatric treatment up to March 2007 were obtained and associated with his claims file. These records show current diagnoses of chronic psychiatric impairment, including generalized anxiety disorder and depression (not otherwise specified), as well as personality disorder, alcohol and nicotine dependence, and an organic affective disorder. The 2003 VA opinions came to different conclusions as to whether there was a service relationship. As noted, the VA examiner initially opined that the Veteran's mood problems that the Veteran described as having in service were the earliest manifestations of his current Axis I diagnoses of generalized anxiety disorder and depression (not otherwise specified) to these in-service events. However, the examiner later recanted his opinion because of the lack "empirical support" of the claimed stressors in service. The objective documentary evidence factually confirms the Veteran's military service in Guam, his in-service exposure to jet bomber noise, and the in- service disciplinary action taken against him for having lost emotional control and engaging in an act of insubordination. Put another way, the newly obtained service personnel records now provide the "empirical support" that the May 2003 addendum felt was lacking in the record; and, thus, the underlying basis of the negative opinion has been cured. There is now hard evidence to support the conclusions made in the original February 2003 examination report. Therefore, resolving any remaining doubt in the Veteran's favor, the Board will allow the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for generalized anxiety disorder and depression (not otherwise specified) is thus granted, subject to the applicable laws and regulations that govern awards of VA compensation. See 38 C.F.R. § 3.400 (2009). ORDER Service connection for generalized anxiety disorder and depression (not otherwise specified) is granted. REMAND With respect to the remaining issue on appeal (i.e., entitlement to VA compensation for small vessel ischemic disease) documents and correspondence associated with the Veteran's claims file indicate that pursuant to the Board's remand of May 2007, he was scheduled for a VA medical examination on July 10, 2009. Notice of the scheduled examination was provided to him via a letter dated June 22, 2009, that was sent to his correct mailing address; the Veteran, however, failed to appear for the July 10, 2009 examination. Thereafter, in a letter dated in August 2009, the Veteran explained that he did not intentionally ignore VA's letter instructing him to report for the examination but was away from his residence in the months of June - July 2009 visiting his sisters in Omaha, Nebraska, and was therefore unable to receive timely notice of the scheduled examination. He expressed his desire to appear for an examination to support his claim and, in essence, requested to be rescheduled for the medical examination that he missed. In the interim period since the May 2007 Board remand, the evidence of record indicates that certain events in service that may have some etiological significance regarding the disability at issue have been established to have, in fact, occurred: specifically, that the Veteran was exposed to mercury in service. In view of this factual determination and the plausibility of the Veteran's stated excuse as to why he was unable to show for the scheduled July 2009 VA examination, it is the judgment of the Board that the Veteran should be given one more opportunity to report for a medical examination to address the question of the relationship between his small vessel ischemic disease and his period of military service. He should clearly understand, however, that he is legally obligated to report for examination. 38 C.F.R. §§ 3.158, 3.326, 3.655 (2009); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992); Olson v. Principi, 3 Vet. App. 480 (1992). The Veteran alleges that his current small vessel ischemic disease, which is a disease of that part of the vascular system that supplies blood to the brain, is the result of in- service exposure to toxic mercury or, in the alternative, exposure to pesticides while stationed in Guam. He also alleged that his brain disease may also be due to medications (including Prozac) that he was prescribed to treat his service-connected psychiatric conditions. Post-service medical records indicate the Veteran suffered a head injury in November 1994. It was around this time he was first diagnosed with small vessel ischemic disease. It is not clear from the medical records whether the proximity in time between the injury and the diagnosis connotes etiology or merely the means in which the Veteran's disease was first discovered. The Veteran was afforded a VA examination in February 2003 wherein he was diagnosed with small vessel ischemic disease. No opinion regarding etiology, however, was given. As explained more thoroughly above, the Veteran's service in Guam is confirmed in the record. His service medical records are silent as to any head injury or treatment, diagnosis or complaints of any brain disease. However, no attempts were made by the RO to verify the Veteran's alleged exposure to pesticides. Although subsequent to the Board's May 2007 remand, the RO evidently attempted to verify the Veteran's exposure to mercury in service and, having found none, adjudicated and denied his claim including on this basis, the Board finds that notwithstanding the RO's determination, there is sufficient evidence of record to factually concede that the Veteran was exposed to mercury during active duty. Specifically, his personnel records show that he served as a dental assistant for almost his entire period of active duty, during which he was involved in mixing dental filling material and assisting a dentist in all aspects of dental treatment, including the application of tooth fillings. It is a well-established fact of modern dentistry that the metal mercury in its liquid form is a primary ingredient in the amalgam used to construct dental fillings; mercury has been used in dental filling for at least the last 100 years. It was commonly in use at the time of the Veteran's service and continues to be in common use to the present day. Therefore, a VA examination with nexus opinion should be obtained that addresses this specific contention of the Veteran. Additionally, the RO should contact the Veteran in order to obtain more detailed information about his whereabouts and the circumstances of his alleged exposure to pesticides. Thereafter, the RO should make reasonable efforts to verify exposure. To the extent exposure is confirmed, the new VA examination should ascertain the likely etiology of the Veteran's small vessel ischemic disease with respect to his contention that his exposure to pesticides in service led to this disease. See Duenas v. Principi, 18 Vet. App. 512 (2004) (VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous medical examination in order to determine the nature and etiology of the Veteran's disability). To the extent that the Veteran contends that his small vessel ischemic disease may also be due to medications, to include Prozac, that were prescribed for his psychiatric diagnoses, as service connection has now been granted for his psychiatric disabilities, the new VA examination should also ascertain the likely etiology of the Veteran's small vessel ischemic disease with respect to this contention. Duenas, supra. As previously stated, the VA medical treatment records presently associated with the claims file are not more recent than March 2007; any updated medical records available should therefore be obtained. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify specific circumstances, dates and locations of alleged incidents of pesticide exposure during his military service. 2. The RO should then make any attempts necessary to verify exposure to pesticides in service. 3. Obtain the Veteran's medical records for all VA treatment from March 2007 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 4. After the above evidence is obtained, to the extent available, schedule the Veteran for an appropriate VA examination for his claimed small vessel ischemic disease. The examiner should provide an opinion as to whether it is at least as likely as not that any current brain condition is related to his in-service mercury exposure, any verified in-service pesticide exposure, or any other incident of service versus any post-service incident, to include the November 1994 head injury and the use of medications prescribed to treat his psychiatric diagnoses. Pertinent documents in the claims folder must be reviewed by the examiner and the examiner should provide a complete rationale for any opinion given without resorting to speculation, reconciling any conflicting medical opinions rendered. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 5. The RO should clearly state in the examination notification letter sent to the Veteran that he is legally obligated to report for this examination, pursuant to 38 C.F.R. § 3.655 (2009) 6. The RO should then readjudicate the Veteran's claim for service connection for small vessel ischemic disease. If the claim remains denied, a supplemental statement of the case should be furnished to the Veteran and his representative. After being provided with an opportunity to respond, the case should be returned to the Board if in good order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs