Citation Nr: 1341097 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 08-11 097 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had verified active duty in the Navy from April 1967 to August 1967 and verified active duty in the Army from June 1970 to March 1972, including service in the Republic of Vietnam from August 1971 to March 1972. He also had many years of additional service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 RO rating decision that denied service connection for an acquired psychiatric disorder (listed as major depressive disorder) and for a skin disorder (listed as actinic keratosis, claimed as a skin condition). By this decision, the RO also denied service connection for hypertension. In July 2012, the Board remanded this appeal for further development. The Veteran's skin and hypertension claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Major depressive disorder and anxiety disorder had their onset in service. CONCLUSION OF LAW A major depressive disorder and an anxiety disorder were incurred in service. 38 U.S.C.A §§ 101(24), 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for a major depressive disorder and an anxiety disorder. As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(24). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Where service medical records are not available, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran contends that he has a psychiatric disorder that is related to service. He essentially maintains that his psychiatric problems either began, or were aggravated during his service, and have continued since his periods of service. The service treatment records are incomplete. The service treatment records for his period of verified active duty in the Navy from April 1967 to August 1967 do not specifically show complaints, findings, or diagnoses of any psychiatric disorders. A July 1967 separation examination report includes a notation that the Veteran's failure to progress satisfactorily in his training, even with special attention, was evidence of his inaptitude. The service treatment records for the Veteran's verified period of active duty in the Army from June 1972 to March 1972 are not of record, except for a March 1972 report of Physical or Mental Status on Release from Active Service, which does not refer to treatment for any psychiatric problems. The only service treatment records available concerning the Veteran's many years of service in the Army Reserve are dated from 1989 to 1993, and do not show complaints, findings, or diagnoses of any psychiatric disorders. Post-service VA treatment records show treatment for variously diagnosed psychiatric problems, including a major depressive disorder and an anxiety disorder. A September 2012 VA psychiatric examination report includes a notation that the Veteran's claims file was reviewed. The diagnoses were a major depressive disorder, recurrent, severe, without psychotic features; an anxiety disorder, not otherwise specified; and avoidant traits. The examiner reported that the Veteran acknowledged that although he was not aware at the time, he believed he experienced depression for years prior to service. The examiner stated that it was at least as likely as not that his pre-existing depression and difficulty with social interactions (he described himself as shy and uncomfortable in social situation as a youth), coupled with a language barrier and cultural differences he faced upon his Navy enlistment, led to his inability to adjust during his first enlistment. The examiner stated that after three years of civilian employment, the Veteran re-enlisted in the Army and experienced success. The examiner reported that the Veteran did not seek any mental health treatment and that he was able to retire in 1995 after sufficient Army Reserve performance. The examiner reported that a review of the records indicated that the Veteran may have experienced dysthymic disorder symptoms for several years dating back to his pre-service complaints of depression, but that the low-level depression was not significant to interfere with his Army Service or his civilian employment. The examiner commented that it was less likely as not that the Veteran's current major depression disorder and his anxiety disorder had their onset in service. The examiner indicated that it was at least as likely as not that the Veteran's major depressive disorder existed prior to service as a low-level depression (also referred to as a dysthymic disorder), and was not aggravated by service, but interfered with his ability to achieve satisfactory performance and contributed to his entry level separation (from the Navy) and continued into his adult life. The Board notes that although the VA examiner indicated that the Veteran's major depressive disorder existed prior to service, there is no evidence of any treatment for psychiatric problems prior to any of the Veteran's periods of service. The law provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. See 38 U.S.C.A. §§ 1111, 1132 (West 2002). Only such conditions as are recorded in entrance examination reports are to be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such conditions. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Therefore, the presumption of soundness applies and VA cannot presume that, at service entry, the Veteran was not sound with respect to psychiatric problems. There is no evidence of record that the Veteran's current major depressive disorder and an anxiety disorder existed prior to service. The VA examiner specifically indicated that the Veteran's major depressive disorder interfered with his ability to achieve satisfactory performance and contributed to his entry level separation (from the Navy) and continued into his adult life. The Board notes that a July 1967 separation examination report includes a notation that the Veteran's failure to progress satisfactorily in his training, even with special attention, was evidence of his inaptitude. Therefore, the examiner has, at least in part, indicated that the Veteran had a low-level depression during his first period of verified service in the Navy from April 1967 to August 1967. Additionally, the Board observes that the Veteran is competent to report possible psychiatric problems in service and possible psychiatric problems since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). After considering all the evidence and resolving any doubt in the Veteran's favor, the Board finds that the Veteran has a major depressive disorder and an anxiety disorder that had their onset, at least in part, during his periods of service, warranting service connection. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). ORDER Service connection for a major depressive disorder and an anxiety disorder is granted. REMAND This case was previously remanded by the Board in July 2012, partly, to afford the Veteran a VA examination to determine the nature and likely etiology of his claimed skin disorder. The examiner was asked to diagnose all current skin disorders and to opine as to whether it was at least as likely as not that any diagnosed skin disorders were etiologically related to the Veteran's periods of service. The examiner was also requested to indicate whether any diagnosed skin disorders were related, at least in part, to the Veteran's presumed in-service Agent Orange exposure. In the July 2012 remand, the Board indicated that the examiner must specifically acknowledge and discuss any reports of by the Veteran that his claimed skin disorder was first manifested during his periods of service. Pursuant to the July 2012 remand, the Veteran was afforded a VA skin diseases examination in September 2012. The diagnosis was actinic keratosis, with a date of diagnosis in 1995. The Veteran reported that he was diagnosed with actinic keratosis a long time ago and that he thought it was related to his exposure to Agent Orange while in the military. The examiner opined that the Veteran's actinic keratosis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reported that she was unable to identify any service treatment records in the claims file documenting evaluation/management of actinic keratosis, and that there was no evidence that exposure to Agent Orange was related to actinic keratosis at that time. The Board observes that the examiner did not provide much in the way of rationales for her conclusions that the Veteran's actinic keratosis was not related to his periods of service or related to Agent Orange exposure during service. Additionally, the VA examiner did not specifically discuss reports by the Veteran that his claimed skin disorder was first manifested during his periods of service and that he had skin problems since service. The July 2012 Board remand also indicated that the Veteran must be afforded a VA examination to determine the nature and likely etiology of his claimed hypertension. The examiner was to opine as to whether it was at least as likely as not that the Veteran's hypertension was etiologically related to his periods of service. The examiner was also requested to indicate whether any diagnosed skin disorders were related, at least in part, to the Veteran's presumed in-service Agent Orange exposure. In the July 2012 remand, the Board indicated that the examiner must specifically acknowledge and discuss any reports of by the Veteran that his hypertension disorder was first manifested during his periods of service. The Veteran was afforded a VA hypertension examination in September 2012. The diagnosis was hypertension, with a date of diagnosis of 1995. The Veteran reported that he was diagnosed with hypertension in 1995 and that he believed his hypertension was related to his history of exposure to Agent Orange while he was on active duty. The examiner, after a review of the claim file, indicated that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that she was unable to identify any service treatment records in the claims file that documented the evaluation/management of hypertension, and that there was no evidence that exposure to Agent Orange was related to hypertension at that time. The Board observes that the examiner essentially did not provide rationales for her conclusions that the Veteran's hypertension was not related to his periods of service or related to Agent Orange exposure during service. Additionally, as noted in the decision above, the Board has granted service connection for a major depressive disorder and an anxiety disorder. Although the Veteran has not specifically asserted service connection for hypertension to include as secondary to his service-connected major depressive disorder and an anxiety disorder, proceedings before VA are nonadversarial and VA's obligation to analyze claims goes beyond the arguments explicitly made. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000). Therefore, the Board is of the view that a VA examiner should also consider whether the Veteran's hypertension was caused or aggravated by his now service-connected major depressive disorder and an anxiety disorder. A remand by the Board confers upon a Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The September 2012 VA skin diseases and hypertension examination reports did not fulfill the July 2012 remand instructions, and the Board has no choice but to again remand the claims for compliant opinions. Prior to the examinations, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, these issues are REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for skin problems and hypertension since July 2013. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records not already in the claims folder. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his claimed hypertension. The claims folder must be made available to and reviewed by the examiner. In addition to the Veteran's diagnosed hypertension, the examiner must diagnose all current cardiovascular disorders and opine, with adequate rationale, as to whether it is as at least as likely as not that the Veteran's hypertension is etiologically related to his periods service. The examiner must specifically indicate whether the Veteran's hypertension is related, at least in part, to his presumed in-service Agent Orange exposure. The examiner must specifically acknowledge and discuss the any reports by the Veteran that his hypertension disorder was first manifested during his periods of service. If any cardiovascular disorders are diagnosed, the examiner must then opine as to whether any such disorder aggravated (permanently worsened beyond the natural progression) the Veteran's hypertension, and if so, the extent to which it is aggravated. The examiner must also opine as to whether the Veteran's service-connected major depressive disorder and an anxiety disorder caused or aggravated (permanently worsened beyond the natural progression) his hypertension, and if so, the extent to which it is aggravated. All findings and conclusions must be set forth in a legible report. 3. Schedule the Veteran for appropriate VA examination to determine the nature, etiology and/or onset of his claimed skin disorder. The claims folder must be made available to and reviewed by the examiner. The examiner must diagnose all current skin disorders and opine with adequate rationale, as to whether it is at likely as not any diagnosed skin disorders are etiologically related to or had their onset during the Veteran's periods of service. The examiner must specifically indicate whether any diagnosed skin disorders are related, at least in part, to his presumed in-service Agent Orange exposure. The examiner must specifically acknowledge and discuss any reports by the Veteran that his claimed skin disorder was first manifested during his period service. All findings and conclusions must be set forth in a legible report. 4. Then readjudicate the appeal. If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. 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. 2013). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs