Citation Nr: 1751368	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  15-20 654	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder.  

2.  Entitlement to service connection for a respiratory disorder.

3.  Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	Maranda S. Hanawalt, Agent


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

C. Lawson, Counsel


INTRODUCTION

The Veteran served on active duty from November 1966 to November 1968.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran presented testimony during a hearing before the undersigned Veterans Law Judge in May 2017.  At the time of the hearing, it was decided to leave the record open for a period of 60 days in order to permit the Veteran's new representative, who was appointed in September 2016, to review the record and submit additional evidence.  The Veteran and his representative were apprised of the type of evidence necessary to support the claims at the time of the hearing.  

The RO had characterized one of the issues on appeal as entitlement to "service connection for Agent Orange."  As explained to the Veteran and his representative at the hearing, the issues on appeal are listed on the first page of this decision.  Service connection can only be granted for disabilities, and Agent Orange is not a disability, so it cannot be adjudicated by the Board.  

The Veteran's representative is not accredited to represent veterans before VA; however, at the time of the hearing she submitted a properly executed VA Form 21-22a power of attorney and indicated thereon that the representation was under 38 C.F.R. § 14.630 (one-time representation without charge or compensation). See 38 C.F.R. § 14.629(b) (2017).

The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran's current psychiatric disorders, anxiety disorder NOS and dysthymic disorder, were not manifest in service and are unrelated to service.  The Veteran does not have the claimed posttraumatic stress disorder (PTSD).   

2.  The Veteran's current respiratory disorder -- pulmonary emphysema/chronic obstructive pulmonary disease -- was not manifest in service and is unrelated to service.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for psychiatric disorder are not met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016).

2.  The criteria for service connection for respiratory disorder are not met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Establishing service connection generally 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).

Service treatment records do not report the currently diagnosed anxiety/dysthymic disorder or pulmonary emphysema/chronic obstructive pulmonary disease, or their symptoms, and to the contrary, the Veteran denied having or having pertinent symptomatology on service discharge examination in November 1968, and his clinical evaluations were normal at that time.  He has testified during his May 2017 hearing before the undersigned that breathing problems started about 12 years prior to the hearing.  This is fairly consistent with medical evidence of record, including the private medical records submitted in May 2017.

Additionally, August 1992 and August 1993 VA examination reports show that the Veteran's lungs were normal in August 1992 and that his lungs were normal in August 1993.  No psychiatric problems or lung problems were reported on those occasions. 

August 2012 private medical records show mild pulmonary emphysema and no acute cardiopulmonary disease.  On VA psychiatric examination in June 2013, the Veteran indicated that he quit smoking in 1993.  

Based on the evidence, the Board finds that service connection is not warranted for psychiatric disorder.  The Veteran claimed service connection for PTSD, and appears to feel that he has it.  However, the VA psychiatric examiner in June 2013 indicated that he does not have it, pointing out that his traumatic events are not persistently reexperienced (and this is necessary for a PTSD diagnosis), and service connection cannot be granted for a disability which does not exist.  The Veteran is not competent to render a diagnosis of PTSD, as medical expertise is required.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

The VA examiner indicated that the Veteran has anxiety disorder NOS, dysthymic disorder, and alcohol abuse in full remission.  He ended his alcohol abuse in early 2012.  His alcohol abuse is not a current disability, and so it cannot be service-connected.  A current disability is required.  In the absence of a current disability, service connection cannot be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992).  Also, compensation may not be paid if a disability is a result of the Veteran's own willful abuse of alcohol.  38 U.S.C.A. § 1110.

Service connection cannot be granted for anxiety or dysthymic disorder either, as the evidence shows that these were not manifest in service and are unrelated to service.  The Veteran denied having or having had psychiatric symptomatology on service discharge examination in November 1968, and he was clinically normal psychiatrically at that time.  The records from the 1990s do not show psychiatric symptomatology, and anxiety and dysthymic disorders were first shown many years after service, with no competent evidence relating them to service on an at least as likely as not basis.  A June 2015 private medical record states that the Veteran's depression symptoms had come on gradually.  The VA psychiatric examiner in June 2013 considered the matter of relationship to service after longitudinally reviewing the Veteran's psychiatric history and concluded that it was less likely than not that current psychiatric symptoms were caused by claimed military stressors or fear of hostile military action.  

Next, based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current respiratory disorder, which the evidence shows is pulmonary emphysema/chronic obstructive pulmonary disease.  The preponderance of the evidence shows that this was not manifest in service and is unrelated to service.  The Veteran denied symptomatology in service and was normal on service discharge examination in November 1968, and it was first shown many years after service.  While the Veteran may feel that it is due to in-service Agent Orange exposure, which is presumed to have occurred since he served in Vietnam [see 38 C.F.R. §§ 3.307, 3.309], it is not on the list of the diseases presumptive to such exposure, and VA must update the list whenever it determines, on the basis of sound medical and scientific evidence, that a positive association exists between such exposure and a disease.  See 38 U.S.C.A. § 1116 (West 2014).  No competent evidence relates it to any incident of service.  

The preponderance of the evidence is against the claims and there is no doubt to be resolved.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991).

The Board appreciates the Veteran's Vietnam service and regrets that favorable decisions cannot be made on the claims decided herein.  


ORDER

Service connection for psychiatric disorder is denied.

Service connection for respiratory disorder is denied.
	

REMAND

In the present case, the Veteran has a diagnosis of hypertension, and the Veteran served in Vietnam from April to November 1968.  Thus, he is presumed to have been exposed to herbicides during this time.  38 C.F.R. § 3.307(a)(6)(iii).  Further, the Board notes that the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2006 (2006 Update) concluded that there is "limited or suggestive" evidence of an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.  Given the 2006 (and subsequent) Update, the Board finds that there is an "indication" that hypertension may be associated with herbicide exposure so as to require a VA medical opinion as to whether the Veteran's hypertension is as likely as not related to herbicide exposure during service has been met.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Absent a medical opinion on this issue, the record is insufficient for the Board to render a decision on the Veteran's claim and a remand is necessary.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his hypertension.  If the Veteran has received private treatment, he should provide the releases necessary for VA to secure the records of such treatment, or the records themselves.  

2. After the development in #1 is complete, the AOJ should obtain a medical opinion to determine the etiology of his hypertension.  The Veteran's claims-file must be reviewed by the clinician in conjunction with the examination.  Any indicated tests or studies should be conducted.  Based on review of the record, the clinician should provide an opinion that responds to the following:

Is it at least as likely as not (a 50% or greater probability) that the Veteran's hypertension is related to service, including due to exposure to herbicides in service?  The examiner is advised that the Veteran is presumed to have been exposed to herbicides/Agent Orange during his service in Vietnam.  The examiner should consider and discuss as necessary the 2006 Update and its findings related to hypertension, i.e., that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension.

The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.

3. The AOJ should then review the record and readjudicate the claims on appeal. If any issue on appeal remains denied to any extent, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative an opportunity to respond, and return the case 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 2014).




______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs