Citation Nr: 1754717 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-36 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for major depressive disorder. 2. Entitlement to service connection for anemia, to include as due to Agent Orange exposure. 3. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, to include as due to Agent Orange exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his sister, and his spouse ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1971, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In that decision, the RO denied entitlement to service connection for posttraumatic stress disorder (PTSD), anemia, and peripheral neuropathy of the upper and lower extremities. In October 2016, the Veteran presented sworn testimony during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In February 2017, the Board reopened the previously denied claim for service connection for a nervous disorder, and recharacterized the reopened claim more broadly, as entitlement to an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). The Board remanded the reopened claim, as well as those for service connection for anemia and peripheral neuropathy of the lower extremities, for further evidentiary development. In July 2017, the RO issued a rating decision granting service connection for high blood pressure and assigned a 10 percent disability rating, which had previously been on appeal after being denied by the RO's September 2012 rating decision. As the Veteran has not appealed either the evaluation or effective date assigned to this disability, this matter is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issues of entitlement to service connection for anemia and peripheral neuropathy of the upper and lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's major depressive disorder had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for major depressive disorder are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2012). As the Board is granting the benefit sought in full for the claim of entitlement to service connection for a major depressive disorder being decided herein, further discussion of the VCAA is unnecessary. II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran claims that his psychiatric disorder is related to his military service. He asserts that while serving as a communication specialist, other service members treated him differently because of his race and he was transferred to another unit where he was exposed to enemy fire and feared for his life. See VA examination report dated April 2017. He also claims that he has had psychiatric symptoms since service. Id. His service treatment records include a June 1968 enlistment examination report which shows no notation of a psychiatric condition or complaint thereof. In August 1969, the Veteran reported that he is unable to sleep. A January 1971 STR documents the Veteran's complaints of nervousness and difficulty sleeping. Furthermore, a physician indicated that the Veteran is short-tempered, easily angered. At that time, the physician diagnosed mild anxiety. His February 1971 separation examination report is absent any complaints or diagnosis of a psychiatric condition. Post service, in July 1971, the Veteran submitted a compensation and pension claim for entitlement to service connection for a nervous condition. In August 1971, he was afforded a VA examination; the examiner diagnosed anxiety neurosis. In July 1972, the Veteran submitted a compensation and pension claim for entitlement to service connection for nerves. In July 2012, the Veteran was afforded a VA psychiatric examination. The VA examiner found that the Veteran did not have a psychiatric diagnosis. During the October 2016 Board hearing, the Veteran's spouse testified that upon the Veteran's return from his military service, he exhibited psychiatric symptoms to include, nervousness, anxiety, and aggressive behavior. In April 2017, the Veteran was afforded an examination. The examiner indicated that the Veteran does not have a diagnosis of PTSD that conforms to DSM-5 criteria; however the examiner diagnosed unspecified neurocognitive disorder and unspecified depressive disorder. The VA examiner opined that the Veteran's psychiatric disorder is not related to his military service because his psychiatric symptoms did not develop until many years following his military service. VA treatment records show a diagnosis of major depressive disorder. See, e.g., VA treatment record dated March 2017. For the reasons below, the Board finds that entitlement to service connection for major depressive disorder is warranted. First, the evidence of record demonstrates a current diagnosis, namely major depressive disorder. Thus, a current disability has been established. Second, the in-service disease or injury element has been met. The Veteran's STRs show complaints of psychiatric symptoms (to include inability to sleep and nervousness) and a diagnosis of mild anxiety. Third, the Veteran's reported physiatric symptoms since service coupled with the evidence of record sufficiently supports a nexus between the current major depressive disorder and his military service. The Board finds that the April 2017 opinion that found that the Veteran's psychiatric disorder is not related to his military service is flawed. To this end, the April 2017 VA examiner's negative nexus opinion was based on an inaccurate factual premise, as the examiner stated that the Veteran's psychiatric symptoms did not develop until many years following his military service; however, the evidence clearly shows that he had psychiatric symptoms in and immediately following service. For example, during service the Veteran had complaints of psychiatric symptoms and was diagnosed with anxiety during service. Furthermore, within one year of the Veteran's separation from his military service, he complained of nervousness and was diagnosed with anxiety neurosis. To this extent, the opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). For this reason, the Board finds that the April 2017 VA opinion is of no probative weight. In sum, the evidence shows that during service the Veteran exhibited psychiatric symptoms and was diagnosed with anxiety. One month following his separation from service, the Veteran filed a service connection claim for a psychiatric disorder, and then again, one year later, he filed a service connection claim for a psychiatric disorder. The Veteran and his spouse have reported that the Veteran has experienced psychiatric symptoms since service and are competent to do so. See Clyburn v. West, 12 Vet. App. 296, 301 (1999)(veteran is competent to testify regarding continuous symptoms since service). The Board finds that the Veteran's statements and his spouse's statements are competent and credible as they are consistent with the evidence of record and there is no evidence to explicitly contradict the Veteran's and spouse's reports. The evidence is thus at least evenly balanced as to whether the Veteran's current major depressive disorder had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a major depressive disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. To the extent that other psychiatric disorders have been diagnosed, there is no indication that there are distinct psychiatric symptoms attributable to such disorders, and all psychiatric symptoms will therefore be attributed to the now service connected major depressive disorder. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Consequently, consideration of whether other psychiatric disorders are related to service is unnecessary. ORDER Entitlement to service connection for major depressive disorder is granted. REMAND The Veteran claims that his anemia and peripheral neuropathy of the upper and lower extremities are due to his military service, to include as due to Agent Orange exposure during his Vietnam service. As indicated above, the Veteran's DD Form 214 reflects that he served in the Republic of Vietnam. Thus, the Veteran is presumed exposed to Agent Orange. See 38 U.S.C. § 1116(f) (West 2012). Certain disabilities that are presumed to be related to Agent Orange exposure are listed at 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e). While early onset peripheral neuropathy is listed, there is no indication that the Veteran has been diagnosed with this disorder. Neither non-early onset peripheral neuropathy nor anemia is listed. Peripheral neuropathy, as an organic disease of the nervous system, is a "chronic disease" under 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). VA Adjudication Manual, M21-1, IV.ii.2.B.2.b (March 2, 2017). Thus, consideration of service connection on a chronicity and continuity of symptomatology basis 38 C.F.R. § 3.303(b), as well as under 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.307 for chronic diseases that manifest within a year of separation from service, is warranted. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regardless of any of the above presumptions, the Veteran is not precluded from establishing service connection for his peripheral neuropathy and anemia. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). STRs dated in February 1970 documents the Veteran's complaints of right leg, right hip, and muscle pain in the upper thighs. Post service reflects current diagnoses of peripheral neuropathy of the upper and lower extremities and anemia. In July 2012, July 2014, and April 2017, the Veteran was afforded VA examinations to determine the nature and etiologies of his peripheral neuropathy of the upper and lower extremities and anemia; however, the VA examiners failed to address whether the Veteran's disabilities are related to his conceded Agent Orange exposure. Therefore, the Board finds that a remand is necessary to obtain a medical opinion to address the etiologies of the Veteran's peripheral neuropathy and anemia. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). Accordingly, the claim is REMANDED for the following action: 1. Obtain any outstanding records of treatment that the Veteran may have received at any VA health care facility. All such available documents should be associated with the claims file. 2. Then, obtain an opinion from an appropriate specialist physician to determine the etiology of the Veteran's peripheral neuropathy of the upper and lower extremities. The claims file, including a copy of this remand, must be made available to the physician. The physician should opine whether it is as least as likely as not (50 percent probability or more) that the current peripheral neuropathy of the upper and lower extremities had its onset during service or within one year of separation, or was otherwise causally or etiologically related to service, to include any symptoms manifested during service or presumed exposure to Agent Orange (i.e., herbicide agent) during service. In answering this question, the physician should not use as a basis for his/her opinion the fact that peripheral neuropathy (other than early onset peripheral neuropathy) is not on the list of diseases presumed service connected in veterans exposed to Agent Orange. The physician should also address the STRs dated in February 1970 that shows the Veteran's complained of right leg, right hip, and muscle pain in the upper thighs. A complete rationale should accompany any opinion provided. 3. Then, obtain an opinion from an appropriate specialist physician to determine the etiology of the Veteran's anemia. The claims file, including a copy of this remand, must be made available to the physician. The physician should opine whether it is as least as likely as not (50 percent probability or more) that the current anemia had its onset during service or was otherwise causally or etiologically related to service, to include presumed exposure to Agent Orange (i.e., herbicide agent) during service. In answering this question, the physician should not use as a basis for his/her opinion the fact that anemia is not on the list of diseases presumed service connected in veterans exposed to Agent Orange. A complete rationale should accompany any opinion provided. 4. Thereafter, adjudicate the claims remaining on appeal. If any benefit sought remains denied, the Veteran and her attorney should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b). Department of Veterans Affairs