Citation Nr: 1802041 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-05 415 ) 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 an acquired psychiatric disorder to include major depressive disorder and anxiety disorder (claimed as nervous condition). 2. Entitlement to service connection for bilateral tinea pedis (claimed as foot and skin condition). 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a heart condition. 5. Entitlement to service connection for a low back condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board notes that the Veteran's original psychiatric disorder claim related to service connection for a nervous condition. A United States Court of Appeals for Veterans Claims (Court) decision has held that a veteran, who is a lay person, is not competent to diagnose his specific psychiatric disability. Therefore, VA must consider whether the Veteran's psychiatric symptoms, regardless of the label attached to them, warrant service connection. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has been diagnosed with major depressive disorder and generalized anxiety disorder during the course of his treatment. He has also submitted a claim for posttraumatic stress disorder (PTSD), but that has already been denied in a separate, final rating decision. Accordingly, the Board has recharacterized the issue as above. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND First, VA medical center records from February 2010 indicate that the Veteran was being treated for his back by an outside private provider. Therefore any outstanding private records should be obtained upon remand. Next, regarding the Veteran's claimed heart condition, VA treatment records note September 2014 imaging showing scintigraphic evidence of mild adenosine-induced ischemia involving the anterior wall of the left ventricular myocardium. Records also reveal that the Veteran is taking metoprolol succinate. Regarding the Veteran's hypertension claim he has not yet been afforded a VA examination to determine whether it as likely as not related to his conceded Agent Orange exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (service connection based on direct causation may still be established even if the claimed disorder is not presumed to be related to herbicide exposure). The Veteran should be afforded an examination to determine whether he has a heart condition subject to presumptive service connection based on exposure to Agent Orange under 38 C.F.R. §§ 3.307, 3.309, as well as to determine the nature and etiology of his hypertension. Next, the Veteran was afforded a VA examination in April 2010, which noted the Veteran had tinea pedis that was less likely than not related to exposure to Agent Orange. However, service treatment records note tinea versicolor upon separation from service in February 1971. Therefore, the Board finds that a new examination is warranted to address these skin condition findings in service. Finally, the Veteran was afforded a VA psychiatric examination in October 2014 to address a separate posttraumatic stress disorder (PTSD) claim. This examination; however, provided multiple contradictory opinions noting that the Veteran had a PTSD diagnosis in one section, and noting he had stressors related to service, but then in other sections saying that he did not have a PTSD diagnosis and only had a depressive disorder diagnosis. Therefore a psychiatric examination should be conducted to address any non-PTSD acquired psychiatric disorders. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA medical center records. 2. Obtain any outstanding private treatment records, specifically including treatment records for the Veteran's low back condition. 3. Schedule a VA examination to provide an opinion concerning the nature and etiology of the Veteran's claimed heart condition and hypertension. The electronic claims file must be made available to and be reviewed by the examiner. Following review of the claims file the examiner should provide opinions regarding: (a) Whether the Veteran has a current diagnosis of ischemic heart disease based on any necessary testing, the Veteran's medical records, and the VAMC notes of scintigraphic evidence of mild adenosine-induced ischemia involving the anterior wall of the left ventricular myocardium; and (b) Whether it is at least as likely as not (a 50 percent or greater probability) that hypertension is related to active service, to include exposure to Agent Orange. The examiner is reminded that hypertension is not presumptively linked to herbicide exposure. Despite this, the Veteran is presumed to have been exposed to Agent Orange due to his in-country service in Vietnam. The examiner is reminded that even though the examiner may find that the Veteran's type of hypertension is not presumptively linked to herbicide agent exposure, an opinion is needed as to whether the Veteran's hypertension is otherwise linked to exposure to Agent Orange or to the Veteran's military service. A rationale that states that the Veteran's hypertension is not a presumptive disease is not an adequate opinion. Consideration must still be given to the exposure, and to the National Academy of Sciences Institute of Medicine finding that there is "limited or suggestive" evidence of an association between the exposure to Agent Orange and hypertension (which does not rule out a connection). 4. Schedule a VA examination to provide an opinion concerning the nature and etiology of the Veteran's claimed skin and foot conditions (tinea pedis). The electronic claims file must be made available to and be reviewed by the examiner. Identify any diagnosed skin or foot condition and state whether it is at least as likely as not (a 50 percent or greater probability) that the condition began in or is etiologically related to any incident of the Veteran's military service. The examiner should specifically address the finding of tinea versicolor upon separation from service. 5. Schedule a VA examination to provide an opinion concerning the nature and etiology of the Veteran's claimed acquired psychiatric disorder. The electronic claims file must be made available to and be reviewed by the examiner. Identify any acquired psychiatric disorders present during the appeal period and state whether it is at least as likely as not (a 50 percent or greater probability) that the acquired psychiatric disorder or disorders began in or is etiologically related to any incident of the Veteran's military service. The examiners are asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant and his representative have the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2017).