Citation Nr: 18141750 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 10-44 371A DATE: October 11, 2018 ORDER Service connection for generalized anxiety disorder (GAD) is granted. Service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Service connection for prostate cancer, to include as due to herbicide exposure, is remanded. Compensation pursuant to 38 U.S.C. § 1151 for chills, fever, and bloody stool as a result of a prostate biopsy is remanded. FINDINGS OF FACT 1. The Veteran’s GAD had its onset during service. 2. The Veteran does not have a current diagnosis of PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for GAD have been met. 38 U.S.C. 1110, 5107; 38 C.F.R. 3.102, 3.303. 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. 1110, 5107; 38 C.F.R. 3.102, 3.303, 3.304(f); 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1969. The service connection issues come before the Board of Veterans Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of compensation pursuant to section 1151 is on appeal from a June 2009 rating decision. In February 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. The Veteran has been diagnosed with GAD. December 2008 VA examination at 10. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran’s claim for service connection for PTSD as one for service connection for an acquired psychiatric disorder, to include PTSD and GAD. At the February 2018 Board hearing, the Veteran submitted his and his spouse’s lay statements regarding his symptoms. At the Board hearing, he waived initial RO consideration of this additional evidence. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection specifically for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. 3.304(f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. 5107; 38 C.F.R. 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Service connection for an acquired psychiatric disorder, to include PTSD and GAD The Veteran claims that he has PTSD that was caused by the hazards of service on a flight deck. Specifically, in March 2008 the Veteran submitted a statement relating an incident in which he had to clean up the body of another soldier who was killed by an aircraft on the flight deck. In another March 2008 statement, the Veteran related an incident in which he saw a fellow servicemember’s finger cut off by a propeller. At the Board hearing, the Veteran also described working around aircraft taking off with bombs and napalm. The Veteran was afforded a VA examination of his acquired psychiatric disorders in December 2008, at which time he was diagnosed with GAD, but not PTSD. See VA examination report at page 4 (stating that the Veteran was denying PTSD symptoms, but indicated that service gave him the “jitters”). No medical opinion was obtained at that time. The Veteran testified at the Board hearing that his symptoms began either during or immediately after service. In the first months after service, the Veteran sought treatment. He reported that he still experiences anxiety and nightmares. Similarly, in a February 2018 statement, the Veteran’s spouse noted that the Veteran was “really nervous” when he got home after Vietnam. The palms of his hands were always sweaty. He twitched and had bad dreams as well. In October 2010, the Veteran’s VA doctor submitted a statement regarding the Veteran’s GAD. She noted that she had been treating the Veteran since 2007 and that he had been seeking VA mental health treatment since 2003. During this time, the Veteran had always complained of severe anxiety that began after his return from military service. The Veteran had reported working long hours, being told that troops were dispensable but the ship was not, constant fear of being maimed, injured, or killed by an aircraft during service, and seeing several servicemembers killed or injured by planes. She noted that the Veteran’s anxiety is often displaced and that he has numerous physical complaints with no physiologic basis, which is not unusual in patients with severe anxiety. The VA doctor’s opinion indicates (1) that the Veteran has an anxiety disorder, diagnosed as GAD at the December 2008 VA examination, (2) at least 15 years of treatment for GAD, and (3) consistent attribution of his symptoms both in onset and cause to service. Both his Board hearing testimony and a lay statement from his spouse reveal an onset of symptoms during or immediately after service, which, the Board finds the Veteran and his spouse competent to report. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). From these lay statements, reports of treatment just after service, and a long history of more recent treatment, it is clear that an anxiety disorder, now diagnosed as GAD, has been present since service, and service connection for GAD is granted. However, service connection for PTSD is denied, as the Veteran does not have a current diagnosis. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Specifically, the December 2008 examiner noted that the Veteran endorsed anxiety-related symptoms rather than PTSD indicators. An April 2014 treatment record confirms that the Veteran has GAD rather than PTSD. REASONS FOR REMAND 1. Service connection for prostate cancer, to include as due to herbicide exposure, is remanded. The Board finds that the Veteran should be afforded a VA examination for his prostate cancer. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran currently has prostate cancer, or at least has had prostate cancer during the claims period. The Veteran is claiming that his prostate cancer is due to herbicide exposure. The Veteran is not eligible for the presumptions in 38 C.F.R. § 3.309(e), as he did not serve in or along the inland waterways of the Republic of Vietnam. Nonetheless, service connection is still available on a non-presumptive basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Specifically, the Veteran claims he was exposed to Agent Orange while on the flight deck. He was in direct contact with aircraft flying over the Republic of Vietnam. In fact, he would physically touch the aircraft in order to fulfill his duties. The Veteran’s testimony presents an indication that his exposure to aircraft may have exposed him to a tactical herbicide or other substance that is related to his prostate cancer. As the Veteran has not been afforded a VA examination of his prostate cancer, one should be conducted on remand. A medical opinion should also be obtained. McLendon, supra. 2. Compensation pursuant to 38 U.S.C. § 1151 for chills, fever, and bloody stool as a result of a prostate biopsy is remanded. The Veteran underwent a VA prostate biopsy in December 2007. He developed an infection in the days after the biopsy. In June 2009, a VA medical opinion was obtained which states that VA personnel were “not careless or negligent. Lack of proper skill, error in judgment or similar fault were not committed. This Veteran had a known complication of needle prostate biopsy.” No VA examination was conducted, and this opinion neither identifies the additional disability or provide a rationale for the conclusion reached. As a result, an addendum opinion will be requested on remand. The matter is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the etiology of his prostate cancer. Thereafter, the examiner should opine as to whether: The Veteran’s prostate cancer is at least as likely as not (50 percent or greater probability) related to service, to include exposure to tactical herbicides, such as Agent Orange. A complete rationale should be provided for any opinion rendered. Please note that the Veteran served on the flight deck and was in close and regular contact with aircraft flying over the Republic of Vietnam. He did not serve incountry or on inland waterways of Vietnam. 2. Obtain an addendum opinion regarding the Veteran’s complications of his December 2007 prostate biopsy, claimed as an infection with chills, fever, and bloody stool. Specifically, the examiner should (A) Identify any residuals of infection existing during the claims period, which began in March 2009, that are the result of the December 2007 biopsy. (B) For all identified residuals, determine whether the additional disability is at least as likely as not (50 percent or greater probability) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Did VA exercise the degree of care that would be expected of a reasonable health care provider in providing the medical or surgical treatment? (C) If the examiner determines that any such disability was actually caused by the December 2007 biopsy but that it was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, then determine whether the residual(s) is (are) at least as likely as not (50 percent or greater probability) due to an event not reasonably foreseeable. (CONTINUED ON NEXT PAGE) A complete rationale should be provided for any opinion rendered. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George