Citation Nr: 18147706 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 15-23 029A DATE: November 5, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for ischemic heart disease (IHD), to include as due to herbicide agent exposure, is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a lower back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a skin disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a diagnosed acquired psychiatric disorder, to include PTSD. 2. The preponderance of the evidence is against a finding that the Veteran has a diagnosis of IHD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 2. The criteria for entitlement to service connection for IHD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1967 to October 1969, with confirmed service in the Republic of Vietnam (Vietnam) from March 1968 to March 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2014 and April 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. Jurisdiction has since been transferred to the RO in Jackson, Mississippi. The Veteran was scheduled for a videoconference Board hearing in October 2018. However, the Veteran did not appear for the hearing, and to date has not requested that the hearing be rescheduled. As such, the Veteran’s hearing request is withdrawn. See 38 C.F.R. § 20.704(d). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The laws and regulations pertaining to herbicide exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of several diseases and served on active duty in Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A disease associated with exposure to herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even if there is no evidence of such disease during the period of service. A veteran who, during active military, naval, or air service, served in Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicide agents if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). Thus, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Further, the Board notes that there are particular requirements for establishing service connection for PTSD that are separate from those for establishing service connection generally. See 38 C.F.R. § 3.304(f); Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires the following: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 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 a matter, VA shall resolve reasonable doubt in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Acquired Psychiatric Disorder The Veteran maintains that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD. He maintains that his mental health disorders were caused by his experiences in Vietnam. The Board notes that a review of his service treatment records reveals no reports of, or treatment for, any mental health disorders. The Veteran was provided a VA psychiatric examination in May 2014. He reported difficulty sleeping and nightmares with some intrusive thoughts. He denied any suicidal or homicidal ideations. He reported an excessive drinking habit that began in service. He also indicated that this is when he began smoking marijuana and using pain pills. Regarding an in-service stressor, the Veteran reported witnessing his friend get killed in a rocket attack in Vietnam. Based on the mental health examination, the VA psychologist found that while the Veteran exhibited some PTSD symptoms, his mental health symptomology was not severe enough to meet the PTSD criteria. The psychologist further indicated that the Veteran was psychologically well-adjusted, and did not have a mental health disorder of any type. In light of the forgoing, the Board finds that entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. The preponderance of the evidence of record does not establish that the Veteran has a current diagnosis of PTSD, or of any other acquired psychiatric disorder. The Board acknowledges the Veteran, who served as a combat engineer in Vietnam, likely experienced in-service stressors involving traumatic events; however, there is no medical evidence of record of a current diagnosis of PTSD, or of any other psychiatric disability. See 38 C.F.R. § 4.125(a). The Board acknowledges that the Veteran might sincerely believe that he has PTSD that is related to his active service and notes that lay persons are competent to provide opinions on some medical issues and of symptomology. However, in this case, the question of whether the Veteran has PTSD, or any psychiatric disability, that is related to his active service falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The intricacies in diagnosing psychiatric disabilities and opining regarding their etiology are issues that require the expertise of a medical professional. Therefore, the Veteran is not competent to provide an opinion on these issues. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Thus, entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. Ischemic Heart Disease The Veteran contends that entitlement to service connection for IHD is warranted because it was caused by exposure to herbicide agents while serving in Vietnam. A review of the Veteran’s service treatment records does not reflect any reports of, or treatment for, a heart disability. However, service records indicate that he served in Vietnam during the Vietnam era; therefore, herbicide agent exposure is presumed. See 38 C.F.R. § 3.307(a)(6)(iii). The Veteran was afforded an in-person IHD VA examination in May 2014. Upon examination and review of the Veteran’s claims file, the VA examining physician found that the Veteran did not have a diagnosis of IHD, or of coronary artery disease. The examiner indicated that the Veteran did have a diagnosis of hypertension for the past 15 years. The Board notes that it does not appear that the Veteran has filed a claim for service connection for hypertension. The Board further notes that nothing in this decision precludes the Veteran from filing a claim for entitlement to service connection for this disability. Also of record are VA treatment records. There is no indication of a diagnosis of IHD, or of any other heart disease, in these VA treatment records. In light of the foregoing, the Board finds that entitlement to service connection for IHD is not warranted. Although the Veteran is presumed to have been exposed to herbicide agents while serving in Vietnam, the most probative evidence of record does not substantiate the first element of entitlement to service connection, a current disability. The Board notes that the Veteran reported in his July 2015 VA Form 9 that he experiences shortness of breath, and knows his own body. Although the Veteran is competent to describe his symptoms, diagnosing cardiovascular diseases is complex and requires medical training or knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007). Thus, the Board finds that the Veteran’s statements are outweighed by the competent medical evidence of record. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for IHD is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran maintains that he is entitled to service connection for various musculoskeletal disabilities, to include neck, lumbar spine, and left knee, as well as a skin disability. For the reasons discussed below, the Board finds that a remand is warranted in order to afford the Veteran VA examinations for these disabilities. Musculoskeletal Disabilities The Veteran maintains that he is entitled to service connection for a neck, lumbar spine, and left knee disability. He reported that these injuries were caused by an injury he sustained while in active duty in Vietnam. He maintains that he was treated in-service for these injuries. The Veteran has not been provided a VA examination for any of these disabilities. The Board notes that upon review of the Veteran’s service treatment records, there is no indication of any reports of, or treatment for, any of these musculoskeletal disabilities. However, as the Veteran served as a combat engineer in Vietnam, his statements should be accepted as sufficient evidence of an in-service incurrence. See 38 U.S.C. § 1154(b). Finally, there is an indication in the Veteran’s VA out-patient treatment records from April 2016 of reports of left knee and lower back pain. Further, the Veteran reported popping in his neck. Accordingly, the Board finds that a VA examination is necessary taking the Veteran’s lay statements concerning his injuries into consideration. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Skin Disability Finally, the Veteran maintains that he is entitled to service connection for a skin disability. The Veteran reports experiencing white spots on his hands that comes and goes. He maintains that this skin disorder is due to herbicide agent exposure. As discussed above, herbicide agent exposure has been presumed due to the Veteran’s service in Vietnam. The Board notes that the Veteran has not been provided a VA examination for this disability. Due to the physically observable nature of certain skin conditions, such as lesions or rashes, the Veteran is competent to report such current symptomology. Thus, as the Veteran has not been provided a VA examination for his skin disability and because herbicide agent exposure has been conceded, the Board finds that a remand is warranted in order to provide the Veteran with a VA examination to determine the etiology of his currently reported skin disability. Accordingly, these matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Forward the Veteran’s electronic claims file to appropriate clinicians for examinations and opinions as to the nature and etiology of the Veteran’s neck, lumbar spine, left knee, and skin disabilities. Following the review of the claims file, the examiner should identify any currently diagnosed neck, lumbar spine, left knee, or skin disability, and provide opinions on the following: a) Regarding any diagnosed neck disability, whether it is at least as likely as not (a 50 percent probability or greater) that said disability was caused by the Veteran’s reported in-service injury. For purposes of this opinion, the examiner is to presume the events of the injury occurred as described by the Veteran. The examiner should address the likelihood that the injury such as described by the Veteran caused his current neck disorder (i.e., indicate whether the pathology/disease process associated with the Veteran's cervical spine is consistent with the mechanism of injury claimed by the Veteran). b) Regarding any diagnosed lumbar spine disability, whether it is at least as likely as not (a 50 percent probability or greater) that said disability was caused by the Veteran’s reported in-service injury. For purposes of this opinion, the examiner is to presume the events of the injury occurred as described by the Veteran. The examiner should address the likelihood that the injury such as described by the Veteran caused his current low back disorder (i.e., indicate whether the pathology/disease process associated with the Veteran's lumbar spine is consistent with the mechanism of injury claimed by the Veteran). c) Regarding any diagnosed left knee disability, whether it is at least as likely as not (a 50 percent probability or greater) that said disability was caused by the Veteran’s reported in-service injury. For purposes of this opinion, the examiner is to presume the events of the injury occurred as described by the Veteran. The examiner should address the likelihood that the injury such as described by the Veteran caused his current left knee disorder (i.e., indicate whether the pathology/disease process associated with the Veteran's left knee is consistent with the mechanism of injury claimed by the Veteran). d) Regarding any diagnosed skin disability, whether it is at least as likely as not (a 50 percent probability or greater) that said disability was caused by the Veteran’s presumed herbicide agent exposure or by any reported skin disability in service. A complete rationale for all opinions should be provided. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel