Citation Nr: 18147722 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-38 504 DATE: November 7, 2018 ORDER Service connection for an acquired psychiatric disorder, characterized as an anxiety disorder, is granted. REMANDED Service connection for a right hip disorder, status post right hip replacement, is remanded. Service connection for a back disorder is remanded. Service connection for cirrhosis of the liver is remanded. Service connection for chronic hepatitis C is remanded. Service connection for migraines is remanded. FINDING OF FACT The Veteran’s anxiety disorder is attributable to service. CONCLUSION OF LAW The criteria for service connection for an anxiety disorder have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to April 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also 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). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder. The Veteran contends his anxiety disorder is related to service. The Board concludes that while the Veteran’s anxiety disorder was not diagnosed during service, there is some competent and credible evidence linking the Veteran’s current diagnosis of anxiety to his military service. The Veteran has a current diagnosis of anxiety disorder not otherwise specified (NOS), which was first diagnosed in July 2011. In July 2016, the Veteran underwent a private examination for an acquired psychiatric condition and was diagnosed with anxiety disorder NOS that satisfied the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5). The examiner opined that the Veteran’s anxiety disorder began in service and has continued uninterrupted to the present. Her rationale was that the Veteran’s sisters noted a drastic change when the Veteran returned from service. In a September 2015 letter, one sister noted that the Veteran entered service as a very social and happy person and returned, months later, angry, irritable, and depressed. Another sister noted in a May 2016 letter that the Veteran returned from service depressed and distant. The Board notes that the Veteran is competent to report that he experienced symptoms of depressed mood, anxiety, and anger during that period, but did not seek treatment because he became reclusive and did not trust others. His report is credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran’s anxiety disorder. In affording the Veteran the benefit-of-the-doubt, as required by VA law and regulations, there is evidence that tends to corroborate the existence and continuance of an anxiety disorder since service. The Board is persuaded by the July 2016 psychologist’s conclusions that the Veteran and his sisters were credible in their reports of anxiety since service and is mindful of the examiner’s expertise as a medical professional. Thus, the Board finds that service connection for an acquired psychiatric disorder characterized as an anxiety disorder is warranted. REASONS FOR REMAND 2. Entitlement to service connection for right hip and back disorders is remanded. The Veteran contends that his current back and hip pain is related to running, jumping, and carrying heavy packs during service. Service treatment records (STRs) are silent of any back or hip injury and the Veteran denied having recurrent back pain during his March 1973 separation examination. Post-service in 1998, the Veteran underwent a right hip replacement. In November 2011, the Veteran was diagnosed with right hip pain. In February 2000, the Veteran first reported lower back pain due to a work injury as a letter carrier. In April 2003, the Veteran reported lower back pain due to a fall at work and that he had a pending lawsuit against his employer. In December 2014, the Veteran reported right hip pain and lower back pain, which was relieved by medication. A November 2010 treatment note revealed that the Veteran reported a history of low back pain since 1992 when he fell at work. He also attributed back and leg pain to his military service when he jumped out of planes (although military personnel records do not show that the Veteran attended airborne training or was a paratrooper during his 6 months of active duty service). The Veteran noted that he had a lumbar laminectomy in 2003 and a right total hip replacement in 1998. The Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board cannot make a fully-informed decision on the issue of a back or hip condition because no VA examiner has opined whether the Veteran’s back pain or hip pain was caused by active duty service.   3. Entitlement to service connection for chronic hepatitis C and cirrhosis of the liver is remanded. In an August 2011 statement, the Veteran contended that he contracted hepatitis C by receiving shots during induction from a cross-contaminated needle that was used by many other Marines. He stated that cirrhosis of the liver is secondary to his hepatitis C. STRs showed that the Veteran had numerous immunizations during his active duty service. In March 1995, the Veteran was diagnosed with hepatitis C. He reported that he used intravenous drugs and that he shared needles with others. In November 2009, the Veteran was diagnosed with liver cirrhosis secondary to hepatitis C. The Veteran denied having blood transfusions, yet attributed his diagnoses sharing needles for intravenous drugs. In July 2011, the Veteran reported being hospitalized for substance abuse in 1984. He noted that he started using intravenous drugs, such as cocaine and heroin, in 1967 and continued use until 1989. In December 2011, an imaging study showed that the Veteran’s liver was homogenous without evidence of cirrhosis. The Board cannot make a fully-informed decision on the issue of a hepatitis C or liver cirrhosis because no VA examiner has opined whether the conditions are attributable to the Veteran’s in-service immunizations. 4. Entitlement to service connection for migraines is remanded. The Veteran contends that exposure to the gas chamber during basic training caused his headaches, which have continued since service. STRs are silent of any neurological injury or headaches and the Veteran denied having a neurologic condition during his March 1973 separation examination. In February 2000, the Veteran stated that he had migraine headaches since childhood. In November 2009, the Veteran reported to the emergency room for relief from his migraine. In October 2015, Dr. H.S. found that the Veteran had nausea, sensitivity to sound and light, blurred vision, and reduced power of concentration during a migraine attack. Dr. H.S. opined that the Veteran’s headaches are caused by the Veteran’s mental health conditions and that the migraines caused mental health problems as both conditions started around the same time; however, the physician did not address the Veteran’s report that his migraines preexisted his active duty service. As stated above, the Veteran is service-connected for an anxiety disorder; therefore, an opinion is needed to address whether there is any relationship between the Veteran’s migraines and service or a service-connected disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s favorable Social Security Administration (SSA) decision and supporting evidence including all associated relevant lay and medical documents. 2. After securing the appropriate medical release, obtain and associate with the record copies of all clinical records, which are not already in the record, of the Veteran’s lumbar laminectomy in 2003 and a right total hip replacement in 1998. 3. Schedule the Veteran for a VA examination to determine the etiology of the Veteran’s back and right hip disabilities. The record must be made available to the examiner and the examiner should indicate in his/her report whether the record was reviewed. Any indicated tests should be accomplished. Based on a review of the record and any examination findings, the examiner should provide an opinion as to whether it is at least as likely as not that a current back and/or right hip disability is etiologically related to an in-service injury, event, or disease, including the Veteran’s reported in-service back and hip pain. The examiner should address the multiple reports of work injuries that resulted in lower back and right hip pain, as well as provide a complete rationale for all opinions expressed and conclusions reached. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his hepatitis C and cirrhosis of the liver. The examiner should review the record prior to examination. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that his hepatitis C had its clinical onset during service or is related to any in-service disease, event, or injury, including his in-service immunizations. If the examiner opines the Veteran’s hepatitis C is related to his active service, the examiner must opine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s cirrhosis of the liver is proximately due to, or alternatively, aggravated (chronically worsened) by his hepatitis C. In answering these questions, the examiner should consider and weigh any hepatitis C risk factors shown by the record, including the Veteran’s history of drug use. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 5. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his migraines. The examiner should review the record prior to examination. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran’s migraines had their clinical onset during service or are otherwise related to any in-service disease, event, or injury, including due to being exposed to a gas chamber. The examiner should address the Veteran’s 2000 assertion that he had a history of migraines prior to service; the examiner should indicate whether there is clear and unmistakable evidence that migraines preexisted service and if so, also clear and unmistakable evidence that migraines were not aggravated in service. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran’s migraines are proximately due to, or alternatively, aggravated by (permanently worsened beyond that natural progression of the disorder), the Veteran’s service-connected anxiety disorder. The examiner should address the October 2015 opinion of Dr. H.S. and provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel