Citation Nr: 18148209 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-33 165 DATE: November 7, 2018 ORDER Service connection for a psychiatric disorder, diagnosed depression, not otherwise specified, and anxiety, is granted. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a thyroid disorder is remanded. FINDING OF FACT A psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety, had its onset in service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from July 1973 to October 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, that denied service connection for psychiatric disorder, to include an anxiety disorder, depression, and posttraumatic stress disorder (PTSD) (listed as mild depression and an anxiety disorder, to include anger). As there are multiple other psychiatric diagnoses of record, the Board finds that it is more appropriate to characterize the claim broadly as one of entitlement to service connection for a psychiatric disorder, to include an anxiety disorder, depression, and PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). By this decision, the RO also denied service connection for diabetes mellitus; hypertension; and for a thyroid disorder (listed as a thyroid condition). A January 2018 RO decision continued the denial of service connection for a psychiatric disorder, to include an anxiety disorder, depression, and PTSD (listed as PTSD). In February 2018, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. Psychiatric disorder, to include an Anxiety Disorder, Depression, and PTSD 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2016). Further, 38 C.F.R. § 3.304(f) provides that if a stressor claimed by a Veteran is related to the Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. In its June 2009 report, “Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects”, the National Academy of Sciences National Research Council provided an assessment of the potential association between certain diseases and exposure to the chemical contaminants. Fifteen disease conditions have been identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. See 38 U.S.C. § 1710 (e); 38 C.F.R. § 17.400 (2017). Additionally, effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran contends that he had a psychiatric disorder, to include an anxiety disorder, depression, and PTSD, that is related to service, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina. He specifically maintains that he became depressed during his period of service. The Veteran reports that he went absent without leave (AWOL) because he was depressed. The Veteran essentially asserts that he suffered from psychiatric problems during and since his period of service. The Veteran served on active duty in the Marine Corps from July 1973 to October 1975. His service personnel records do not specifically show that he was awarded decorations evidencing combat. Such records indicate that the Veteran was involved in disciplinary actions, including a Court Martial for being AWOL, and that he was given an administrative discharge under honorable conditions. The Veteran’s service personnel records indicate that he served at Camp Lejeune, North Carolina, from March 1975 to October 1975, which is well over thirty days. The Veteran’s service treatment records do not show treatment for any psychiatric problems. Post-service private and VA treatment records, including a VA examiner statement, show treatment for variously diagnosed psychiatric disorders, including anxiety; depression; depression, not otherwise specified; a major depressive disorder; rule out PTSD; and PTSD. A June 2013 statement from a VA examiner includes a notation that the Veteran’s claims file was reviewed. The examiner reviewed the Veteran’s medical history in some detail. The diagnoses were depression, not otherwise specified, and anxiety. The examiner reported that the Veteran’s cumulative exposure to toxins was well below the levels observed in human and animal studies to cause neuropsychiatric disorders because of the relative short time frame that he was stationed at Camp Lejeune in North Carolina. It was noted that studies suggested that years of exposure were necessary in order to have a possible association with the type of psychiatric disorders claimed by the Veteran. The examiner indicated that the Veteran was only stationed at Camp Lejeune in North Carolina for 206 days. The examiner maintained that the diagnosed depression, not otherwise specified, and anxiety, were not caused by or a result of the Veteran’s exposure to Camp Lejeune Contaminated Water (CLCW). The examiner also reported that the Veteran’s service treatment records failed to identify a history of depression or nervous trouble of any sort. The examiner referred to a medical treatise (Behavioral Effects Related to Exposure to Organic Solvents). The examiner stated that the literature sited the possibility of neurobehavioral effects from longer term exposure to organic solvents than the Veteran experienced during his stay at Camp Lejeune in North Carolina. The examiner indicated that there was widespread agreement that chronic effects were seen primarily after long-term, high-level exposure, with objective testing showing decrements in concentrating ability, visuospatial skills, and fine motor abnormalities generally ten years after occupational exposure. It was noted that such long-term exposures could also be associated with the development of personality changes. The examiner stated that earlier mild disease might be seen after as little as three years. The examiner reported that the overlaps between mood and personality changes and other syndromes, such as anxiety, PTSD, and other conditions often made a that diagnosis difficult. The examiner stated that, nevertheless, the disease was never progressive and there were no known cases of onset after cessation of exposure. It was noted that a sustained change in mood and/or personality, with reduced motivation, poor impulse control, often anxiety, and irritability, was seen after longer term exposure. A March 2018 statement from the Veteran’s spouse indicates that she had been married to the Veteran for over forty-two years. She stated that she met the Veteran through mutual friends when they were in their teens, and that they were always busy with hiking, swimming, playing cards or chess, and visiting with friends. She stated that, at that time, the Veteran’s mood was always considerate and easy going. The Veteran’s spouse indicated that the Veteran’s goal was to become a lifelong Marine, and that both is uncle and great uncle were Marines. She noted that the Veteran enlisted in the Marine Corps right out of high school, and that he enjoyed his overseas duty in Japan. She reported that the Veteran was then sent to Camp Lejeune in North Carolina and that they were married while he was at that base. The Veteran’s spouse indicated that after she had been married to the Veteran for a few months, she noticed that his cheery disposition had changed significantly since joining the Marine Corps. She stated that she noticed that his temper was short, that he was easily irritated, and that he was not the person she knew. She reported that the Veteran was sluggish and lethargic, and that he started to frequently take naps. The Veteran’s spouse related that their friends were put off by the Veteran’s actions and stopped coming around altogether because he would refuse to get out of bed. She maintained that over the years, the Veteran’s temper worsened and his mood would continually change. She stated that subsequent diagnoses of hypertension and diabetes mellitus did nothing to improve his outlook and mood. The Veteran’s spouse indicated that the Veteran was diagnosed with depression at approximately the age of 46, and that they finally had an explanation for why he had been struggling emotionally for so long. She reported that since the Veteran’s time in the Marine Corps, he had been unable to find and keep reliable employment. The Veteran’s spouse reported that because the Veteran went against the social norms of the Vietnam Era, and served his country, he would spend his life with depression, anxiety, and illnesses which continued to multiply. She indicated that the Veteran’s problems since his time in the Marine Corps had caused terrible effects on his whole family, and that he blamed himself for everything. The Board notes that the Veteran’s service treatment records do not specifically show treatment for a psychiatric disorder. The Board observes that his service personnel records do indicate that he was involved in disciplinary actions. The Veteran’s post-service private and VA treatment records indicate that he was treated for variously diagnosed psychiatric problems, including depression, not otherwise specified, and anxiety. Additionally, the Board notes that a VA examiner, pursuant to a June 2013 statement, following a review of the claims file, specifically indicated that the diagnosed depression, not otherwise specified, and anxiety, were not caused by or a result of the Veteran’s exposure to contaminated water at Camp Lejeune in North Carolina. The examiner reported that the Veteran’s cumulative exposure to toxins was well below the levels to cause neuropsychiatric disorders because of the relative short time frame that he was stationed at Camp Lejeune in North Carolina. The examiner further noted that the Veteran’s service treatment records failed to identify a history of depression or nervous trouble. The Board notes that the examiner did not specifically address the Veteran’s reports, and those of his spouse, of possible psychiatric problems during and since service. The Veteran is competent to report that he had psychiatric problems during service and since service. See Davidson, 581 F.3d at 1313. Therefore, the Board finds that the examiner’s opinions are not very probative in this matter. The Board observes that the medical evidence of record indicates that the Veteran currently has a psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety. Additionally, the Board observes that the Veteran is competent to report symptoms of his psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety, during service and since that time. Moreover, the Board finds that the Veteran’s reports of such symptoms are credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board also finds the reports by the Veteran’s spouse that he had possible psychiatric problems during and since service to also be credible. Resolving any doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise regarding whether the current psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety, commenced during his period of service. In light of the evidence of record, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety. The Board notes that there is no probative evidence of record relating a diagnosis of PTSD to the Veteran’s period of service. Accordingly, service connection for a psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety, is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; See also Clemons, 23 Vet. App. at 1. REASONS FOR REMAND The remaining issues on appeal are entitlement to service connection for diabetes mellitus; hypertension; and for a thyroid disorder. As discussed above, the Board has granted service connection for a psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety. The Veteran contends that he has diabetes mellitus; hypertension; and a thyroid disorder, that are all related to service, to include as due to exposure to contaminated water at Camp Lejeune, North Carolina. He also asserts that such disorders were caused by exposure to Agent Orange while serving in Okinawa, Japan. The Veteran is competent to report symptoms he thought were due to diabetes mellitus; hypertension; and/or thyroid problems, during service and since service. See Davidson, 581 F.3d at 1313. The Veteran served on active duty in the Marine Corps from July 1973 to October 1975. His service personnel records indicate that he served at Camp Lejeune, North Carolina, from March 1975 to October 1975, which is well over thirty days. The Veteran’s service treatment records do not specifically show treatment for diabetes mellitus; hypertension or elevated blood pressure readings; or for thyroid problems. Such records, however, do show treatment for headaches and lightheadedness, with the need to rule out diabetes mellitus. For example, a September 1975 treatment entry notes that Veteran’s complaints were varied, but that they were primarily headaches, lightheadedness usually during exercises, and a history of complete loss of consciousness. The impression was the need to rule out diabetes. An October 1975 treatment entry notes that the Veteran reported a family history of diabetes. The examiner indicated that fasting blood sugars and multiple urine tests were entirely within normal limits, without evidence of diabetes mellitus at that time. A subsequent October 1975 treatment entry notes that a urinalysis was essentially negative. An October 1975 objective separation examination report notes that the Veteran had history of diabetes mellitus in his family and that a glucose tolerance test was entirely negative. There were also notations that the Veteran’s urinalysis was negative for sugar, and that his endocrine system was normal. Post-service private and VA treatment records show treatment for diabetes mellitus; hypertension; hypothyroidism; and Hashimoto’s thyroiditis; The Board notes that the Veteran has not been afforded VA examinations as to his claims for service connection for diabetes mellitus; hypertension; and for a thyroid disorder. Therefore, the Board finds that the Veteran has not been afforded a VA examination, or examinations, with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims folder, as to his claims for service connection for diabetes mellitus; hypertension; and a thyroid disorder. Such an examination, or examinations, must be accomplished on remand. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for diabetes mellitus; hypertension; and for thyroid problems since June 2017. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptomatology regarding his claimed diabetes mellitus; hypertension; and thyroid disorder. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an appropriate VA examination(s) to determine the onset and etiology of his claimed diabetes mellitus; hypertension; and thyroid disorder. The entire claims file must be reviewed by the examiner. The examiner(s) must diagnose all current thyroid disorders, and specifically indicate if the Veteran has diagnosed diabetes mellitus and hypertension. Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner(s) must provide a medical opinion, with adequate rationale, as to whether it is as at least as likely as not that any currently diagnosed diabetes mellitus; hypertension; and thyroid disorders, are related to and/or had their onset during his period of service, to include his presumed in-service exposure to environmental toxins at Camp Lejeune, North Carolina. The examiner(s) must specifically acknowledge and discuss any reports by the Veteran of symptoms he thought were due to diabetes mellitus; hypertension; and thyroid problems, during service and since service. The examiner(s) must further opine as to whether the Veteran’s service-connected psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety, caused or aggravated any currently diagnosed diabetes mellitus; hypertension; and thyroid disorders. The term “aggravation” means a permanent increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation of any diagnosed diabetes mellitus; hypertension; and thyroid disorders, by the Veteran’s service-connected psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety, is found, the examiner(s) must attempt to establish a baseline level of severity of the diagnosed diabetes mellitus; hypertension; and thyroid disorders, prior to aggravation by the service-connected psychiatric disorder, diagnosed as depression, not otherwise specified, and anxiety. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. D. Regan, Counsel