Citation Nr: 18149389 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-38 702A DATE: November 9, 2018 ORDER Entitlement to service connection for acquired psychiatric disorder, diagnosed as depressive disorder, is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to lumbar spine disability, to include scoliosis, is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s depressive disorder is related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from November 1968 to September 1971. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends that he has PTSD as a result of an in-service injury when he was hit on the head during rocket fire in Vietnam and was knocked to the ground. While the Veteran’s claim for service connection has been for PTSD, he is also diagnosed with depressive disorder. As noted in the Veteran’s December 2012 notice of disagreement, in Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009), the Court of Appeals for Veterans’ Claims (the Court) held that a claim is not necessarily limited in scope to a single or particular diagnosis, and should be construed based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim. Thus, the claim for service connection for acquired psychiatric disorder to include PTSD has been broadened to include the depressive disorder with which the Veteran has been diagnosed. As previously noted, the Veteran was diagnosed with depressive disorder during a March 2012 VA examination. The examiner noted that he relives certain aspects of his Vietnam service. Similarly, in a February 2011 medical note, the Veteran reported experiencing depression for decades. In a November 2012 statement, the Veteran also noted experiencing severe feelings of anxiety, panic attacks and flashbacks. Thus, the current disability requirement is established. Unfortunately, the Veteran’s service treatment records could not be added to the claims file. In such circumstances, the Court has found that credible statements from the Veteran can support evidence of an injury in service. Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). Here, the Veteran served for a year in Vietnam as an artillery surveyor. He described in a November 2012 letter that while on his tour of duty in Vietnam, on his way to his assigned outpost for guard duty, he was hit in the head and knocked to the ground by rocket fire. A September 2015 statement from his wife described the same event and added that he had to be taken to receive medical treatment. Finally, during the Veteran’s March 2012 VA examination, it was noted that he also took on small arms fire and lost friends in combat. The consistency among the medical and lay evidence throughout the record regarding this in-service injury lends credibility to the Veteran’s description of the stated injury. The Veteran is also competent to describe an in-service injury that he suffered. Moreover, the injury is consistent with the circumstances of the Veteran’s service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). As such, the in-service injury element of the claim has been established. Regarding nexus, the March 2012 VA examiner concluded his examination by stating that there is no evidence of pre- or post- service trauma that would better explain the Veteran’s current symptomatology, nor any evidence of depression prior to service. Thus, the examiner opined, it is at least as likely as not that the Veteran’s depressive disorder is related to his experiences in service as an artillery surveyor taking on small arms fire. Additionally, the claims file also contains lay evidence weighing in favor of service connection. In the Veteran’s wife’s September 2015 statement, she indicated that the Veteran still gets upset when discussing his in-service injury to this day. The Veteran himself noted in his November 2012 statement that since his in-service injury, he has experienced severe feelings of anxiety (including panic attacks) when he hears sudden noises or is in loud or crowded places, is afraid that his life will end prematurely, has difficulty reliving his time in Vietnam, and is now prone to pessimism, irritability and depression. This lay evidence is consistent with the medical evidence of record. Accordingly, the above evidence reflects that there is a probative medical opinion and lay evidence that weigh in favor of service connection for the Veteran’s depressive disorder and no evidence against. The preponderance of the evidence is therefore in support of the claim for entitlement to service connection for a psychiatric disorder diagnosed as depressive disorder. The Board notes that, although the PTSD regulation provides for a relaxed evidentiary standard with regard to lay evidence relating to fear of hostile military or terrorist activity, this does not preclude a finding of nexus between a current psychiatric disorder other than PTSD and events in service that would otherwise constitute fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3). As there is no evidence that the symptoms of depressive disorder can be distinguished from the symptoms of PTSD, discussion of entitlement to service connection for PTSD is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). REASONS FOR REMAND After review of the evidence of record, the Board finds that a remand is necessary for further development before the remaining claim can be decided. 1. Entitlement to service connection for hypertension is remanded. The Veteran is claiming service connection for hypertension. The Board notes that the Veteran was not afforded a VA examination or medical opinion with regard to this claim. VA is obliged to provide an examination or obtain a medical opinion in a claim when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a current disability, the record indicates that the disability or persistent or recurrent symptoms of disability may be associated with active service, and the record does not contain sufficient information to decide the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. pp. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran’s reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The Veteran was diagnosed with hypertension in an April 2009 medical note, and the medical evidence of record demonstrates that the Veteran has had a history of hypertension. However, hypertension is not noted on the Veteran’s entrance examination. Taken together, along with the lack of service treatment records, the evidence meets the low bar set by McLendon and the Board finds that a remand for a VA examination and opinion to address the nature and etiology of the Veteran’s hypertension is warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 81. In addition, the Veteran served in Vietnam and is thus presumed to have been exposed ot Agent Orange. The Court has held in multiple memorandum decisions that VA’s acknowledgment in the Federal Register that there is “limited or suggestive evidence,” see 79 Fed. Reg. 20308, 20310 (Apr. 11, 2014), of an association between Agent Orange exposure and hypertension was relevant to the question of whether a VA exam was warranted in connection with a claim for service connection for this disability and the failure to discuss the Federal Register NAS findings rendered the Board’s reasons or bases inadequate, warranting vacatur and remand. See Clark v. Shinseki, No. 12-2667, 2013 WL 6729512 (Vet. App. Dec. 20, 2013); Rodela v. Shinseki, No. 12-2894, 2013 WL 6184952 (Vet. App. Nov. 27, 2013); King v. Shinseki, No. 12–2893, 2013 WL 5428781 (Vet. App. Sept. 30, 2013); Allsopp v. Shinseki, No. 12–1847 (Vet. App. Aug. 27, 2013). This question should be addressed by the VA examiner. 2. Entitlement to lumbar spine disability, diagnosed as scoliosis, is remanded. On the Veteran’s November 1968 Army entrance examination, “lumbar scoliosis” was noted. As such, the presumption of soundness does not apply and the service connection turns on whether the preexisting disorder was aggravated by service. The Veteran was diagnosed with pre-service dorsal lumbar scoliosis in a May 2011 VA examination. The VA examiner’s medical opinion, which stipulated “not related military disability or worsening of scoliosis,” did not have an accompanying rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Additionally, there is no indication that the VA examiner took the Veteran’s statements into consideration when formulating his opinion. As such, the claim must be remanded for a new examination and medical opinion before it can be adjudicated to determine whether the Veteran’s diagnosed scoliosis worsened in service, and if so whether it was clearly and unmistakably a result of the disability’s natural progression. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his current hypertension. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. All necessary tests and studies should be conducted, and the examiner should review the results of any testing and include them in the report. The examiner should first indicate all current diagnoses. Then, the examiner should offer an opinion addressing whether it is at least as likely as not (50 percent probability or more) that any hypertension is related to service, to include his presumed Agent Orange exposure. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his diagnosed lumbar scoliosis. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. All necessary tests and studies should be conducted, and the examiner should review the results of any testing and include them in the report. The examiner should first indicate all current diagnoses. Then, the examiner should indicate whether there was in increase in the severity of the lumbar scoliosis disability during service. If there was an increase, the examiner should indicate whether there is clear and unmistakable evidence that the increase was due to the natural progress of the disease. As to any diagnosis other than lumbar scoliosis, the examiner should indicate whether such disability is related to the Veteran’s service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel