Citation Nr: 18152854 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-30 578 DATE: November 26, 2018 ORDER Entitlement to service connection for an acquired psychiatric disability to include major depressive disorder (MDD) and posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for microscopic hematuria is remanded. Entitlement to service connection actinic keratosis to include as secondary to certain herbicide exposure. is remanded. FINDINGS OF FACT 1. It is at least as likely as not that his acquired psychiatric disability to include MDD and PTSD is related to his active service. 2. It is at least as likely as not that the Veteran’s hypertension is related to his exposure to certain herbicides. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability to include MDD and PTSD disorder have been met. 38 U.S.C. § 1101, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. § 1101, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1969 to February 1973 to include combat service in Vietnam. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for psychiatric disorders encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has redefined the Veteran’s psychiatric appeal, as is listed on the title page of this decision. The Board notes that there is no dispute that the Veteran has a current diagnosis of MDD as noted in an April 2015 VA examination. Nor, is there a dispute that the Veteran had combat experience in service as noted in the June 2016 RO rating decision the Veteran had combat experience as he was in receipt of a Navy Commendation with Combat “V” designation. Thus, the only remaining issue is on the matter of nexus between the Veteran’s combat experience and his later diagnosis of MDD. On this matter, the Board finds that the April 2015 VA examiner’s remarks are probative. The examiner wrote that “the Veteran’s mental symptoms began in 1971 as a result of the Veteran attempting to escape his experience during the Vietnam war.” The Board recognizes that the examiner went on to determine that the Veteran did not have a diagnosis of PTSD, but based this opinion on the fact that the Veteran could not remember his experiences in Vietnam. Thus, he lent support to his subsequent finding that the Veteran’s MDD and symptoms of memory loss surrounding his time in Vietnam is directly caused by his experiences in Vietnam. In sum, the VA examiner has provided an opinion that the Veteran’s MDD and memory loss is result of his effort to escape his experiences in Vietnam. Considering the foregoing, the Board finds that all elements of service connection are met and service connection for an acquired psychiatric disability to include MDD is granted. 2. Entitlement to service connection for hypertension to include as secondary to exposure to certain herbicides. At the outset, the Board finds that there is no dispute that the Veteran has a current diagnosis of hypertension as noted most recently in his July 2018 VA treatment note. Additionally, as the Veteran has confirmed service in Vietnam as noted on the Veteran’s DD-214 that he served from October 1970 to April 1971 in the Republic Vietnam and presumed exposure to herbicides. Thus, the only remaining issue is on the matter of nexus. Turning to the issue of nexus, the Board notes that the Veteran has received a positive nexus statement from his treating physician in June 2018 wherein the physician wrote that it was more likely than not that his hypertension was caused by his exposure to “Agent Orange.” Further, the Board notes that the National Academy of Sciences (NAS) Institute of Medicine ‘s Veterans and Agent Orange: Update 2010 (2010 Update) concluded that there is “limited or suggestive” evidence of an association between exposure to Agent Orange and hypertension. See Nat’l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011) at 694. The Secretary discussed the 2006, 2008, and 2010 Updates-which contain the same analysis with respect to hypertension-in the Federal Register. See e.g. 77 Fed. Reg. 47,924 -01 (Aug. 10, 2012) (noting “[i]n Veterans and Agent Orange: Update 2006... and Update 2008, NAS elevated hypertension to the ‘Limited or Suggestive Evidence’ category”); 75 Fed. Reg. 32,540, 32,549 (June 8, 2010) (“In Update 2006, NAS concluded that there was ‘limited or suggestive evidence of an association between exposure to the compounds of interest and hypertension.’“); 75 Fed. Reg. 81,332, 81,333 (NAS, in 2008, categorized certain health outcomes, including hypertension, to have “‘limited or suggestive evidence of an association.” This category is defined to mean that evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.”). Considering the foregoing, the Board finds that all the elements of service connection for are met, and service connection for hypertension is warranted. REASONS FOR REMAND Entitlement to service connection for microscopic hematuria and actinic keratosis to include as secondary to certain herbicide exposure, is remanded Unfortunately, the Board has observed that additional development is required before adjudication can proceed with the above issues. In particular, the Veteran was not provided a VA examination to discern if there was a relationship between these disabilities and his exposure to certain herbicides. While there is evidence that the Veteran currently has a diagnosis of actinic keratosis and microscopic hematuria April 2015 VA treatment note and it is presumed that the Veteran was exposed to certain herbicides (i.e. Agent Orange) because of the nature of his active service; however, there is no evidence that the VA has taken the additional step to investigate the Veteran’s contention that these disabilities are related to his Agent Orange. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. Regardless of the Veteran’s response, VA treatment records should be collected from Eastern Oklahoma VA Health Care System in Muskogee, Oklahoma and all associated outpatient center and clinics. In particular, the AOJ should retrieve VA treatment records from July 2018 to present should be collected. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Schedule the Veteran for an appropriate VA examination(s) with an appropriate VA examiner(s) to determine the etiology of the Veteran’s microscopic hematuria and actinic keratosis. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. After considering the pertinent information in the record in its entirety, the VA examiner should opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that his hypertension was incurred or aggravated by his active duty to include his Agent Orange exposure OR whether it is at least as likely as not caused by or aggravated by his diabetes. (A). After considering the pertinent information in the record in its entirety, the VA examiner should identify any microscopic hematuria. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any microscopic hematuria identified was incurred or aggravated by his active duty to include his presumed exposure to Agent Orange or otherwise etiologically associated with his active service. (B). After considering the pertinent information in the record in its entirety, the VA examiner should identify any skin disabilities to include actinic keratosis. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any skin disability, was incurred or aggravated by his active duty to include his presumed agent orange exposure OR otherwise etiologically associated with his active service. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta, Counsel