Citation Nr: 18156572 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-19 613 DATE: December 10, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and obsessive-compulsive disorder (OCD), is granted. REMANDED Entitlement to service connection for epilepsy claimed as a nervous system injury is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s MDD and OCD were aggravated due to long-term exposure to jet fuels and solvents during military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include MDD and OCD, have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Air Force from December 1972 to December 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in August 2018. A transcript of the proceeding has been associated with the claims file. While the Veteran has expressly filed a claim of service connection for depression, in light of Clemons v. Shinkseki, 23 Vet. App. 1 (2009), the Board finds that it is appropriate to characterize the claim broadly as one of entitlement to service connection for an acquired psychiatric disorder, to include MDD and OCD. Entitlement to service connection for an acquired psychiatric disorder, to include MDD and OCD The Veteran contends that his MDD and OCD was aggravated by exposure to chemicals, specifically jet fuel and methyl ethyl ketone, while serving in the Air Force. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who served on active duty is presumed to have been in sound condition when “examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment.” 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Pursuant to 38 C.F.R. § 3.304 (b), only those conditions recorded in examination reports can be considered as “noted,” and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Here, the Veteran’s October 1972 enlistment examination clearly noted the presence of mild depression and mild nervousness. Since the claimed acquired psychiatric disorders existed prior to his entry into service, the presumption of soundness does not attach and service connection may only be granted on the basis of aggravation in service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing condition is presumed to have been aggravated in service where there is an increase in disability during such service, unless there is a specific finding the increase in disability was due to the natural progression of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Initially, the burden is on the Veteran to establish an increase in severity in service. Wagner, 370 F. 3d at 1096. If the Veteran is able to demonstrate an increase in severity in service, then the presumption of aggravation attaches and the burden shifts to the VA to rebut the presumption by clear and unmistakable evidence that the worsening of the pre-existing condition was due to its natural progression. Id.; see also Horn v. Shinseki, 25 Vet. App. 231, 235, 238-39 (2012). Medical records dated September 2018 show that the Veteran is currently diagnosed with both MDD, recurrent, severe and OCD. Therefore, the Board finds that the Veteran has a current disability. The Veteran’s military personnel records show that the Veteran’s military occupational specialty (MOS) was an aircraft fuel system mechanic. Thus, the Veteran’s contentions that he was exposed to jet fuel and other hazardous chemicals while in service are competent and credible. Accordingly, the Board finds that there was an in-service aggravating factor. The remaining inquiry is whether there is a causal connection between the Veteran’s pre-existing MDD and OCD and the in-service exposure to chemicals. During the Veteran’s August 2018 Board hearing, he testified that while in service he kept his mental issues silent as he feared retribution. He added that he became depressed while working with jet fuel tanks and he stayed in bed all day. Also, service treatment records show that the Veteran was prescribed a medication containing phenobarbital while in service, as he tested positive for the substance on a urinalysis screen. According to the Veteran’s representative, phenobarbital is prescribed to help suppress mental disorders. See Hearing Transcript dated August 2018, page 4. Buddy statements provided by the Veteran’s relatives detail how the Veteran had changed since discharging from the military. For example, an August 2018 letter provided by the Veteran’s sibling states that before entering service, the Veteran was happy, healthy, and full of life. When he returned from service, he was a different person who struggled to make it day to day, physically, mentally, and financially. See August 2018 correspondence from E.G. Medical records provided by the Veteran show that Veteran was first treated for a psychiatric disorder is January 1985. The Veteran has continued with mental health treatment since that time and is prescribed anti-depressants. Dr. L.F. provided a positive nexus opinion relating all of the Veteran’s medical problems to chemical exposure during his military years; however, a rationale was not provided to support the opinion. Another positive opinion was provided by Dr. E.M. in September 2018. After a thorough review of the Veteran’s medical records, the physician opined that the Veteran’s current condition is a result of long-term exposure to jet fuels and solvents that aggravated a pre-existing condition that was considered to be mild at the time of his military entrance exam. The physician added that research studies suggest that long-term exposure to hazardous chemicals can cause depressive and OCD-related disorders; therefore, it follows that the same exposure could aggravate and worsen these conditions that were pre-existing. Dr. E.M. strengthens his opinion when adding that the Veteran’s exposure to toxic chemicals has resulted in irreversible cognitive, emotional and behavioral impairment. The Board finds his opinion highly probative and persuasive as Dr. E.M. cited extensive research detailing the harmful effects of chemicals and solvents and rested his opinion on research and the Veteran’s medical history. In sum, the evidence of record shows that the Veteran’s pre-existing MDD and OCD were aggravated in service. The Veteran was exposed to jet fuels and other chemicals while working as an aircraft system fuel mechanic. The Veteran testified that while in service, his feelings of depression continued. His relatives provided statements describing how the Veteran had changed after discharging from the Air Force. Most importantly, Dr. E.M. provided a positive and persuasive opinion concluding that the Veteran’s long-term exposure to chemicals in service aggravated his pre-existing psychiatric disorders resulting in irreversible cognitive, emotional, and behavioral impairment. The Board finds that the presumption of aggravation does attach because the evidence most favorable to the Veteran establishes that the Veteran’s MDD and OCD increased in severity in service. Additionally, there is no clear and unmistakable evidence that the worsening of the MDD and OCD was due to natural progression. See 38 U.S.C. §§ 1153, 5107 (b); 38 C.F.R. §§ 3.102, 3.306. Accordingly, service connection for an acquired psychiatric disorder to include MDD and OCD is granted. REASONS FOR REMAND 1. Entitlement to service connection for epilepsy claimed as a nervous system injury The Veteran contends that his nervous system injury is due to long-term exposure to chemicals while serving with the Air Force. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c) (4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the below noted reasons, the Board finds that a VA examination is necessary. Medical records show that the Veteran was diagnosed with right temporal lobe epilepsy in January 1985. At the time, the etiology of his epilepsy was unexplained. The Veteran contends that the epilepsy is due to chemical exposure related to his MOS in the Air Force. The Veteran provided research articles to support his position about the effects of jet fuel exposure. The Veteran has not been afforded a VA examination to determine the nature and etiology of his epilepsy. Therefore, on remand, an opinion should be obtained as to whether the Veteran’s epilepsy is due to chemical exposure while in service. 2. Entitlement to a total disability based on individual unemployability (TDIU) During the August 2018 Board hearing, the Veteran’s representative asked for the Veteran to be considered for a TDIU. Evidence in the record shows that the Veteran is receiving Social Security disability and has been unemployed since approximately1985. As the issue of a TDIU is inextricably intertwined to the service connection issues decided above, a remand to the RO for further development is necessary. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain the Veteran’s Social Security disability records from Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. After the foregoing development has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any nervous system injuries, including the diagnosis of right temporal lobe epilepsy. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to chemicals including jet fuel and methyl ethyl ketone while serving in the Air Force. 3. The Veteran raised the issue of entitlement to a TDIU due to service-connected disabilities at the August 2018 Board Hearing. The AOJ should develop the issue.   4. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel