Citation Nr: 1807389 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-10 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for acne, to include as secondary to herbicide agent exposure. 2. Entitlement to service connection for coronary artery disease (CAD), to include as secondary to herbicide agent exposure. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for diffuse idiopathic skeletal hyperostosis (DISH), to include as secondary to herbicide agent exposure. 5. Entitlement to service connection for a right shoulder disability, to include as secondary to DISH. REPRESENTATION Veteran represented by: Gregory Keenum, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1962 to June 1966. During his period of service, the Veteran earned National Defense Service Medal, Vietnam Service Medal, and Air Force Good Conduct Medal. This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In July 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for acne, to include as secondary to herbicide agent exposure; entitlement to service connection for DISH, to include as secondary to herbicide agent exposure; and entitlement to service connection for a right shoulder disability, to include as secondary to DISH are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent evidence establishes a current diagnosis of CAD. 2. Resolving reasonable doubt in the Veteran's favor, he served on the flight line at Takhli Royal Thai Air Force Base during the Vietnam War; therefore, in-service exposure to herbicide agents is presumed. 3. The Veteran's currently diagnosed PTSD is likely the result of his active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection are met for coronary artery disease. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection are met for PTSD. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD Service connection for PTSD specifically requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (requiring mental disorder diagnoses to conform with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017). With regard to a present disability, the Veteran underwent a VA examination in February 2011, at which time the examiner diagnosed chronic moderate PTSD and recurrent moderate major depressive disorder. Although the DSM-V was not yet in publication at the time of this initial diagnosis, the Board will presume that the diagnosis conforms to the DSM-V diagnostic criteria. The first elements of Shedden and 38 C.F.R. § 3.304(f) are met. With regard to an in-service event or stressor, the Veteran reported several stressor events. At the outset, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his PTSD is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154(b) are not applicable. Nevertheless, the Veteran reported that he frequently thought about the deaths of two of his commanders while in service. His squadron commander was shot down by a missile in Vietnam. The Veteran reported that he thought about this incident regularly. Another commanding officer disappeared after running through a field in Vietnam while being chased by Viet Cong. The Veteran reported that he worried and thought about the disappearance on a daily basis. The Veteran also reported an incident where a plane caught fire across from his tent. He reported that he feared for his life due to the intensity of the blaze. In addition, the Veteran reported that he feared for his life when flying over DaNang and wondered if the enemy would be able to shoot the plane down at that altitude. The Veteran also experienced fear as it related to his living conditions. He further reported that he and his fellow soldiers lived in "hooches" that were cleaned by Thai and Vietnamese persons. He wondered daily if the persons were going to cut his thought while he slept. Guards did get their throats slit on one occasion and the Veteran constantly worried about attacks from hostile people working in and around the base. The Veteran stated that he tried to put the possibility of his own death out of his mind in order to survive and adequately perform his job duties. Although the Veteran's claimed stressors have not been verified, the claimed stressors are consistent with the places and circumstances of the Veteran's service and relate to fear of hostile military activity. Additionally, the February 2011 examiner confirmed that the claimed stressors were adequate to support a diagnosis of PTSD. 38 C.F.R. § 3.304(f)(3) (2017). The Board accepts the Veteran's claimed stressors to be credible. As such, the second elements of Shedden and 38 C.F.R. § 3.304(f) are also met. The remaining question is whether there is a medical nexus between the Veteran's in-service stressor and his current PTSD. The February 2011 VA examiner opined that it was more probable than not that the Veteran's mental conditions were related to this fear of hostile military and terrorist activity. In addition, in a January 2013 opinion, the VA examiner opined that the Veteran's condition was more likely than not caused by his noted stressors, which were adequate to support the diagnosis. Affording the Veteran the benefit of the doubt, the Board concludes that the final elements of Shedden and 38 C.F.R. § 3.304(f) are also met. 38 U.S.C. § 5107(b) (2012). Based on the foregoing, the Veteran's claim for service connection for PTSD is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Coronary Artery Disease For purposes of establishing service connection for a disability resulting from exposure to certain herbicide agents, to include Agent Orange, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). Here, the Veteran has not contended that he served in the Republic of Vietnam, but instead served in Thailand. As for Agent Orange exposure in Thailand, VA Compensation and Pension Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases, including the Takhli Royal Thai Air Force Base during the Vietnam era. See VA Adjudication Manual, M21-1MR, part IV, subpart ii, 1.H.5.b. Certain diseases, listed at 38 C.F.R. § 3.309(e), to include CAD, shall be presumed to be due to exposure to such herbicide agents if they have become manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). In this case, the Veteran's military personnel records show that the Veteran served at the Takhli Royal Thai Air Force Base in Thailand from September 1965 to February 1966. The Veteran's DD-214 shows that his military occupation specialty was an aircraft fuel system mechanic. The Board finds that the Veteran has provided competent and credible testimony that he worked on the flight line and serviced the control systems of planes that made bomb runs to Vietnam. The Board notes that a formal finding from JSRRC found that there was insufficient information in order to verify the Veteran's exposure to herbicides. However, based on the Veteran's credible testimony regarding the nature of his Thailand service near the base perimeter and the service records showing that he served at Takhli Royal Thai Air Force Base at a time it was known to have been contaminated with Agent Orange or a similar herbicide agent at the perimeter, the Board finds that the Veteran was likely exposed to herbicides. The Veteran's private and VA treatment records show a history of CAD, status-post coronary artery bypass graft (CABG), with an onset in 2008. There is no evidence to rebut the presumption that the condition is a result of exposure to an herbicide agent as set forth at 38 C.F.R. § 3.307(a)(6). Accordingly, the Board concludes that service connection for CAD is warranted. ORDER Entitlement to service connection for CAD, to include as secondary to herbicide agent exposure, is granted. Entitlement to service connection for PTSD is granted. REMAND Although the Board sincerely regrets the additional delay, further development is necessary prior to the adjudication of the Veteran's claims of entitlement to service connection for acne, to include as secondary to herbicide exposure; DISH, to include as secondary to herbicide exposure; and a right shoulder disability, to include as secondary to DISH. Acne Service treatment records note complaints of recurrent pustular and cystic acne. The Veteran was afforded a VA skin diseases examination in February 2010. The examiner opined that the etiology of the Veteran's cysts was uncertain and the matter could not be resolved without resorting to mere speculation. In this regard, the Board acknowledges that the Court has held that, generally, where an examiner is unable to give an opinion without resorting to mere speculation without providing sufficient explanation, there is no opinion offered. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Moreover, the examiner failed to address the Veteran's contentions regarding his in-service herbicide exposure as the cause of his current skin condition. As such, a new examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). DISH and Right Shoulder Disability With regard to his claims for entitlement to service connection for DISH, to include as secondary to herbicide exposure; and service connection for a right shoulder disability, to include as secondary to DISH, the Veteran has not been afforded VA examinations, despite his complaints of a current diagnosis for DISH and his presumed in-service herbicide exposure. These claims must also be remanded for VA examinations and opinions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded VA examinations with the appropriate examiner(s) to evaluate the claims for service connection for acne, to include as secondary to herbicide exposure; DISH, to include as secondary to herbicide exposure; and a right shoulder disability, to include as secondary to DISH. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, private medical records, and the Veteran's own assertions. The Veteran's claims folder and this remand must be made available to the examiner for review in conjunction with the examination. Consideration of such should be reflected in the complete examination report. (a) With regard to the Veteran's currently diagnosed acne, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that such a disability had its onset in service or was otherwise etiologically related to active service, to include exposure to herbicides. The examiner is advised that exposure to Agent Orange during service has been established. (b) With regard to DISH, the examiner should determine the nature and etiology of the Veteran's claimed DISH disability. The examiner should state whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's DISH clearly and unmistakably preexisted service. If the examiner concludes that the Veteran's DISH clearly and unmistakably preexisted service, the examiner must determine whether the disability was not aggravated beyond its natural progression by service. If the examiner determines that the Veteran's DISH did not clearly and unmistakably preexist service, the examiner must opine as to whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's DISH had its onset or is otherwise etiologically related to his service, to include exposure to herbicides. The examiner is advised that exposure to Agent Orange during service has been established. (c) With regard to the Veteran's right shoulder claim, the examiner should identify any current right shoulder disorder, including any that may have resolved during the appeals period. If the examiner determines that a right shoulder disability exists, the examiner should opine if it is at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder disability was caused or permanently aggravated beyond its natural progression by the Veteran's DISH. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Then, and after conducting any additional development deemed necessary, the AOJ should readjudicate the Veteran's claims for service connection for service connection for acne, to include as secondary to herbicide exposure; DISH, to include as secondary to herbicide exposure; and a right shoulder disability, to include as secondary to DISH. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs