Citation Nr: 18138697 Decision Date: 09/26/18 Archive Date: 09/26/18 DOCKET NO. 15-09 421 DATE: September 26, 2018 ORDER Entitlement to service connection for heart disease, claimed as ischemic heart disease, to include as due to exposure to herbicides, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for insomnia is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for dermatitis is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of ischemic heart disease, and there is no competent evidence that any other possible current heart disease was incurred or aggravated in service, or manifested to a compensable degree within one year after the Veteran was separated from service. 2. The Veteran does not have a diagnosis of PTSD or any acquired psychiatric disability incurred in or related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for heart disease, claimed as ischemic heart disease, to include as a result of exposure to herbicide agents, have not been met. 38 U.S.C. 1110, 5107 (2012); 38 C.F.R. 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. 1110, 5107 (2012); 38 C.F.R. 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1965 to January 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) regional office. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in April 2018. A transcript is of record. Service Connection Service connection may be established for a disability resulting from diseases or injuries that are incurred or aggravated in service. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for certain chronic disabilities, such as heart disease, if such is shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C. 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309. In addition, as an alternative to the nexus requirement, service connection for certain chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of continuity of symptomatology, however, the showing must still be made during the period of service or within one year after separation from service. 1. Entitlement to service connection for heart disease, claimed as ischemic heart disease, to include as due to exposure to herbicides. The Veteran is seeking service connection for ischemic heart disease as result of exposure to herbicide agents. VA regulations provide that certain diseases associated with exposure to herbicide agents, including ischemic heart disease, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. 3.307 (a)(6) are met. 38 C.F.R. 3.309(e). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. 3.307(a)(6), (d); 3.309(e). Thus, if a veteran falls under the requirements of the herbicide agent presumption and has a current diagnosis of one of a list of specified diseases, such as ischemic heart disease, VA will presume inservice incurrence and a causal relationship (nexus), and grant service connection. Even in such cases, however, the veteran must have a current diagnosis of a qualifying disease. In this case, the Veteran did serve in Vietnam during the statutory period of January 9, 1962 to May 7, 1975, and there is no affirmative evidence to establish that the Veteran was not exposed to herbicide agents during that service. Thus, if the Veteran has a current diagnosis of ischemic heart disease, VA will presume inservice incurrence and a causal relationship (nexus), and grant service connection. There is no evidence in the available record, however, to show that the Veteran has ever had a diagnosis of ischemic heart disease. The Veteran’s in-service treatment records contain no diagnosis of ischemic heart disease. The Veteran’s post-service VA treatment records contain no diagnosis of ischemic heart disease. In a November 2012 VA examination, the examiner found that there was no evidence or diagnosis of ischemic heart disease. Therefore, there is no evidence in the available record to support the Veteran’s claim of ischemic heart disease, and the Veteran does not have the first element necessary for service connection for ischemic heart disease, evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223; McClain v. Nicholson, 21 Vet. App. at 321; Romanowsky v. Shinseki, 26 Vet. App. at 294. Based on the absence of a current diagnosis of ischemic heart disease, service connection for ischemic heart disease as a result of exposure to herbicide agents is denied. Although the herbicide agent presumption available for ischemic heart disease does not apply to the Veteran’s other possible heart disabilities, service connection can still be granted if the Veteran has other heart disabilities that meet the requirements of the standard service connection provisions. As noted, the first requirement for service connection is that the Veteran have a current disability. Assuming for purposes of argument that the Veteran has a diagnosis of a current heart disability such as aortic stenosis, however, the claim still would not meet the second service connection requirement, that there be an in-service incurrence or aggravation of a disease or injury, or, for certain chronic diseases such as heart disease, that the disease manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. 3.307, 3.309. The Veteran’s service treatment records contain no diagnosis or symptoms of any heart disorder, and there is no evidence showing diagnosis or symptoms of any heart disorder during the year following separation from service. Turning to the Veteran’s lay statements, at various points in his appeal, the Veteran has suggested that the records support a diagnosis of ischemic heart disease. The Board has carefully considered the Veteran’s assertions, but finds there is no medical evidence supporting such a diagnosis. The Board notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331. However, a determination of whether the Veteran’s heart problems constitute ischemic heart disease as opposed to some other heart condition, and whether any heart disease is related to service, requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. Barr v. Nicholson, 21 Vet. App. 303; Grover v. West, 12 Vet. App. 109; Woehlaert v. Nicholson, 21 Vet. App. 456. Furthermore, even if the Veteran was competent to provide such a statement, the Board finds that the reasoned opinion of a medical professional is more probative than the Veteran’s lay assertions. The VA examiner has specific medical training, experience, and expertise that the Veteran is not shown to have; therefore, that opinion would be given more weight. In sum, the Veteran has no current diagnosis of ischemic heart disease, and service connection for ischemic heart disease as a result of exposure to herbicide agents, must therefore be denied. In addition, even assuming that the Veteran has a current diagnosis of a different heart disorder, the Veteran is still missing the second essential element to establish a service connection, namely, that such a heart disorder was incurred or aggravated during service, or manifested within one year after separation from service. Therefore, service connection for the Veteran’s claim for a heart disability, to include ischemic heart disease as a result of exposure to herbicide agents, must be denied. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD). Establishing service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (2018); 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. 38 C.F.R. § 3.304(f). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV). The Board notes that the DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has issued an interim final rule amending certain provisions in the regulations to reflect this update, including 38 C.F.R. § 4.125(a). 79 Fed. Reg. 45093. The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014, and do not apply to appeals already certified to the Board or pending before the Board. Id. The current claim was pending before the agency of original jurisdiction on and after August 14, 2014; thus, the amendments do apply in this case. Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, section 3.304(f) sets forth circumstances that are exceptions to this rule and allow a claimant’s lay testimony, alone, to establish the occurrence of the alleged stressor. In the first circumstance, if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided the 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)(1). In the second circumstance, 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 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. § 3.304(f)(2). In the third circumstance, if a stressor claimed by a veteran is related to his “fear of hostile military or terrorist activity” and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms 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. § 3.304(f)(3). For purposes of this relaxed evidentiary standard set forth in this subsection, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. In the fourth circumstance, if the evidence establishes the veteran was a prisoner-of-war (POW) under the provisions of section 3.1(y) of the regulations, and the claimed stressor is related to that POW experience, in the absence of clear and convincing evidence to the contrary, and provided the 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. § 3.304(f)(4). If one of the above exceptions does not apply, then the veteran’s statements alone will not be sufficient to establish an in-service stressor, but must be corroborated by credible supporting evidence. Dizoglio v. Brown, 9 Vet. App. 163 166 (1996). The available evidentiary sources for corroboration of a claimed stressor are not limited to service records (as required prior to the adoption of 38 C.F.R. § 3.304(f)), but may also include other sources of evidence. Corroboration of every detail of the stressor is not required. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). Moreover, a veteran’s actual presence during the stressor event need not be specifically corroborated if the evidence shows that he was assigned to and stationed with a unit that was present when a reported event that has otherwise been verified occurred; such evidence strongly suggests actual exposure to the stressor event. Id. In general, with the exception of stressors based on personal assault, “after-the-fact medical nexus evidence,” such as a VA examiner’s finding that a claimant’s PTSD was caused by the alleged in-service stressor, cannot by itself serve as credible supporting evidence of the claimed in-service stressor. Here the Veteran asserts he suffers from PTSD as a result of his active service. Specifically, he asserts that his base came under enemy fire several times while he was on active duty and his PTSD symptoms are as a result of those in-service incidents. Service treatment records are silent concerning treatment for or diagnosis of PTSD or any acquired psychiatric disability. The Veteran denied any treatment of or diagnosis of a mental health disability on his August 1965 service enlistment examination and his November 1968 service discharge examination. Medical treatment records are similarly negative for treatment or diagnosis of PTSD or any acquired psychiatric disability. All PTSD screenings completed at VA treatment centers were negative; the Veteran continually denied PTSD symptoms including nightmares, avoidance, hypervigilance, or social withdrawal. A November 2012 VA examination report noted the Veteran was exposed to traumatic stressors while in active service to include fear of hostile military activity. However, the examiner gave a negative nexus opinion for the claimed PTSD. As rationale, the examiner stated the Veteran denied PTSD symptoms and did not exhibit or experience obvious social and/or occupational deficits needed for a formal PTSD diagnosis. Based on the evidence of record, the Board finds that service connection for PTSD cannot be granted. Significantly in this case, there is no current valid disability of PTSD, i.e., diagnosis conforming to the DSM-IV/5, as confirmed by VA examination or any objective medical evidence. The Veteran’s claimed stressor in service was deemed by the RO to be sufficient evidence for stressor consideration, and an examination was conducted, but no psychiatric diagnosis of PTSD was made in the November 2012 VA examination report. In that connection, the Board notes that the November 2012 VA opinion is persuasive and based upon adequate rationale. Although the examiner acknowledged the Veteran’s reported stressor, it was subsequently noted that he did not report any symptoms that would meet the criteria for PTSD and that he has not been clinically diagnosed with PTSD at any point. This conclusion is not contradicted by any competent evidence of record. Further, the examiner is shown to have reviewed of the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). With respect to any psychiatric disorder other than PTSD, to include on the basis of 38 U.S.C. § 1117 and 38 C.F.R. §3.317, the Board points out that the VA examiner did not find any evidence of a mental disorder. Consequently, the record does not establish either a diagnosed mental disorder, or indication that the Veteran has any type of an unidentifiable mental disorder. Consideration has also been given to the Veteran’s personal assertion that he has PTSD as a result of service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Acquired psychiatric disorders are not conditions readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran is competent to report observable symptoms; however, no symptoms of an acquired psychiatric disorder manifesting in service or within a year of discharge have been identified. There is also no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise as to acquired psychiatric disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. In conclusion, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. REASONS FOR REMAND On review of the record, the Board has found that further development is needed. 1. Entitlement to service connection for insomnia is remanded. The Veteran contends that he has a current insomnia disorder which is either caused by service or is caused or aggravated by service-connected disabilities. He was afforded a VA examination in November 2012, and the examiner opined the Veteran’s claimed insomnia was less likely than not related to his claimed PTSD or that he had a diagnosis of insomnia. The examiner stated “…he cited no diagnosis of insomnia,…the examiner does not believe the Veteran as likely as not (at least 50/50 probability) suffers from insomnia.” At his April 2018 hearing, the Veteran testified that he suffered from insomnia since active service. The Board finds the examiner’s rationale inadequate as it stated no reasons or bases for the conclusions. Thus, the Veteran must be afforded a new examination to determine any diagnosis of insomnia and to provide an etiological opinion for any diagnosis. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for dermatitis is remanded. While the Veteran was afforded a VA examination for hypertension and dermatitis in November 2012, the Board notes that both examination reports failed to provide an etiological opinion regarding either claimed disorders. The examiner noted the Veteran’s file was not available to review at the time of examination, and he did not opine as to whether or not the Veteran’s dermatitis or hypertension was related to his military service. Therefore, these claims must be remanded for another medical examination and opinion. See 38 C.F.R. § 4.2 (2018) (where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); McLendon, 20 Vet. App. 79; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran’s updated treatment records. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 2. After obtaining all available treatment records, forward the claims file to an appropriate medical professional to offer an addendum opinion regarding the etiology of the Veteran’s claimed insomnia, hypertension, and dermatitis. An examination of the Veteran is not required unless deemed necessary by the medical professional selected to offer the opinion. The claims file including a copy of this remand must be made available to, and be reviewed by, the examiner. The examiner is asked to address the following: (a) Does the Veteran have a current diagnosis of insomnia? If so, is it as it at least as likely as not (50 percent or greater probability) that the Veteran’s current insomnia was caused by his active service? (b) Is it as it at least as likely as not (50 percent or greater probability) that the Veteran’s current hypertension and dermatitis were caused by his active service? (CONTINUED ON NEXT PAGE) All opinions expressed should be accompanied by supporting rationale. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel