Citation Nr: 18160846 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-46 461 DATE: December 27, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD) due to military sexual trauma, is granted. Entitlement to service connection for sleep apnea as secondary to the service connected acquired psychiatric disorder to include PTSD is granted. Entitlement to service connection for hypertension is denied. Entitlement to service connection for bilateral pleural effusions is denied. Entitlement to service connection for anemia is denied. Entitlement to service connection for mixed connective tissue disorder is denied. REMANDED Entitlement to service connection for rheumatoid arthritis to include as due to exposure to contaminated water at Camp Lejeune is remanded. Entitlement to service connection for avascular necrosis of the hips to include as due to exposure to contaminated water at Camp Lejeune is remanded. Entitlement to systemic lupus erythematosus to include as due to exposure to contaminated water at Camp Lejeune is remanded. Entitlement to service connection for lupus nephritis to include chronic renal failure and to include as due to contaminated water at Camp Lejeune is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorder, to include depression and PTSD, is etiologically related to his active service. 2. Resolving reasonable doubt in the Veteran’s favor, his obstructive sleep apnea is proximately due to his service-connected PTSD. 3. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral pleural effusions. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of anemia. 6. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of mixed connective tissue disorder. CONCLUSIONS OF LAW 1. The service-connection criteria for an acquired psychiatric disorder, to include depression and PTSD, have been satisfied. 38 U.S.C. §§ 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The service-connection criteria for sleep apnea, secondary to PTSD, are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2017). 3. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 4. The criteria for service connection for bilateral pleural effusions are not met. 38 U.S.C. §§ 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 5. The criteria for service connection for anemia are not met. 38 U.S.C. §§ 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 6. The criteria for service connection for mixed connective tissue disorder are not met. 38 U.S.C. §§ 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from November 1980 to November 1984. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. 1. Entitlement to service connection for an acquired psychiatric disorder to include depression and PTSD due to military sexual trauma, to include as due to contaminated water at Camp Lejeune The Veteran contends his depression and PTSD are due to active military service to include as a result of exposure to contaminated water at Camp Lejeune. With regard to a present disability, the VA medical center (VAMC) records clearly establish that the Veteran has been treated for diagnoses of depression and PTSD. Further, an independent medical examiner, Dr. W.A. diagnosed the Veteran was PTSD, panic disorder with agoraphobia, and depressive disorder, not otherwise specified (NOS). Thereby, the first element of service connection has been satisfied. With regard to the in-service element, the Veteran has made several statements regarding his military sexual trauma (MST) and personal assault. In July 2018, the Veteran stated he experienced four instances which have caused his PTSD including two instances of MST. Generally speaking, in-service incidents must be verified by some documentation, be it via the Veteran’s military personnel records, service treatment records, or other evidence. However, due to the sensitive nature of in-service personal assaults, VA is aware that such incidents frequently go unreported and therefore cannot be confirmed by review of a veteran’s service treatment records. As such, the Code of Federal Regulations specifically addresses methods of verifying such a stressor. If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). The Veteran, in this case, asserts that he was sexual assaulted by a bartender in 1981 after being manipulated by marine classmates on a weekend pass. The Veteran stated he never reported the incident. The Veteran also asserts in 1983 or 1984 while he was at the sickbay in Camp Lejeune, he was sexually assaulted by a Navy medical personnel. The Veteran has also asserted he experienced two stressful incidents while deployed to Camp Schwab in Okinawa during 1981 and 1982. He stated he was attacked in a bar by fellow Marines due to a choice of song on the jukebox. The Veteran also stated he experiences symptoms of PTSD due to being stranded at a flooded campsite and having to be rescued following a hurricane off the coast of Japan. The Board notes that these stressful events have not been verified. However, the Board finds the Veteran’s statement to be credible and supported by the totality of the evidence of record. The Veteran’s statements regarding service have been consistent to the medical providers and as demonstrated by a “buddy statement” submitted by the Veteran’s wife in May 2012. Thus, the second element of service connection has also been established. Turning to nexus, a review of VAMC records show the examiners in March 2014, May 2015, and May 2016 related the Veteran’s PTSD was due to military service. In May 2015, the examiner specified the Veteran’s PTSD flashbacks were related to the 1983 sexual assault. Further, the private examiner, Dr. W.A., noted a marked pattern of social isolation apparently secondary to military service. Conversely, the August 2013 VA examiner provided an opinion only as related to the relation of the Veteran’s depression to exposure to contaminated water at Camp Lejeune. The examiner opined the Veteran’s diagnosis of depression was not the result of exposure to contaminated water. The Board affords this opinion little probative value as no rationale to support the opinion was provided nor was the full medical record considered by the examiner. The Board also noted that private examiner, Dr. P.Y., provided an opinion that the Veteran’s depression and PTSD were more likely than not related to military service. While the Board finds the opinion competent, it cannot be persuasive due to the fact Dr. P.Y. does not have a psychological specialization. Tangentially, while the Veteran’s representative is a physician, the Board finds that his submissions as to the etiology of the Veteran’s psychiatric disorders do not constitute medical opinions because: he primarily identified himself as an advocate in his submissions, not a physician; the submissions do not have the indicia of being a professional medical opinion and were instead couched in legal argument and case law citations; there is no indicia signaling that his submissions were intended as medical opinions; and the submissions were not clearly discernable from legal arguments, especially in light of the aforementioned legal arguments and citations. Harvey v. Shulkin, 2018 U.S. App. Vet. Claims LEXIS 137. Thus, the Board rejects any argument that the Veteran’s representative’s submissions constitute medical opinions. It is important to note that a claim for service connection need not be proven by clear and convincing evidence. Rather, the evidence need only be in equipoise. Accordingly, given the evidence of record in this case and the doctrine of reasonable doubt, entitlement to service connection is warranted for an acquired psychiatric disorder, to include depression and PTSD due to military sexual trauma. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”). 2. Entitlement to service connection for sleep apnea as secondary to the service connected PTSD With regard to a present disability, private treatment records provide a diagnosis of sleep apnea was rendered following a sleep study in July 2012. Accordingly, the first element of service connection has been met. With regard to an in-service diagnosis, the Veteran’s service treatment records (STRs) do not include any complaints, findings, or diagnoses related to sleep apnea. The Veteran did not endorse symptoms of a sleep impairment at the entrance or separation examinations, and the Veteran has not submitted any statements to support that he experienced symptoms of sleep apnea during service. The preponderance of the evidence weighs against finding the Veteran’s obstructive sleep apnea is directly related to service. However, the question remains if there is a medical nexus between the Veteran’s obstructive sleep apnea and one of his service-connected disabilities including the now-service-connected PTSD. In June 2018, a private examiner opined it is at least as likely as not that the Veteran’s sleep apnea is causes by and/or aggravated by his PTSD. The examiner cited to medical literature in support that there is increasing evidence of the relation between obstructive sleep apnea treatment and psychiatric symptoms. The examiner provided in light of his review of the Veteran’s medical records and supporting literature that the conditions are related. The Board also notes that it has rejected any argument that the Veteran’s representative’s submissions constitute medical opinions regarding the etiology to the Veteran’s sleep apnea for the same reasons as set forth above. In light of the positive June 2018 private opinion and lack of conflicting evidence, the Board finds that the evidence supports that the Veteran’s current sleep apnea is related to his service-connected PTSD. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.310. The benefit of the doubt will be conferred in the Veteran’s favor, and the service-connection claim for sleep apnea is thereby granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for hypertension With regard to a present disability, VAMC treatment records show the Veteran has been diagnosed and receiving medication management for hypertension throughout the appellate period. Thus, the first element of service connection has been met. With regard to the in-service element, the service treatment records (STRs) do not show any treatment or diagnoses of hypertension. The enlistment examination showed the Veteran had a blood pressure reading of 112/72. Upon separation, the Veteran’s blood pressure was shown to be 120/84. There were no other recorded blood pressure readings, and the Veteran has not made any statements regard experiencing symptoms of hypertension during service. Without any evidence of treatment for hypertension in service, the second element of service connection is not met and the claim must be denied. In sum, the Board finds that the weight of the evidence is against finding the Veteran’s currently diagnosed hypertension is related to service. 38 U.S.C. § 1131; 38 C.F.R. §3.303. As the preponderance of the evidence is against the claim, further application of the benefit-of-the-doubt doctrine is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for bilateral pleural effusions, anemia, and mixed connective tissue disorder The Veteran asserts he has bilateral pleural effusions, anemia, and mixed connective tissue disorder, which are all related to service. The Board notes the Veteran has not made any statements regarding experiencing symptoms of bilateral pleural effusions, anemia, or mixed connective tissue disorder. The preponderance of the evidence shows no current impairments of bilateral pleural effusions, anemia, or mixed connective tissue disorder. A review of the available medical records does not show any diagnoses or treatment for bilateral pleural effusions, anemia, and mixed connective tissue disorder since the application for service connection was filed in January 2012. Historically, the Veteran was seen on several occasions in 2001 at which time he was noted to have a history of pleural effusions, anemia, and mixed connective tissue disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131. In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. Here, for the reasons set forth above, the overall evidence of record weighs against a finding of bilateral pleural effusions, anemia, or mixed connective tissue disorder at any time during the appeal period. At no time since the Veteran first filed a claim for service connection in January 2012 has bilateral pleural effusions, anemia, or mixed connective tissue disorder been shown. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (stipulating that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran’s claims for service connection for pleural effusions, anemia, and mixed connective tissue disorder. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the Veteran’s claims for service connection for bilateral pleural effusions, anemia, and mixed connective tissue disorder are denied. See 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for rheumatoid arthritis, to include as due to contamination at Camp Lejeune The Veteran contends he is entitled to service connection for rheumatoid arthritis. In August 2013, a VA examiner determined there was no diagnosis of rheumatoid arthritis on the basis of the record for which to give an opinion on. In forming this opinion, the examiner failed to consider all of the available medical evidence of record. Specifically, the examiner did not state the consideration of private examiner, Dr. P.Y., who provided an opinion in June 2012. Dr. P.Y. opined the Veteran’s rheumatoid arthritis was diagnosable and more likely than not related to service. Further, the examiner did not consider the notations of chronic arthritis and arthritis pain affecting his hips found in the private medical records from Dr. C.P. in August 2009 and January 2010. Accordingly, an additional examination is required to fully consider the available treatment records and provide a nexus opinion. 2. Entitlement to service connection for avascular necrosis of the hips to include as due to exposure to contaminated water at Camp Lejeune is remanded. The Veteran contends he is entitled to service connection for avascular necrosis of the hips to include as due to exposure to contaminated water at Camp Lejeune. In August 2013, a VA examiner determined the Veteran’s avascular necrosis of the hips was not due to the contaminated drinking water at Camp Lejeune, but was associated with the Veteran’s systemic lupus. The Board finds this opinion to be inadequate. First, the examiner did not provide any rationale to support this conclusion. Second, the examiner did not provide any consideration of the June 2012 opinion provided by Dr. P.Y. who opined it was more likely than not that the Veteran’s avascular necrosis of the hips was a result of his exposure to contaminated water at Camp Lejeune. Accordingly, an additional examination is required to fully consider the available treatment records and provide a nexus opinion. 3. Entitlement to service connection for systemic lupus erythematosus and for lupus nephritis including chronic renal failure, and to include as due to exposure to contaminated water at Camp Lejeune is remanded. The Veteran contends he is entitled to service connection for systemic lupus erythematosus (SLE) and for lupus nephritis to include as due to exposure to contaminated water at Camp Lejeune. In August 2013, a VA examiner determined the Veteran’s systemic lupus erythematosus was not due to exposure to contaminated water at Camp Lejeune because SLE is a chronic inflammatory disease of unknown causes which is diagnosed based on clinical and laboratory findings. The VA examiner also found the Veteran’s chronic renal failure was not due to contaminated water exposure, but was instead a result of his lupus. The examiner did not provide an opinion specific to lupus nephritis. The Board finds the August 2013 examiner’s opinion is inadequate because it does not specifically address if the Veteran’s diagnosis as related to his exposure to contaminated water. Further, it does not address Dr. P.Y.’s opinion that lupus and chronic renal failure are more likely than not related to exposure to contaminated water at Camp Lejeune. A further medical opinion is warranted. 4. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The Veteran has asserted he is unable to secure or maintain substantial employment due to his service connected impairments. The Veteran applied for TDIU in June 2012. The Regional Office requested the Veteran complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability, but the form was not returned. The evidence of record includes a June 2012 statement from Dr. P.Y. stating that due to the Veteran’s PTSD, clinical depression, lupus, rheumatoid arthritis, aseptic necrosis, and renal failure, he was individually unemployable. The Board finds the Veteran should be afforded an additional opportunity to present information regarding his claim for TDIU. The Board cautions that failure to return this form may result in a denial of benefits. The matters are REMANDED for the following actions: 1. Provide the Veteran with an additional VA Form 21-8940 and request that he provide information regarding his employment history. 2. Thereafter, if adequate information has been provided, send VA-Form 4192 to the Veteran’s past employers to obtain relevant information regarding the Veteran’s past employment 3. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his claims that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. 4. After completing the above directive, the Veteran should be scheduled for appropriate VA examinations to determine the nature, extent, onset, and etiology of his rheumatoid arthritis, avascular necrosis of the hips, systemic lupus erythematosus, and lupus nephritis to include chronic renal failure. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information: (a.) The examiner should identify any currently diagnosed rheumatoid arthritis, avascular necrosis of the hips, systemic lupus erythematosus, and lupus nephritis to include chronic renal failure. (b.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s rheumatoid arthritis, avascular necrosis of the hips, systemic lupus erythematosus, and lupus nephritis to include chronic renal failure are due to or otherwise causally or etiologically related to his military service. (c.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s rheumatoid arthritis, avascular necrosis of the hips, systemic lupus erythematosus, and lupus nephritis to include chronic renal failure are due to the conceded exposure to contaminated water at Camp Lejeune. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The consideration given the opinion of to Dr. P.Y. must be expressly stated. The examiner considering the Veteran’s rheumatoid arthritis is also asked to address the notations of arthritis as related to the hips in Dr. C.P.’s treatment records. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel