Citation Nr: 20004826 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 18-53 614 DATE: January 23, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, to include as secondary to traumatic brain injury, thoracolumbar spine degenerative joint disease, migraine headaches, and left eyebrow scar, is granted. Entitlement to service connection for right arm condition is denied. Entitlement to service connection for left arm condition is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for bilateral foot condition is denied. Entitlement to service connection for sleep condition is denied. REMANDED Entitlement to service connection for neck condition is remanded. Entitlement to service connection for prostate cancer is remanded. FINDINGS OF FACT 1. The preponderance of the evidence establishes a nexus between the Veteran's psychiatric disorder and his service-connected disabilities. 2. The preponderance of the evidence is against the establishment of a current diagnosis for a left or right arm condition. 3. The preponderance of the evidence is against a finding of an in-service onset of diabetes or that it manifested to a compensable degree within one year of separation from service. 4. The preponderance of the evidence is against a finding of an in-service injury or event related to a foot condition. 5. The preponderance of the evidence is against a finding of a sleep condition related to the Veteran’s military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, to include as secondary to traumatic brain injury, thoracolumbar spine degenerative joint disease, migraine headaches, and left eyebrow scar, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (a), 3.310 (2018). 2. The criteria for entitlement to service connection for left and right arm condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 3. The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 4. The criteria for entitlement to service connection for bilateral foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 5. The criteria for entitlement to service connection for sleep condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 1971 to June 1975, and from June 1975 to June 1979. His period of service from June 1979 to June 1982 has been determined to be dishonorable. See October 1982 Administrative Decision. As a result, entitlement to VA benefits cannot be established based on that paritcular period of service. See 38 C.F.R. § 3.12 (c)(2). This appeal to the Board of Veteran’s Appeals (Board) arose from a July 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has perfected the appeal. See October 2014 Notice of Disagreement; October 2018 Statement of the Case (SOC); November 2018 Substantive Appeal (VA Form 9). During the pendency of this appeal, the RO granted the Veteran’s claims of entitlement to service connection for left and right leg conditions in a March 2019 rating decision. The remaining claims listed on the title page are the claims remaining for the Board’s consideration. Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. §3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. §3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. §3.309(a). Service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § § 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998) When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. 1. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, to include as secondary to traumatic brain injury, thoracolumbar spine degenerative joint disease, migraine headaches, and left eyebrow scar. The Veteran contends that he suffers from depression in relation to his service. Regarding a current diagnosis, on a June 2016 Disability Benefits Questionnaire (DBQ), a licensed psychologist indicated the Veteran’s diagnosis to be depressive disorder due to another medical condition with depressed features. Additionally, VA treatment records show that in February 2018, the Veteran had a positive screening for depression. Regarding an in-service injury or event, the service treatment records are absent any complaints, diagnosis, or treatment for a psychiatric disorder. The psychologist that authored the June 2016 DBQ indicated that the Veteran’s depression is due to his other medical conditions, such as traumatic brain injury, headaches, degenerative joint disease of the lumbar spine, and left eyebrow scar. The Veteran is service-connected for these disabilities. Regarding whether the Veteran’s depressive disorder is indeed due to his service-connected disabilities, the psychologist opined that based on the interview with the Veteran and review of the claims file, the Veteran’s service-connected disabilities more likely than not cause his depressive disorder. The psychologist explained that there is medical literature that detail the connection between medical issues, such as the ones the Veteran currently has, and psychiatric disorders, similar to the Veteran’s depressive symptoms. The psychologist also provided citations to the literature. The psychologist stated that the Veteran struggles with his disabilities. The psychologist noted a general VA examination conducted in October 1994. It was noted that the Veteran experienced features of depression and dysthymia. The Veteran also complained of daily headaches, sad spells, and chronic low back pain. A trial of anti-depressants was recommended for the Veteran. See October 1994 Compensation and Pension Examination. The Board finds the private psychologist's opinion and rationale to be highly credible and competent. The psychologist reviewed the Veteran's claims file and had knowledge of the relevant facts and evidence of the case when rendering the nexus opinion. This psychologist also conducted an interview with the Veteran. The psychologist is also a licensed medical professional who applied the established medical consensus regarding the Veteran's claim. Also, the psychologist provided sufficient rationale to support the positive nexus opinion, citing to medical literature conducted within the medical community. Additionally, there are no medical opinions on the record to the contrary. Thus, the Board finds that a nexus has been established between the Veteran's psychiatric disorder and his service-connected disabilities. The Board finds that the criteria for service connection, on a secondary basis, for the Veteran's depressive disorder have been met and entitlement to service connection is warranted. 2. Entitlement to service connection for left and/or right arm condition. The Veteran claims he is entitled to service connection for a left and right arm condition. Regarding whether there is a current diagnosis, post-service treatment records are absent any complaints, diagnosis, or treatment of right arm pain. There are a few notations regarding left arm pain. A review of those records shows that those notations have always been associated with complaints of chest pain. Chest pains were the chief complaint. There was no injury noted for left arm pain, and no diagnosis was rendered regarding left arm pain. Left arm pain was not among the active problems listed in the Veteran’s VA treatment records. Service treatment records are absent any complaints, diagnosis, or treatment of any right or left arm pain. There are no assertions from the Veteran regarding the onset of right or left arm pain. Based on the evidence of the record, the Board finds that there is no current disability. Service connection requires a showing of a current disability. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board finds that the weight of the evidence is against a finding of service connection for left and right arm condition. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 3. Entitlement to service connection for diabetes mellitus, type II. The Veteran contends that he developed diabetes due to his service. The evidence of the record establishes that the Veteran has a current diagnosis of diabetes mellitus, type II. Regarding an in-service injury or event, the Veteran does not allege foreign service in Vietnam or that he was exposed to herbicide agents during his active service. Thus, presumptive service connection under 38 C.F.R. § 3.307 for herbicide exposure is not applicable in this case. The service treatment records are absent any complaints, diagnosis, or treatment for symptoms of diabetes. There are no assertions from the Veteran regarding the onset of his symptoms related to diabetes. The medical records indicate that he was diagnosed with diabetes more than one year after separation from qualifying service. A review of the medical evidence shows the earliest notations regarding diabetes to have occurred in the mid 1990’s. Since there is no evidence establishing an in-service event or injury, the Board finds that service connection cannot be warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 4. Entitlement to service connection for bilateral foot condition. The Veteran contends he has a bilateral foot condition due to his service. Regarding a current diagnosis, post-service treatment records show that the Veteran’s treatment for tinea pedis. Again, the Board notes that the Veteran is service-connected for bilateral lower extremity radiculopathy. So, the Veteran is being compensated for any symptoms related to his radiculopathy. The service treatment records are absent any complaints, diagnosis, or treatment of any foot conditions, to include tinea pedis. The Veteran made no assertions regarding the onset of any foot conditions. Based on the medical evidence of the record, the diagnosis of tinea pedis occurred many years after separation from qualifying service. The earliest record regarding tinea pedis is from December 1999. Since there is no evidence establishing an in-service event or injury, the Board finds that service connection cannot be warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 5. Entitlement to service connection for sleep condition. The Veteran claims he is entitled to service connection for a sleeping condition. Regarding a current diagnosis of a sleeping condition, VA treatment records indicate that a sleep study was ordered for the Veteran. In October 2010, it was stated that the sleep study was rescheduled for a date in December 2010. It is unclear from the record if it was conducted. In June 2018, it stated that the Veteran was not sure if he had obstructive sleep apnea, but that he was a “suspect.” It was noted that the physician would consult with sleep medicine. The Board does note that chronic sleep impairment has been noted when discussing the Veteran's mental disorder diagnosis and was noted that his mental disorder accounted for the symptom of chronic sleep impairment. As discussed previously, the Veteran is now service-connected for his psychiatric condition, so he will be compensated for the symptom of chronic sleep impairment. Regarding any in-service injury or event related to his probable sleep apnea or any other sleep related condition, the service treatment records are absent any complaints, diagnosis or treatment related to sleep apnea or any other sleep disorders. There are no assertions by the Veteran regarding the onset of any sleeping condition. Any notations regarding a sleep study and probable sleep apnea occurred many years after separation from qualifying service. Since there is no evidence establishing an in-service event or injury, the Board finds that service connection cannot be warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. REASONS FOR REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran’s claims of entitlement to service connection for a neck condition and prostate cancer. 1. Entitlement to service connection for neck condition is remanded. The Veteran contends that he has developed a neck condition due to his service. The most recent VA treatment records indicate that he has multilevel cervical spondylosis. See October 2018 VA Treatment Record. Regarding an in-service injury or event, the Veteran contends that his neck condition is the result of an in-service motor vehicle accident. The Veteran also asserted he injured his back and head. The service treatment records do indicate that the Veteran was involved in a motor vehicle accident in September 1978. The Board notes that the Veteran is service-connected for a back disability and a traumatic brain injury due to the same accident. Based on this evidence, the Board finds that a remand is necessary in order to obtain a VA examination to determine whether the Veteran’s current neck condition is due to the September 1978 motor vehicle accident. 2. Entitlement to service connection for prostate cancer is remanded. The Veteran contends that he developed prostate cancer due to his service. Specifically, the Veteran states that he was exposed to chemicals used in burning classified materials in the incendiary machine as part of his military duties. The medical evidence establishes that the Veteran has prostate cancer (malignant tumor of the prostate). The Veteran’s military occupational specialty was as an administrative specialist. As described in the military personnel records, handling classified materials were part of the Veteran’s duties. The Board finds that the Veteran’s descriptions of his duties are consistent with places, types, and circumstances of his service. Based on this evidence, a remand is necessary in order to obtain a VA examination to determine the nature and etiology of the Veteran’s prostate cancer. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his neck disability and prostate cancer. The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations. Additionally, all updated VA treatment records should be obtained. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Schedule the Veteran for VA examinations to determine the nature and etiology of his neck disability and prostate cancer. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The claims file should be made available to the examiner for review. After record review and examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries: Neck Condition (a) Does the Veteran have a current diagnosis of a neck condition? If so, please provide the diagnosis. (b) If the answer to (a) is yes, is it at least as likely as not (50 percent or greater probability) that the Veteran's neck condition was incurred in, caused by, or etiologically related to the Veteran's service, specifically the September 1978 motor vehicle accident? Prostate Cancer (a) Please confirm whether the Veteran has a current diagnosis of prostate cancer, or residuals stemming from prostate cancer. (b) If the answer to (a) is yes, is it at least as likely as not (50 percent or greater probability) that the Veteran's prostate cancer was incurred in, caused by, or etiologically related to the Veteran's service? The examiner should specifically consider and address the Veteran’s assertions regarding the alleged exposure to chemicals while burning classified materials in the incendiary machine during his service when rendering the opinion. The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.