Citation Nr: 20021163 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-43 116 DATE: March 24, 2020 REMANDED Service connection for residuals of a neck cyst is remanded. Service connection for an acquired psychiatric disorder, to include depression, is remanded. REASONS FOR REMAND The Veteran testified before the undersigned Veterans Law Judge in a July 2018 video conference hearing. A transcript of that hearing has been associated with the file. The Board remanded the matter in September 2018 for additional development. Although it appears that the remand directives have been substantially complied with, for the reasons that will be discussed below, the Board finds another remand is required. See Stegall v. West, 11 Vet. App. 268. Neck cyst A VA examination was performed in March 2019. The VA examiner opined that the residuals of a neck cyst were not related to service. The rationale was stated as the Veteran reported that he had benign growths removed and stated he served in Thailand. This is poor rationale. The Board finds this opinion is inadequate for adjudication purposes. When VA undertakes to provide an exam, it is obligated to provide an adequate one. Additionally, the examiner appears to conclude that there is no current disability, despite the Veteran’s reporting of pain. The record shows that the Veteran has sought treatment for his neck pain due to the excision of the cyst. Under Saunders v. Wilkie, “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity. Saunders, 886 F.3d 1356 (Fed. Cir. 2018). Accordingly, a new VA examination is necessary in order to confirm any current diagnoses and to obtain an opinion regarding functional impairment. As mentioned in the September 2018 remand, despite the Veteran’s belief that he was exposed to Agent Orange in service, the probative record of evidence, to include the Veteran’s military personnel records and his testimony during the Board hearing all illustrate that he was not exposed to herbicide agents in service. Also, the neck cyst, and any residuals, is not an enumerated disease associated with herbicide agent exposure under 38 C.F.R. § 3.309(e). Therefore, presumptive service connection for neck cyst is not applicable. Nevertheless, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). As the matter is being remanded, the Board will request some development regarding the Veteran’s claim that he landed in southern Vietnam in December 1964 when his air transport landed at the Tan Son Nhut Air Base. No development is needed regarding his service in Thailand as he confirmed that he was in the medical unit and did not ever perform his duties on the perimeter of the base. He also contends that he was exposed to many chemicals when he was in the Army as he was the laboratory specialist. His DD-214 Form illustrates that he was a medical laboratory specialist. As such, the Board will ask the examiner to address the Veteran’s contention that his exposure to chemicals may have caused his neck cyst and any residuals. Psychiatric disorder, to include depression The record shows a January 2011 diagnosis of major depressive disorder and the Veteran testified that he sees a psychiatrist periodically. As such, it appears that there is a current diagnosis of a psychiatric disorder. He contends that his depression was caused by his neck cyst. See December 2014 application for disability compensation. The Veteran has not contended, and the record does not show that his depression is related to service. As stated in the September 2018 remand, this service connection claim issue is inextricably intertwined with the neck cyst claim and therefore must also be remanded. Lastly, the Veteran did not specify whether he seeks treatment at VA or with a private provider, but it appears there may be outstanding treatment records as there are no current mental health treatment records in the file. The matters are REMANDED for the following action: 1. Attempt to confirm whether the Veteran had exposure to herbicide agents in service. This includes taking reasonable efforts to obtain any outstanding service personnel records, to include the Veteran’s assignments and dates and flight logs showing the locations of where he traveled in December 1964. 2. Obtain and associate with the Veteran’s claims file any outstanding VA medical records documenting treatment for neck cyst residuals, as well as any treatment for a psychiatric disorder. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 3. Schedule an appropriate VA examination to determine the nature and etiology of the Veteran’s neck cyst, if possible, with an examiner other than the one that performed the March 2019 examination. The examiner should elicit from the Veteran a complete history of his neck cyst and any residuals. Any tests or studies deemed necessary should be conducted. The examiner should identify all current neck cyst disabilities, to include residuals of the disability found at any time during the appeal period (from December 2014). Note: pain in it of itself may constitute a disability for VA purposes if it results in functional impairment. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment and loss of earning capacity. For any diagnosed neck cyst residuals or finding of functional impairment, the examiner should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent) that the disability manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include the Veteran’s claimed exposures when he served in the Army as a laboratory specialist. The examiner is asked to provide a complete a rationale for all opinions offered. 4. Only if the examiner concludes that any residuals of a neck cyst are related to service, then arrange for the Veteran to undergo a mental health examination to determine the nature and etiology of any acquired psychiatric disorder diagnosed. The claims file should be provided to the examiner for review The examiner should identify all current psychiatric disorders, to include depression, found at any time during the appeal period (from December 2014). For any psychiatric disorder diagnosed, the examiner should enter an opinion as to the following: (a.) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s psychiatric disorder is proximately due to or caused by his neck cyst residuals. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s psychiatric disorder, was aggravated (worsened in severity beyond a natural progression) by his neck cyst residuals. The examiner is asked to provide a detailed, complete, rationale for any opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes 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.