Citation Nr: 21000210 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 19-03 072 DATE: January 4, 2021 ORDER Service connection for a mild neurocognitive disorder as due to service connected left ventricular hypertrophy and cerebral aneurysm is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The Veteran’s mild neurocognitive disorder is caused by his service-connected left ventricular hypertrophy and cerebral aneurysm. CONCLUSION OF LAW The criteria for service connection for mild neurocognitive disorder as secondary to service-connected left ventricular hypertrophy and cerebral aneurysm are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1984 to September 1988. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in St. Petersburg, Florida. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in June 2020, and accepted that video hearing in lieu of an in-person Board hearing. A transcript of the hearing has been associated with the claims file. Relevant to the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as claims for entitlement to service connection for major depressive disorder and PTSD only. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court’s decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD as well as a claim for service connection for a mild neurocognitive disorder. Service Connection The Veteran contends that his acquired psychiatric disorder, to include mild neurocognitive disorder, is the result of his service or were caused or aggravated by his service connected left ventricular hypertrophy and cerebral aneurysm. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). That regulation permits service connection not only for disability caused by service connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). An opinion submitted in August 2020 from Dr. Z. B., a psychologist and neuropsychologist, indicates that the Veteran fulfills the DSM-5 criteria for a diagnosis of a mild neurocognitive disorder due to multiple etiologies. The provider opined that the contributing etiologies for this condition included brain aneurysms and heart disease. The provider indicated that the Veteran's profile demonstrates a notable range of cognitive and psychiatric symptoms and that the Veteran has a complex medical history that involves bilateral infarcts and an anterior cerebral artery (ACA) aneurysm that was clipped in November 2019 that can impact his functioning. There is contrary opinion of record. Although this opinion contains only a minimal rationale, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current mild neurocognitive disorder is caused by his service connected left ventricular hypertrophy and cerebral aneurysm. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a mild neurocognitive disorder as secondary to service connected left ventricular hypertrophy and cerebral aneurysm is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Service Connection – Acquired Psychiatric Disorder The Veteran contends that his acquired psychiatric disorder is as a result of his active service. Specifically, the Veteran asserts that he has multiple stressors that occurred in service, to include witnessing a suicide during basic training and being beaten by military police, among others. He also asserts that his psychiatric symptoms were caused by exposure to the contaminated water at Camp Lejeune, that his psychiatric symptoms were caused or aggravated by his heart disorder and that his symptoms began during service and have continued since that time. See e.g. Board Hearing Testimony Transcript, June 19, 2020; see e.g., VA Form 21-526EZ, Fully Developed Claim, October 15, 2019. Several opinions have been obtained or submitted in support of this claim. A December 2017 VA examiner diagnosed the Veteran with major depressive disorder, found that he did not meet the DSM-V diagnostic criteria for PTSD and opined that there was no evidence to support that the Veteran’s current symptoms of major depressive disorder were caused by or related to his military service or any in-service illness, injury or event. However, no rationale was provided for this opinion. An August 2018 VA examiner opined that the Veteran’s acquired psychiatric disorder was not presumed related to exposure to the contaminated water at Camp Lejeune; direct service connection was not addressed. A January 2020 VA examiner opined that the Veteran’s anxiety and major depression was less likely than not proximately due to or the result of his heart condition, hypertension, or left ventricular hypertrophy with arrhythmia; an opinion as to direct service connection was not provided. A June 2018 private opinion from Dr. E.R. indicates that the Veteran’s psychiatric disorder was at least as likely as not as a direct result of the Camp Lejeune contamination and that being exposed to such chemicals as there were clear indication of mood changes, anxiety, and other mental health problems present during active service. However, this opinion fails to provide adequate rationale for the conclusions reached and is internally inconsistent as Dr. E.R. asserts that there was clear indication of psychiatric symptoms while also noted that there were no specific mental issues recorded in his medical records. A December 2018 letter from P.W., LCSW, indicates that the Veteran had been diagnosed with major depressive disorder and PTSD; however, no etiology was provided. This provider submitted a similar letter in June 2020 but did not include an etiology opinion. A neuropsychological evaluation from Dr. Z. B. submitted in August 2020 reflects diagnoses of major depressive disorder, unspecified anxiety disorder and PTSD; however, no etiology opinion was provided for those conditions. Accordingly, the Board concludes that the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present acquired psychiatric disorder, to include major depressive disorder and PTSD. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently present acquired psychiatric disorder, to include major depressive disorder and PTSD. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Identify the Veteran’s currently diagnosed acquired psychiatric disorder(s) or has had such a diagnosis at time during the pendency of his claim. If the examiner determines that a diagnosis of major depressive disorder and/or PTSD is not warranted, he or she should reconcile that with the record. (B) Is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner should specifically consider the Veteran’s reports of being beaten by the military police as evidenced by a February 1988 service treatment records; his statements and contentions regarding the circumstances of his service, to include fearing for his safety while serving aboard ships; and any exposure to the contaminated water at Camp Lejeune. (C) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder was caused or aggravated by service-connected left ventricular hypertrophy with arrhythmia associated with hypertension? In offering such opinions, the examiner must provide a complete rationale for all opinions and conclusions reached. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.