Citation Nr: 21000749 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-36 582 DATE: January 6, 2021 ORDER Entitlement to service connection for major depressive disorder (MDD) is granted. REMANDED Entitlement to service connection for coronary artery disease (CAD), to include as due to herbicide exposure is remanded. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure is remanded. Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as due to herbicide exposure is remanded. FINDING OF FACT The Veteran’s MDD is at least as likely as not etiologically related to his active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for major depressive disorder (MDD) have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to February 1980 and in the Army Reserve from August 1983 to November 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied the Veteran’s claims in a June 2019 decision. The Veteran then appealed to the United States Court of Appeals for Veteran’s Claims (CAVC), and in July 2020 CAVC vacated the June 2019 Board decision, granted a joint motion for remand, and returned the case to the Board for action consistent with the joint motion for remand. Service Connection—Legal Criteria 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 nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain specified diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(ii) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). Coronary artery disease (CAD), Chronic Lymphocytic Leukemia (CLL), and Type II Diabetes Mellitus are among the diseases specified. 38 C.F.R. § 3.307(a)(6)(ii) requires that these diseases have become manifest to a degree of 10 percent or more at any time after service. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. MDD The Veteran seeks service connection for his major depressive disorder (MDD), which he contends originated in service or is otherwise etiologically related to his active duty service. The medical evidence confirms that the Veteran has a current diagnosis of MDD. See September 2014 VA PTSD examination. The central issue that must be resolved is whether the Veteran’s current disability originated in service, or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran’s service treatment records (STRs) contain complaints of, and treatment for, psychiatric symptoms. Notably, the Veteran’s entrance examination is silent for any psychiatric conditions. However, the Veteran was later treated in December 1979 for “immature personality,” and in June 1984 the Veteran’s treatment notes indicate that he verbalized anger at his unit, was tearful, and reported feeling overwhelmed. Additionally, the Veteran’s separation examination notes psychiatric troubles. The Veteran provided an October 2019 Affidavit wherein he reported prior to service he experienced no difficulties in social settings. The Veteran further documented that he underperformed during drills and his sergeant would punish his unit with extra exercise because of his underperformance. He continued that the other soldiers in his unit assaulted him in the barracks one night because of this and, from that point on, he did not get along with his fellow soldiers and got into multiple fights with them. The Veteran also reported being attacked while he was stationed in Hawaii after trying to help a woman who was being harassed by other soldiers. The Veteran indicated that he still experiences nightmares from these incidents. He is competent to report symptoms, and what he has directly experienced, because they require only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. The Board notes that the Veteran’s lay statements are supported by notations in his Military Personnel Records. A December 1979 statement from the Veteran’s supervisor indicated that the Veteran had to be assigned to tasks that he could complete alone because working with other soldiers resulted in conflicts. The supervisor continued, noting that much of the Veteran’s continual difficulties with his peers began as part of an “informal initiation” and that due to his reactions the other soldiers continued to harass him. Additionally, the Veteran had to be removed from a firing range, for safety, because he was hostile and crying. The Board also observes a January 1980 note indicated that the Veteran’s emotional outbursts adversely impacted his job performance, and that he was unable to interact with his peers. The note clarified that the Veteran constantly got into fights. The Veteran was first afforded a September 2014 VA Mental Disorders examination. The Veteran was diagnosed with Major Depressive Disorder secondary to his leukemia (which is now service connected below). The examiner indicated that while the Veteran’s STRs note depression, anxiety, and suicidal ideation, these were related to his in-service Personality Disorder diagnosis. The examiner continued that the Veteran’s current MDD diagnosis is unrelated to his military service. In February 2019, the Veteran submitted a private medical opinion from a psychologist Dr. D.B. This opinion was undertaken after a thorough review of the Veteran’s claims file and medical treatment records. In his opinion, Dr. D.B. stated that the Veteran’s MDD and his in-service personality disorder cannot be differentiated. Dr. D.B. concluded that it is more likely than not (greater than 50 percent probability) that the Veteran’s currently diagnosed MDD had its initial onset while he was in active duty service. The rationale provided was that this diagnosis was reflected in the Veteran’s in-service symptoms such as anxiety, despair, intense anger, outbursts, irritability, social conflicts, and physical conflicts. Given the VA examiner’s opinion, the private medical opinion, the Veteran’s STRs, the Veteran’s Military Personnel file, and the Veteran’s competent lay statements, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran’s MDD disability etiologically related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for the Veteran’s MDD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In sum, the Board is satisfied that the evidence supporting the claim is at least in equipoise with that against the claim. Therefore, the Veteran is entitled to service connection for his MDD condition. REASONS FOR REMAND CAD, CLL, and Diabetes Mellitus The Veteran seeks service connection for CAD, CLL, and diabetes mellitus which he contends was caused by his in-service exposure to the herbicides. Specifically, the Veteran argued that his exposure to herbicides while he was stationed at Fort McClellan, Alabama caused his claimed disabilities. The Veteran’s personnel files and lay statements confirm his service at Fort McClellan. Additionally, the Veteran’s lay statements indicate that his training on the fort had him go to multiple locations, firing ranges, and fields. Further the Veteran explained he crawled through dirt/mud in various types of weather. It is through these instances that the Veteran claims his herbicide exposure took place. At the outset, the Board notes that all of the Veteran’s claims hinge on whether he was exposed to qualifying herbicide agents and/or other chemicals in service. At present, the Board finds that there is insufficient evidence in the claims file to make a determination as to that issue. A remand for additional development is therefore required. The Veteran is currently diagnosed with type II diabetes, CAD, and CLL. See April 2018 VA Leukemia, April 2018 VA Diabetes, and April 2018 VA Heart Conditions examinations. The central issue that must be resolved is whether the Veteran was exposed to qualifying herbicides during his service at Fort McClellan. In support of his contentions, the Veteran has submitted a Combined Environmental Exposure Report for Fort McClellan, a report titled ‘Likelihood of exposure to herbicide agents used in the Vietnam War by Veterans who served on Fort McClellan in Anniston, AL’ by H.M., Ph.D., and other medical treatises regarding the military use of herbicide agents generally both in Vietnam and domestically. Additionally, the Veteran cited to prior Board decisions pertaining to other veterans who were granted service connection for disabilities based on exposure to herbicide agents during service at Fort McClellan. The Board notes that the Veteran’s exposure to commercial herbicides has been conceded. However, the Joint Service Records Research Center (JSRRC) in a March 2018 formal finding of herbicide exposure noted that commercial herbicides do not fall under the governing exposure statute, while the Veteran argues that a distinction between commercial and tactical herbicides is moot. The Board notes that “herbicide agents” is statutorily defined as "a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram." 38 C.F.R.§3.307(a)(6)(i) (emphasis added). Given the available evidence, the Board finds that a remand is required for the RO to undertake additional development regarding the Veteran’s alleged exposure. The claims file confirms that the Veteran served at Fort McClellan from July 1979 to September 1979, and he has described that he was exposed to herbicide agents and/or other toxins by performing his duties on the base. The medical treatises and reports submitted by the Veteran make clear that his contention is that he was exposed to herbicide agents and/or other toxins in the ground or water at Fort McClellan during his period of service there. This information is sufficient for the RO to make requests regarding the Veteran’s alleged exposure to Compensation Services and the JSRRC. The Board also notes that Dr. H.M. stated in her report that it was her professional opinion as a weed scientist that it was more likely than not, and that it is even to a reasonable degree of certainty, that those serving and/or living at Fort McClellan between 1974-1976 were exposed to the herbicide agents discussed in her report. While Dr. H.M.’s opinion is limited to a date range prior to when the Veteran served at Fort McClellan, in his November 2020 Appellant’s Brief the Veteran cited to an Institute of Medicine (IOM) 1994 Agent Orange Report, which indicates that when many herbicide agents and other chemicals penetrate the ground surface, they can persist in the soil for years. While the reports and opinion submitted by the Veteran shed light on the use of herbicide agents and other chemicals at Fort McClellan generally, the mere presence of toxins in various locations at Fort McClellan is insufficient to establish that the Veteran was exposed to those toxins without any discussion of the likely duration or intensity of the Veteran’s specific exposures. Neither the Board nor the Veteran is competent to speak to the likely duration or intensity of the exposures in question, and their likely medical effects. As such, an opinion must be obtained from an appropriate professional (such as an environmental toxicologist or environmental health specialist) to address the matter. Following that, a medical opinion must be obtained with respect to the further question of whether the Veteran’s diabetes, CLL, and CAD can be attributed to such exposures. As to the prior Board decisions submitted by the Veteran, the Board notes that prior Board decisions pertaining to one veteran are not precedential with respect to another. 38 C.F.R. § 20.1303. The matter is REMANDED for the following action: 1. The Veteran and his attorney should be asked to provide as much additional detail as possible with respect to the specific exposures the Veteran is alleging, in terms of dates, locations, and duration of the exposures. They should be asked to list each of the substances to which exposure is alleged, along with the means and duration of the exposure. As part of their response, they should be asked to indicate whether the Veteran was involved in chemical school or training at Fort McClellan. 2. After the foregoing development has been completed to the extent possible, furnish the available information with respect to the approximate dates, locations, and nature of the Veteran’s alleged exposure to herbicide agents to the Compensation Service with a request to review the DoD’s inventory of herbicide operations to determine whether herbicides and the other toxins noted were used as claimed. Consideration should be given to the Veteran’s assertions with respect to his belief that herbicides and other chemicals were present in the ground and water at Fort McClellan during his period of service there. Consideration should also be given to the Combined Environmental Exposure Report for Fort McClellan, the report and opinion of Dr. H.M., and the other medical treatises of record regarding the military’s use of herbicide agents and/or other chemicals. 3. If the Compensation Service’s review does not confirm that herbicides were used as alleged, send a request containing the same information to the JSRRC for verification of exposure to those agents. 4. After the foregoing development has been completed to the extent possible, ask an appropriate professional (such as an environmental toxicologist or environmental health specialist) to review the record and address the matter of the likely duration, extent, and intensity of each of the exposures in question, as they pertain to the Veteran individually. The final report should contain a list of each of the substances to which exposure is alleged, along with a description of the likely duration, extent, and intensity of each. In so doing, the professional should consider the Combined Environmental Exposure Report for Fort McClellan, the report of Dr. H.M., and the other medical treatises of record regarding the military’s use of herbicide agents and other chemicals. If the professional reviewing the record cannot provide an opinion as to any particular exposure without resort to speculation, he or she must provide an explanation as to why that is so. In so doing, the professional should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing the information sought. 5. Thereafter, arrange to have a VA examiner with appropriate expertise review the record and provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s diabetes, CLL, and/or CAD can be attributed to any of the alleged exposures, either alone or in combination. In so doing, the examiner should discuss the medical significance, if any, of Dr.H. M.’s opinion regarding herbicide exposure at Fort McClellan. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.