Citation Nr: 21000930 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-14 071 DATE: January 6, 2021 ORDER Service connection for arthritis is denied. Service connection for adjustment disorder with mixed anxiety and depressed mood is granted. REMANDED Service connection for a nerve condition. Service connection for skin cancer. Service connection for fibromyalgia. FINDINGS OF FACT 1. The Veteran’s arthritis is not related to service. 2. The Veteran’s adjustment disorder with mixed anxiety and depressed mood is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for adjustment disorder with mixed anxiety and depressed mood major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to April 1971. The case is on appeal from an October 2013 rating decision. In September 2018, the Veteran testified at a Board hearing. The case was last before the Board in November 2019. At that time, the Board granted service connection for diabetes. The Board also remanded claims of service connection for a nerve condition, skin cancer, fibromyalgia, arthritis, hearing loss, tinnitus, and a psychiatric disorder to include posttraumatic stress disorder (PTSD), depression, and/or anxiety for further development. While the case was in remand status, in a July 2020 rating decision, the RO granted service connection for hearing loss and tinnitus. As the benefits sought were granted in full, these issues are no longer before the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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. § 5109(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for arthritis. The Veteran contends that he has arthritis as a result of being exposed to herbicides. Service treatment records (STRs) are silent for treatment, including his May 1969 entrance examination and April 1971 separation examination, show no complaints, treatment, or diagnosis of arthritis. An October 2013 VA memorandum was placed in the Veteran’s file, noting that there any other STRs are unavailable for review and that further attempts to find them would be futile. Medical records include notation of the Veteran’s arthritis as part of his past medical history. Upon the Board’s remand, the Veteran was afforded a VA examination in January 2020. The examiner opined that it is less likely than not that the Veteran’s arthritis was incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that in-service records were silent for the claimed condition. Additionally, the arthritic condition identified in the lumbar spine and knees are degenerative in origin, due to wear and tear. His arthritic condition is not due to herbicide exposure. Not only is there is no evidence in the record of a systemic arthritic condition such as lupus or rheumatoid arthritis, but post-service treatment records confirm a history of back trauma unrelated to service. The examiner noted during the examination that the Veteran has arthritis of the lumbar spine. The Board finds the January 2020 medical opinion persuasive, as the rationale for the opinion is based upon accurate facts and sound reasoning and is consistent with evidence of record. Moreover, the examiner did not merely find no nexus, but explained the lack of a relationship. In addition, there is no similar medical opinion of record weighing in favor of a nexus. As such, service connection is not warranted for arthritis based on a direct theory, including due to herbicide agent exposure. In reaching the conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for arthritis. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 2. Service connection for a psychiatric disorder. The Veteran contends that he began treatment for his mental disorder while at Camp Casey in 1970 after having nervous breakdown. At the September 2018 Board hearing, the Veteran testified that while stationed in Korea, he went to the camp for mail pickup, and received a “Dear John letter” from his ex-spouse. Immediately after reading the letter, he claims he had an altercation with a lieutenant, and awoke the following day strapped to a hospital bed. The Veteran reported that following that incident he was sent home on leave to get a divorce and reported to Fort McPherson in Atlanta for psychiatry services. As noted above, an October 2013 VA memorandum provided that some of the Veteran’s STRs were unavailable for review. However, service personnel records (SPRs) available show the Veteran was assigned to “Garrison Co (USA) Ft. McPherson Ga” in February 1971. Additionally, in an October 2013 statement, the Veteran provided he is being treated for his mental disorder at VA in Atlanta. Upon the Board’s remand, the Veteran was afforded a VA examination in December 2019. At that time, the examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood, as the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 criteria. During the examination, the Veteran noted that, in terms of mental health treatment, he had been prescribed Prozac by 2 different private doctors and that he currently takes Zolpiderm. He also reported receiving counseling a few times in the past, but he was unable to provide the names or dates for the treatment. When asked about current psychiatric symptoms, he only mentioned having anxiety due to the VA claim and mentioned getting a little depressed sometimes with no specific reason. The examiner found the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner found that while the Veteran endorsed intermittent symptoms of anxiety and depression associated with a frustration with VA in finding his records, he did not endorse any PTSD symptoms or being easily triggered by cues related to a combat stressor that occurred in Vietnam, social withdrawal, or social avoidance. The Veteran indicated his marriage is “great,” that he is involved with the American Legion Riders and American Legion, and also reported stable employment history, working for 27 years for an electrical company, until he took an early retirement in 2005 due to medical disabilities. As a result, the examiner opined that the Veteran’s condition was less like than not incurred in or caused by the claimed in-service injury, event, or illness. Private medical records provide the Veteran has been treated for anxiety since at least June 2007, to include prescription medication. As of October 2013, the Veteran was diagnosed with depression with anxiety by a private physician and prescribed Cymbalta at treatment. Previously, in October 2016, a private physician provided the Veteran has received treatment at the facility and was diagnosed with depression at this particular office. Having reviewed the Veteran’s service medical records, the physician opined that the Veteran’s condition is related to the current diagnosis. While he could not state exactly how long his condition existed prior to the date of diagnosis, the Veteran did provide he has problems ever since service. Therefore, the private physician opined that this condition could have as likely as not been caused or aggravated by the Veteran’s active duty service. Evidence of record also includes a statement from the Veteran’s wife. She provided that his nerves have been bad all these years and he has been on medication as long as they have been married. For example, he is on Cymbalta for depression and he is doing a lot better. The Board finds the Veteran’s private psychiatrist’s opinion persuasive as to the nexus element to the extent that this treating medical provider is aware of the Veteran’s medical history as part of their preparation for roper assessment and treatment of his mental disorder. Additionally, the Board assigns probative credibility and weight to the consistency of the Veteran’s and spouse’s statement as to the onset of symptoms, to include sleeping symptoms and irritability. Considering the evidence of record, including both the October 2016 private opinion and December 2019 VA medical opinion, the Board finds that the evidence is at least in equipoise with respect to nexus element of the claim. In view of the of the Veteran’s testimony that he began treatment for a mental disorder while in service and the October 2016 private medical opinion that the Veteran’s condition is due to his active military service, the Board finds that the Veteran’s adjustment disorder with mixed anxiety and depressed mood is related to service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for adjustment disorder with mixed anxiety and depressed mood is warranted. REASONS FOR REMAND 1. Service connection for a nerve condition. 2. Service connection for skin cancer. 3. Service connection for fibromyalgia. The Board finds that further development must be conducted prior to adjudication of the claims. To that effect, the Board’s November 2019 decision included a remand for the aforementioned claims, providing a request for a medical opinion addressing whether direct service connection due to herbicide exposure. While the December 2019 VA examiner provided an opinion addressing direct service connection, he failed to provide an opinion addressing the relationship between the Veteran’s condition(s) and presumed exposure to herbicide agents. Thus, the Board finds that there was not substantial compliance with the Board’s November 2019 remand directives and, having not properly considered the evidence of record, this leaves the December 2019 VA opinion not wholly adequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, a new medical opinion is warranted. The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the Veteran’s nerve condition, skin cancer, and fibromyalgia. (a.) The examiner should determine whether the Veteran has any nerve conditions, which may include pain alone that rises to the level of functional impairment. For a peripheral neuropathy condition, the examiner should distinguish whether it meets the definition of “early onset.” If peripheral neuropathy is found, the examiner should also address the relationship between that condition and any service-connected disability. The examiner should then opine for each nerve condition whether it is at least as likely as not (a 50 percent or greater probability) that had its onset during, or is otherwise related to, active service, to include presumed in-service herbicide exposure. In answering this question, the examiner is asked to not rely solely on whether the disorder is one for which a “presumption” is established and, instead, state whether the disorder is a result of Agent Orange exposure. Consideration should be given to evidence within the entire claims file. (b.) The examiner should then opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s skin disorder had its onset during, or is otherwise related to, active service, to include presumed in-service herbicide exposure. In answering this question, the examiner is asked to not rely solely on whether the disorder is one for which a “presumption” is established and, instead, state whether the disorder is a result of Agent Orange exposure. Consideration should be given to the Veteran’s lay testimony of an incidence where liquid was poured on him, being directly exposed to Agent Orange, and subsequently developing lesions on his legs. The examiner should provide a rationale for all opinions expressed, including by citing to the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.