Citation Nr: 21002008 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-22 311 DATE: January 12, 2021 ORDER Service connection for a psychiatric disability, other than posttraumatic stress disorder (PTSD), is granted. Service connection for colon polyps is denied. REMANDED Entitlement to an effective date earlier than September 26, 2019, for the grant of service connection for PTSD is remanded. FINDINGS OF FACT 1. The Veteran’s psychiatric disability had its onset in service. 2. The Veteran’s colon polyps were not present during service or for many years thereafter and are not otherwise etiologically related to service. CONCLUSION OF LAW 1. The criteria for service connection or a psychiatric disability, other than PTSD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for colon polyps have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1969 to April 1971, including service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and April 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in November 2017. This matter was previously remanded in August 2019 by the Board for additional development. 1. Service connection for a psychiatric disability, other than PTSD The Veteran filed a claim of service connection for PTSD in February 2014. The claim was denied in a July 2014 rating decision. The claim was remanded by the Board in August 2019 for updated records and a new VA psychiatric examination. In a June 2020 rating decision, the Veteran was granted service connection for PTSD, effective September 26, 2019, the date of the VA examination. In a June 2020 Supplemental Statement of the Case (SSOC), the RO listed the second issue on appeal as entitlement to service connection for PTSD prior to September 26, 2019. The Veteran’s claim of entitlement to service connection for PTSD prior to September 26, 2019, has been recharacterized to include all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran seeks an earlier effective date for service connection for his PTSD. Service connection was granted for PTSD in a June 2020 rating decision with an evaluation of 10 percent, effective September 26, 2019, the date of a VA psychiatric examination diagnosing PTSD resulting from military stressors. In a June 2020 SSOC, the claim to service connection for PTSD prior to September 26, 2019, was denied. However, the Board finds that there is substantial evidence in support of service connection for a psychiatric disability that had its onset earlier than September 26, 2019. The Veteran submitted a letter to the VA stating that he was being in February 2014 for his PTSD, depression and anxiety disorder. See February 2014 Correspondence. The Veteran was afforded a VA psychiatric examination in June 2014, in which PTSD was ruled out as a diagnosis as the symptoms did not meet the diagnostic criteria under DSM-5 criteria. In his November 2017 Board Hearing, the Veteran challenged the adequacy of the June 2014 VA psychiatric examination and July 2014 VA Medical Opinion, testifying that they were deficient in that the examiner conceded that Veteran’s stressors met criterion A & B and requirements for DSM 5 purposes, but failed to provide a response for criterion C. The Veteran also argued that the examiner’s own statements in the DBQ show the Veteran exhibited risky or destructive behavior, is hypervigilant, and had difficulty sleeping. Additionally, the Veteran argued that the examiner’s behavioral observations indicated the examination was not adequate, and the examiner did not take into consideration the Veteran’s previous employments. See November 2017 Hearing Transcript. In June 2020, the Veteran submitted a PTSD Review Disability Benefits Questionnaire from November 2017, in which a private examiner diagnoses Veteran with PTSD, along with mild depressive disorder, generalized anxiety disorder, and agoraphobia. The conditions were linked to Veteran’s military service. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (i.e., under the criteria of DSM); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The PTSD aspect of the Veteran’s psychiatric disability claim will be discussed in the remand section of this decision below. The Board notes that the Veteran has been diagnosed with psychiatric disabilities other than PTSD. See June 2014 VA Examination; see also November 2017 VA PTSD DBQ. The examinations verified Veteran’s stressors and noted relationships between in-service trauma and the Veteran’s current psychiatric symptoms. As the Veteran’s diagnoses of adjustment disorder, depressive disorder, anxiety disorder and agoraphobia have been attributed to his military service, the Board finds service connection is warranted for a psychiatric disability, other than PTSD, throughout the entire appeal period. 2. Service connection for colon polyps Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303 (b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran filed a service connection claim for colon polyps, which was denied by an April 2016 rating decision. He asserts that his colon polyps are due to herbicide exposure while on active duty service. See February 2017 Form 9. The Veteran’s service treatment records do not show any treatment or diagnosis for colon polyps during his active service. The Veterans medical records show that he was first noted to have colon polyps in 2000, almost 30 years after he separated from service. The Veteran was afforded a VA examination in April 2020. The examination noted Veteran’s medical history, which showed that he started to experience rectal bleeding periodically in the 1990s and underwent a colonoscopy which showed colon polyps in 2000. Two polyps were removed the first time, which were pre-cancerous; since then, Veteran has had colonoscopies done every 4 years or so and gets 1-2 polyps removed every time. His last colonoscopy was a couple of years ago, and Veteran denied a history of colon cancer. See April 2020 C&P Examination. The VA examiner opined that Veteran’s history of colon polyps are not related to his military service or Agent Orange (AO) exposure during service. Veteran was discharged from service in 1970 and was diagnosed with colon polyps in 2000, 30 years later. The examiner notes that there is no evidence the Veteran had colon polyps during service, and colon polyps are not presumptive conditions from AO exposure. As per medical literature, the Veteran’s advancing age, higher BMI and gender are considered risk factors for precancerous polyps; therefore the examiner concluded that the colon polyps are not etiologically related to or aggravated by his other service connected conditions such as diabetes, coronary artery disease, or sciatic nerve damage. Additionally, none of the symptoms reported by the Veteran are likely secondary to polyps; adenomatous polyps are neoplastic polyps, and adenomas are generally asymptomatic and are most often detected by colon cancer screening tests. The Veteran’s diverticulitis with bowel perforation leading to sigmoid sleeve resection is also unrelated to the colon polyps. The Board observes that the medical evidence does not suggest that the Veteran’s colon polyps is related to his period of active service or the result of a service-connected condition, or due to AO exposure while in service. The weight of the evidence shows that the Veteran’s colon polyps began many years after his period of service and was not caused by any incident of service. Service treatment records are negative for complaints, treatment or diagnosis of colon polyps. The Veteran’s colon polyps were neither incurred in nor aggravated by service. The Board finds that as a lay person, the Veteran lacks the requisite education, training, and experience needed to self-diagnose colon polyps or render an opinion as to its etiology. The Veteran is competent to speak on matters such as possible symptomatology, as well as having been told he was diagnosed with colon polyps or having seen or been told about intestinal or colon problems. See Davidson v. Shinseki, 581 F.3d 1313 (2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he merely asserted that his colon polyps are secondarily related to his service-connected disabilities or due to AO exposure. The Veteran did not report symptomatology while in service and did not report that his colon polyps were linked to any event, incident, or injury while in-service. Accordingly, the more competent evidence related to the nature and etiology of the Veteran’s colon polyps is the April 2020 examiner’s opinion. Absent any competent evidence against the examiner’s opinion, the Board finds that the preponderance of the evidence is against the claim for service connection for colon polyps, to include as due to Agent Orange exposure; there is no doubt to be resolved and service connection for colon polyps is denied. REASONS FOR REMAND Entitlement to an effective date earlier than September 26, 2019, for the grant of service connection for PTSD is remanded The effective date for an award of direct service connection shall, in general, be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The date on which evidence is submitted or received is irrelevant to this analysis. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000). The correct inquiry is determining when the facts found demonstrate that entitlement to service connection arose, i.e., the date to which the evidence refers, not the date the evidence demonstrating entitlement was submitted or received. Id.; see 38 U.S.C. § 5110(a) (“[T]he effective date of an award... shall be fixed in accordance with the facts found”). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (i.e., under the criteria of DSM); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Further, if a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). Here, the Veterans references the private examination from November 2017 in support of a claim for service connection to PTSD throughout the appeal period. However, a PTSD diagnosis for VA compensation purposes requires confirmation of stressors and support of a diagnosis by a VA psychiatrist or psychologist; that is not the case here as the November 2017 examiner was not a VA psychiatrist or psychologist. The Board notes that the Veteran is competent to provide lay statements of his psychiatric symptoms; however, he has not been shown to have the requisite medical training or knowledge to be deemed competent to diagnose distinct psychiatric disability. The record does not demonstrate that the Veteran has actual specialized knowledge of medicine in general, or psychiatry more particularly, and he is merely speculating as to whether he has a current diagnosis of PTSD. Cf. 38 C.F.R. § 4.125 (requiring that diagnosis of a mental disorder conform to DSM-5); Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). See also Sanchez-Navarro v. McDonald, 774 F.3d 1380, 1384 (Fed. Cir. 2014). In the September 2019 VA Medical Opinion regarding PTSD, the examiner held that the Veteran meets criteria for PTSD. In the rationale, the examiner held that according to the initial evaluation in January 2014, the claimant did not meet full criteria in the past due, in part, to a lack of avoidant symptoms and stressors that were inadequate; however, a subsequent evaluation determined that he met full criteria (report dated 2/15). See September 2019 C&P Exam. Additionally, in his August 2020 VA Form 9, the Veteran argued that multiple DBQs from as early as July 2014 indicate that Veteran had stressors from his active duty tour in Vietnam that were adequate to support the diagnosis of PTSD. The Veteran references the November 2017 DBQ submitted to the VA that contains remarks by the examiner about Veteran feeling removed from others, distant and having trouble sleeping after returning from Vietnam. The examiner also stated the Veteran did not recall any history of mental health diagnoses prior to his time in Vietnam. The Veteran argued that the evidence of record shows the Veteran has met the rating criteria for service connection to PTSD as early as February 2014 based on his medical examinations conducted in May 2014 and November 2017. The Veteran was granted service connection for PTSD in a June 2020 rating decision, with an effective date of September 26, 2019, the date of the VA examination which showed a diagnosis of PTSD by a VA psychologist. In assessing whether the evidence shows that the Veteran had PTSD prior to his current September 26, 2019 effective date for service connection, the Board notes that the record shows the Veteran has received treatment for an adjustment disorder and anxiety disorder in addition to various psychiatric symptoms since at least February 2014, but the record is negative for a diagnosis of PTSD before September 2019. Because a medical diagnosis of PTSD is needed to support a grant of service connection, the Board finds that a remand is necessary to obtain a retrospective medical opinion to determine the date of onset of the Veteran’s PTSD, in light of the September 2019 VA psychiatric examination that corroborates the Veteran’s PTSD stressors and the Veteran’s history of psychiatric treatment. See Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014) (service connection for PTSD requires medical evidence diagnosing the condition); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation). If it is found that the Veteran’s PTSD had onset before his current September 26, 2019 effective date, the Board finds that the evaluating clinician should also provide a retrospective medical opinion addressing the symptoms and severity of his PTSD for the relevant period—from the date of onset to September 26, 2019. Accordingly, the case is REMANDED for the following action: Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to obtain a retrospective opinion from an appropriate VA clinician as to (1) the date of onset of the Veteran’s PTSD, and (2) the nature and severity of the Veteran’s PTSD for the period under review (i.e., from the date of onset to September 26, 2019). In providing this opinion, the reviewing clinician is asked to consider the September 2019 VA Psychiatric Examination that corroborates the Veteran’s PTSD stressors and the Veteran’s psychiatric history, to include consideration of the lay statements of record. The claims file should be made available to the clinician and review of the file should be noted. All opinions provided should be supported by rationale. If the evaluating clinician is unable to provide an opinion without resort to speculation, the clinician should explain why that is so and note whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.