Citation Nr: 21003880 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-02 198 DATE: January 25, 2021 ORDER Service connection for a left shoulder condition is denied. Service connection for a right shoulder condition is denied. Service connection for hypertension is granted. Service connection for a psychiatric disorder, variously diagnosed as depressive disorder, generalized anxiety disorder, and posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. The Veteran does not have a right or left shoulder condition resulting from injuries or any other event during service. 2. The Veteran’s hypertension is due to Agent Orange exposure in service. 3. The Veteran’s psychiatric disorder, variously diagnosed as depressive disorder, generalized anxiety disorder, and posttraumatic stress disorder (PTSD), is due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313. 4. The criteria for service connection for a psychiatric, variously diagnosed as depressive disorder, generalized anxiety disorder, and posttraumatic stress disorder (PTSD), is granted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to August 1969, including combat service in the Republic of Vietnam from July 1968 to August 1969. The case is on appeal from August 2015 and December 2015 rating decisions. A February 2016 notice of disagreement (NOD) was timely as to both decisions. The Board previously remanded these matters in January 2020. Service Connection 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, 1131; 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)). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Service connection for a left shoulder condition 2. Service connection for a right shoulder condition As issues 1-2 are interrelated, the Board will address them together. Specifically, the Veteran contends that he had injuries during two incidents in Vietnam. First, while on a mine sweeping operation, his unit was engaged by the enemy. He ran to seek cover under a truck but hit the front differential, which left him bruised and in pain for a week. A medic gave him aspirin. Second, he fell from a moving truck, hit the ground, and tumbled 5-6 times. See May 2016 statement. The Veteran has a current diagnosis in each shoulder. VA medical records from January 2015 show diagnoses of degenerative changes, bursitis, and tendonitis in both shoulders. A January 2020 VA examination confirmed a diagnosis of degenerative arthritis. The Veteran’s service treatment records (STRs) do not reflect the occurrence of either report injury. However, his service records show service in Vietnam as a combat engineer and combat demolition assistant. He participated in the 7th Counter Offensive. The Board finds that this evidence is consistent with the types, places, and circumstances of the injuries he described in his May 2016 statement. 38 U.S.C. § 1154(b). Hence, the Board finds that the injuries during service are established. Degenerative arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records first show a diagnosis of degenerative arthritis in September 2014, which was approximately 45 years after his separation from service. As this timeframe is outside of the applicable presumptive period, service connection on a chronic basis is not warranted. The Veteran has not reported a continuity of symptomatology. At a September 2014 VA consultation, the Veteran reported a history of bilateral shoulder pain for only 3 months. Hence, there is no evidence to support a continuity of symptoms since service. Although service connection may still be granted on a direct basis, the preponderance of the evidence is against finding that a nexus exists. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In January 2020, the Veteran underwent a VA examination. The VA examiner opined that the Veteran’s condition was less likely than not related to service. The examiner concluded that, after reviewing all medical records, there was no evidence to suggest a direct nexus of causality between the Veteran’s in-service injuries and the present actual bilateral shoulder condition. The examiner explained that bilateral shoulder osteoarthritis (degenerative joint disease) is a chronic condition that tends to progressively worse over time with the natural aging process and/or due to repetitive trauma. as seen in the medical literature. The examiner noted that degenerative joint disease radiographic findings do not develop in short periods of service (such as the instant Veteran’s). Rather, the condition is a long-standing process, and the actual bilateral shoulder conditions are more likely than not caused by age, obesity and occupational history, all of which predispose one to developed shoulder osteoarthritis (degenerative joint disease). The examiner explained that there was significant evidence in the medical literature to support the fact that actual bilateral shoulder conditions are considered part of the normal aging process in patients older than 40 years old. The examiner found it worth mentioning that that the Veteran’s current shoulder condition was diagnosed by X-ray several years after active duty service. The examiner reiterated that the findings of the both shoulders were more likely than not related to the natural process of aging. The examiner then stated it was important to mention that there was no evidence of continuity of treatment for the condition at least within 10 years after been released from active service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the examiner relied on an absence of a continuity of treatment after service, the examiner’s factual foundation is essentially accurate because, as indicated, the Veteran has not reported a continuity of treatment or symptoms. Moreover, it does not appear the VA examiner actually relied in any material way on an absence of symptomatology. To the contrary, the VA examiner materially relied on the fact that the Veteran’s condition is part of the normal aging process. The examiner only mentioned the absence of treatment incidentally and almost as an afterthought. On this basis, the opinion does not impermissibly rely on an absence of evidence as negative absence. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Otherwise, the Board can find no reason to call into question or otherwise discount the probative weight of the VA examiner’s opinion. Neither the Veteran nor the Board has the competence to dispute this VA examiner’s opinion as the nexus question at issue is not one that is capable of lay observation, within the common knowledge of a lay person, or otherwise within the competence of a non-medical expert. See Monzingo, 26 Vet. App. 97, 105-06 (2012). Thus, overall, the VA examiner’s opinion is afforded probative weight in establishing why, as a medical matter, a nexus in this case is unlikely. While the Veteran believes his shoulder condition is related to in-service injuries, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education and knowledge of the interaction between the multiple etiologies of arthritis, especially in the context of the Veteran’s specific case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In sum, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and therefore, the claim of service connection is denied. 3. Service connection for hypertension The Veteran contends that he has hypertension as a result of Agent Orange exposure in service. With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam War period. 38 C.F.R. § 3.307. For these Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents includes Ischemic heart disease, which does not encompass hypertension. 38 C.F.R. § 3.309(e), Note 2. However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the Veteran has a current diagnosis of hypertension as confirmed by a VA examiner most recently in January 2020. The Veteran is presumed to have been exposed to Agent Orange based on service in the Republic of Vietnam from July 1968 to August 1969. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). Hypertension is not a presumptive disease. Nonetheless, the January 2020 VA examiner opined that the condition was at least as likely as not related to the Veteran’s Agent Orange exposure. The VA examiner relied on the Veterans and Agent Orange: Update 11 (2018) from the National Academies of Science, Engineering and Medicine, which concluded: “After an examination of the literature that had been previously reviewed with the additional new evidence, the committee determined that there is sufficient evidence of an association between [Agent Orange] and hypertension.” Based this, the VA examiner found it reasonable to conclude that the Veteran’s hypertension is at least as likely as not related to the previous exposure to herbicide agent while in Vietnam. A different VA examiner in October 2015 gave a negative opinion, but only as to whether the Veteran’s hypertension was directly incurred during service. Otherwise, the examiner stated that hypertension is not a presumptive condition, which does not answer whether it is nonetheless related to Agent Orange exposure. Hence, this examiner’s opinion is essentially non-responsive on this question. Overall, the Board finds this evidence to be in equipoise in establishing that the Veteran’s hypertension is due to Agent Orange exposure during service. Hence, service connection is warranted, and the appeal is granted. 4. Service connection for a psychiatric disorder. The Veteran contends that he has a psychiatric disorder due to combat experiences in Vietnam. See 5/25/2016, 9/8/2014, 1/11/2017 statements. The VA medical records and VA examinations show diagnoses of depressive disorder, generalized anxiety disorder, and PTSD. See 2/23/2018 VAX; 5/1/2019 VA Psychiatry; 5/14/2019 VA Psychology; 1/2/2020 VA examination. The Veteran was not seen during service, but his service department records confirm he was in the Republic of Vietnam from July 1968 to August 1969 with “V” type service. He was a combat engineer. He participated in the 7th Counter Offensive. The Board finds that this evidence establishes participation in combat. Thus, the question becomes whether the current disability is related to service. On this question there is probative evidence in favor of and against the claim. VA examiners in August 2015, February 2018, and January 2020 concluded that the Veteran did not have a psychiatric diagnosis related to service. The August 2015 and February 2018 opinions are not highly probative as the VA examiners did not account for the Veteran’s credible report of symptoms since service. The January 2020 VA examiner’s opinion has some positive probative value. Most notably, the VA examiner reasoned that essentially that for 45 years after service there was no evident impairment of marital, family, social, or occupational functioning, so the Veteran’s diagnosed unspecified anxiety disorder had no nexus to his service. The Board observes that this is essentially a positive rationale. The examiner relied on the absence of any “evident impairment” impacting the Veteran’s functioning during the 45 years after service. However, the Veteran has stated that he had symptoms during the intervening 45 years. The VA examiner appeared to reason from the premise that the Veteran’s symptoms remained extant during the intervening 45 years even though the symptoms did not impact his marital, family, social, or occupational functioning. The examiner did not give a medical reason for why an “evident impairment” was needed to establish a nexus to service, and there is no legal reason for why service connection could not be granted in such a situation. Hence, on an overall reading, the January 2020 VA examiner’s opinion is essentially positive. Upon review of the record, the Board finds the positive evidence, especially the Veteran’s credible statements of symptoms since service and the January 2020 VA examiner’s essentially positive rationale, to at least be in equipoise as to whether the Veteran’s current condition is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.