Citation Nr: 21004120 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-20 897 DATE: January 26, 2021 ORDER Entitlement to service connection for neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified is granted. Entitlement to service connection for prostate disability is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified began during active service. 2. The Veteran’s prostate disability did not have its onset in service and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for prostate disability are not met. 38 U.S.C. §§ 1110, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to July 1970, which includes service in the Republic of Vietnam. His awards include the Army Commendation Medal. These matters initially came before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision. The Veteran requested a Board hearing before a Veterans Law Judge on his May 2015 substantive appeal (VA Form 9). He withdrew his Board hearing request in September 2016. In June 2018, the Board granted the Veteran’s application to reopen the claim of service connection for prostate disability. The Board remanded the underlying issue of entitlement to service connection for prostate disability, as well as the issue of entitlement to service connection for psychiatric disability, for further development. Specifically, the Board directed the agency of original jurisdiction (AOJ) to, among other things, ask the Veteran whether he wished to attend a hearing with a Decision Review Officer (DRO) and schedule any such requested hearing, ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records (to include records from Dr. Cuadrado), obtain the Veteran’s complete service personnel records, obtain his outstanding VA treatment records, and afford him a VA examination to determine the nature of any current prostate disability and to obtain a medical opinion as to whether any such disability is related to service. Pursuant to the Board’s remand, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records (including records from Dr. Cuadrado) by way of an April 2019 letter. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letter. Moreover, his service personnel records and outstanding VA treatment records were obtained and associated with his claims file, he was afforded a VA prostate examination in June 2019, and a medical opinion was provided as to whether his claimed prostate disability is related to service. As explained in more detail below, the Board finds the June 2019 opinion to be adequate and of substantial probative value. Lastly, the AOJ asked the Veteran to clarify whether he wished to attend a DRO hearing by way of a December 2019 letter. The Veteran did not respond to this letter. Therefore, the AOJ substantially complied with the Board’s pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service “in the Republic of Vietnam” includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A (a). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; Hodgkin’s disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma); parkinsonism; bladder cancer; and hypothyroidism. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309 (e). Although entitlement to service connection on the presumptive basis noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). 1. Entitlement to service connection for neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified The Board finds, for the following reasons, that the Veteran experiences current neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified, and that the evidence is at least evenly balanced as to whether these disabilities began during active service. Medical records, including a January 2015 VA psychology note, a September 2019 VA psychiatric progress note, and the report of an August 2020 VA psychiatric examination, reflect that the Veteran experiences neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified. Therefore, current psychiatric disabilities have been demonstrated. There is also evidence of psychiatric stressors in service and evidence of psychiatric symptoms that began around the time of the Veteran’s separation from service and have continued in the years since that time. In this regard, the Veteran’s DD Form 214 and service personnel records indicate that he served in Vietnam from June 1969 to July 1970 and that his military occupational specialty was a combat engineer. He has reported that he witnessed combat-related incidents during his time in Vietnam (e.g., he reported during an October 2014 VA psychiatric examination that he witnessed another soldier hit an enemy soldier with his rifle). Moreover, the Veteran’s post-service medical records and lay statements indicate that he began to experience psychiatric symptoms around the time of his separation from service and that such symptoms have continued in the years since that time. For instance, a January 2020 VA psychiatry note reflects that the Veteran’s sister had witnessed the Veteran spend weeks in isolation in his room and away from his family when he returned from Vietnam, and that this was noted by his family as being a marked change from his previous baseline behavior. Also, in a March 2014 statement (VA Form 21-4138), Dr. Cuadrado reported that the Veteran had been experiencing insomnia ever since his Vietnam service. The Veteran is competent to report psychiatric stressors in service and continuous psychiatric symptoms in the years since service and his family members are competent to report their observations of the Veteran’s symptoms and behaviors immediately upon his return from service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is nothing to explicitly contradict these reports and they are consistent with the evidence of record. Thus, in light of the Veteran’s confirmed Vietnam service and the observations of his family members immediately upon his return from Vietnam, the Board finds that the reports of psychiatric stressors in service, psychiatric symptoms around the time of his separation from service, and continuous psychiatric symptoms in the years since service are credible. The psychiatrist who conducted the October 2014 VA psychiatric examination opined that the Veteran’s claimed psychiatric disability was not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. The examiner reasoned, in pertinent part, that there was no evidence of psychiatric complaints, findings, or treatment during service or within one year after discharge from service. The Veteran sought psychiatric care around 2013, which was forty-three years after military service, and there was no relation between service and the psychiatric condition diagnosed around 2013. There was no evidence in the Veteran’s records showing that his mild neurocognitive disorder started in service or was related to any incident during service. His diagnosed disability is a neurological disorder associated with a “degenerative and deposit of mielinic material.” This neuro degenerative condition, in terms of etiology and pathophysiology, is not at all related to military service. The psychiatrist who conducted the August 2020 VA psychiatric examination opined that the Veteran’s claimed psychiatric disability was not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. The examiner reasoned that there was no evidence of psychiatric complaints, findings, or treatment during service or within one year after discharge from service. The Veteran sought psychiatric care in 2008 and there was no evidence in medical literature of any pathophysiologic relationship between his neuropsychiatric disability and military service. The October 2014 and August 2020 opinions are of little, if any, probative value because they are partially based upon an inaccurate history. Specifically, although the October 2014 and August 2020 examiners reasoned that there was no evidence of psychiatric problems in the Veteran’s treatment records until 2013 and 2008, respectively, a history of depression is noted in his treatment records as early as 2005 (see a June 2005 VA primary care note). Therefore, the October 2014 and August 2020 opinions are partially based on an inaccurate history and are of little probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Moreover, the opinions are largely based on the absence of evidence of treatment for psychiatric problems in service and for many years following service, and they do not take into account the competent and credible lay reports of observable behavior changes immediately upon the Veteran’s return from Vietnam and continuous insomnia in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In sum, the evidence reflects that the Veteran experienced psychiatric stressors in service, that he began to experience psychiatric symptoms around the time of his separation from service, and that he has experienced continuous symptoms in the years since that time. He has also been diagnosed as having current neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified. There are no adequate medical opinions contrary to a conclusion that these disabilities had their onset in service. Thus, the evidence is at least evenly balanced as to whether these disabilities had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). The Board notes that the benefit granted herein is service connection for neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified, and that the Veteran has also claimed service connection for PTSD. Nevertheless, given that there is no evidence to distinguish between all of the symptoms of the Veteran’s psychiatric disabilities, a separate decision as to entitlement to service connection for psychiatric disability other than neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Therefore, in applying the benefit of the doubt doctrine, all the Veteran’s psychiatric symptoms must, therefore, be attributed to his now service-connected neurocognitive disorder, major depressive disorder with psychotic features, and anxiety disorder unspecified. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). 2. Entitlement to service connection for prostate disability The question for the Board is whether the Veteran has current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds, for the following reasons, that, while there is evidence that the Veteran has current prostate disability, the claimed prostate disability is not shown to have had its onset in service or to be otherwise related to a disease or injury in service. The report of the June 2019 VA prostate examination shows that the Veteran experiences benign prostatic hypertrophy. Thus, current prostate disability has been demonstrated. The Veteran has vaguely suggested that his prostate disability had its onset in service and has continued in the years since that time. For example, he reported on his April 2014 VA Form 21-526 that he been receiving VA treatment for his prostate since December 1969 and that he had been experiencing a prostate condition “since active duty to present.” He is competent to report the history of his claimed prostate disability (including a continuity of symptomatology in the years since service). However, his reports must be weighed against the other evidence of record and their credibility must be assessed. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. The Veteran has not reported any specific symptoms of prostate disability that have existed ever since service. There is no evidence of any complaints of or treatment for prostate problems in his service treatment records and his July 1970 separation examination did not reveal any prostate abnormalities. Also, the earliest clinical evidence of prostate problems following service is reflected in the report of the June 2019 VA prostate examination, which indicates that the Veteran experienced a history of elevated prostate specific antigen (PSA) levels prior to 2006. There is no evidence of any earlier treatment for prostate problems following service. The Board acknowledges that there is lay evidence of earlier prostate symptoms in that the Veteran has suggested a continuity of prostate symptomatology in the years since service. As explained below, however, the Board finds that the Veteran’s reports as to the history of his claimed prostate disability (to include his reports of a continuity of symptomatology in the years since service) are not credible. The absence of any clinical evidence of prostate problems for over three decades after the Veteran’s separation from active service in July 1970 is one factor weighing against a finding that his current prostate disability was present in service or in the year or years immediately after service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue).” Moreover, the Veteran has provided information and statements which are inconsistent with his reports of a continuity of prostate symptomatology in the years since service. As explained above, he has reported that he has received continuous VA treatment for unspecified prostate symptoms in the years since service. However, a review of his VA treatment records reflects that he initially applied for VA outpatient treatment in March 1971 (see a March 1971 “Veterans Administration Application for Outpatient Treatment” (VA Form 10-2827)). At the time of his March 1971 application, he only reported that he was seeking treatment for dental problems. Also, he reported on a July 1971 “Health Questionnaire for Dental Outpatients” that he was not under the care of a physician for any condition. In light of the absence of any evidence of treatment for prostate problems in the Veteran’s service treatment records, the fact that his July 1970 separation examination did not reflect any prostate abnormalities, the absence of any clinical evidence of prostate problems for over three decades following his separation from service in July 1970, and the information and statements provided by the Veteran that are inconsistent with his reports of a continuity of prostate symptomatology in the years since service, the Board concludes that his reports concerning the history of his claimed prostate disability (including any reports of a continuity of symptomatology in the years since service) are not credible. The Veteran primary contends that his prostate disability is related to his exposure to herbicide agents in service. As he served in Vietnam during the Vietnam War era, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). The Veteran does not have any current prostate disability that is included on the list of diseases which are presumed to be associated with herbicide agent exposure. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309 (e). With respect to whether his claimed prostate disability is otherwise related to his exposure to herbicide agents in service, the competent, probative opinion on whether there is any such relationship weighs against the claim. The physician who conducted the June 2019 VA prostate examination opined that it was not likely (“less likely than not”) that the Veteran’s prostate disability began during service or was otherwise related to service, including presumed exposure to herbicide agents (including Agent Orange). He reasoned that the Institute of Medicine, in its study of the effects of Agent Orange, did not consider benign prostatic hypertrophy or elevated PSA levels as being caused by exposure to herbicides. The June 2019 opinion does not explicitly acknowledge or discuss the Veteran’s reports of a continuity of prostate symptomatology in the years since service. However, as explained above, any reports of a continuity of prostate symptomatology are not deemed to be credible and an opinion based on such an inaccurate history would be inadequate. See Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Moreover, the June 2019 opinion is based upon an examination of the Veteran, a review of his treatment records, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, the June 2019 opinion is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Additionally, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive question presented in this case (i.e., whether any relationship exists between the Veteran’s prostate disability and service, to include his presumed exposure to herbicide agents) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). An opinion as to whether there is a link between the Veteran’s claimed prostate disability and service, where there is no credible evidence of any such disability for over three decades after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance. (CONTINUED ON NEXT PAGE) There is no other evidence of a relationship between the Veteran’s prostate disability and service, and neither he nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran’s claimed prostate disability had its onset in service or is otherwise related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and service connection for prostate disability is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.