Citation Nr: 21004547 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-09 385 DATE: January 27, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), unspecified anxiety disorder, neurocognitive disorder and major depressive disorder is denied. Entitlement to service connection for a respiratory disorder, to include obstructive sleep apnea, including as secondary to exposure to herbicide agents (Agent Orange) is denied. REMANDED Entitlement to service connection for status post, oropharyngeal carcinoma (tongue cancer), including as secondary to exposure to herbicide agents (Agent Orange) is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam (RVN) during the Vietnam era, thus, his exposure to herbicide agents (Agent Orange) is presumed. 2. The Veteran does not have a current diagnosis of PTSD. 3. The preponderance of the evidence is against finding that the Veteran has a psychiatric disorder, to include unspecified anxiety disorder, neurocognitive disorder and major depressive disorder that had its onset in service or is otherwise related to service. 4. The Veteran does not have a respiratory cancer. 5. The preponderance of the evidence is against finding that the Veteran’s respiratory disorder, to include obstructive sleep apnea had its onset in service or is otherwise related to service, to include his exposure to herbicide agents (Agent Orange). CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, to include PTSD, unspecified anxiety disorder, neurocognitive disorder and major depressive disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a respiratory disorder, to include obstructive sleep apnea, to include as secondary exposure to herbicide agents (Agent Orange), are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to August 1966. He served honorably in the United States Air Force during the Vietnam Era, to include service in the Republic of Vietnam. He was awarded the National Defense Service Medal. The Board thanks the Veteran and his family for his service to our country. This matter is before the Board of Veteran’s Appeals (Board) from a November 2016 rating decision (RD) by the Department of Veteran Affairs (VA) Regional Office (RO), and have been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. In December 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. A transcript of the hearing is of record. During the hearing, the undersigned granted the motion to advance on docket the claims on appeal. The Veteran waived RO consideration of any and all new evidence added to his file. No new evidence on this matter was submitted to the VA on or after the hearing date. Service Connection – Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. Establishing direct service connection generally requires competent evidence of three elements: (1) a current 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); 38 U.S.C. §§ 1131, 1110; 38 C.F.R. § 3.303. Certain chronic diseases, including malignant tumors or cancer, 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. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 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 or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. In an October 2009 rating decision, the RO acknowledged the Veteran’s service in the Republic of Vietnam. Therefore, exposure to herbicide agents is also acknowledged. See RD Narrative received October 2009. If a veteran was exposed to an herbicide agent (including Agent Orange) during active service and has contracted an enumerated disability to a degree of 10 percent or more disabling at any time after service, service connection is warranted for certain specified disorder, including respiratory cancers (defined in the regulations as cancer of the lung, bronchus, larynx or trachea), even though there is no record of such disease during service. 38 U.S.C. § 1116 ; 38 C.F.R. § 3.307 (a)(6), 3.309(e). Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports and analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain conclusions with a reasoned medical explanation based on supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a psychiatric disorder, to include PTSD, unspecified anxiety disorder, neurocognitive disorder and major depressive disorder Construing the claim liberally, the Board finds that it should be characterized as one for service connection for a psychiatric disorder, to include PTSD, unspecified anxiety disorder, neurocognitive disorder and major depressive disorder, as it is the responsibility of the Board to consider alternate current conditions within the scope of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam order). The issue is thus restated and the Board will consider whether any diagnosed mental health disorder the Veteran may have is related to his military service. See C&P Exam received August 2016. The Veteran contends that his (PTSD) is related to military service. Specifically, he asserts that he has been told by a number of physicians, medical doctors, that they thought he had PTSD and some of his prescribed medications are used to treat PTSD. See NOD received December 2016; VA Form 21-526EZ received April 2016. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § § 4.125(a); 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. See 38 C.F.R. § § 3.304(f). 38 C.F.R. § 4.125(a) requires that the diagnosis of PTSD conform with the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5). Initially the Board notes that, although the Veteran has claimed service connection for PTSD, the preponderance of the evidence of record is against a finding that the Veteran has carried a diagnosis of PTSD that conform with the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5) at any time during or near in time to this appeal. VA treatment records show he sought treatment for PTSD in September 2015 based on a cardiologist’s question as to whether the Veteran had PTSD. At that time, the VA psychologist found that “there does not appear to a symptom constellation consistent with PTSD.” The psychologist suggested his symptoms were better explained by his medical conditions and their varies treatments and medications. Further, an April 2015 VA PTSD screen was negative. At most, at that time, the DSM-IV diagnosis was “r/o [rule out] PTSD”. Further, PTSD was not diagnosed by the August 2016 VA examiner who used DSM-5 criteria. In remarks, the examiner opined that the Veteran does not meet the DSM-5 diagnostic criteria for PTSD. However, the August 2016 VA examiner diagnosed unspecified anxiety and neurocognitive disorders. Also, records reveal that he was diagnosed with major depressive disorder in October 2015. Thus, a current disability exists. Shedden, 381 F.3d at 1163; 38 C.F.R. § 3.303. The question for the Board is whether a causal relationship or nexus exists between his current psychiatric disorder and his active military service. The Board concludes that the preponderance of the evidence is against a finding that the Veteran’s current psychiatric disorder was incurred in or caused by his active military service. The Veteran’s service treatment records (STRs) lack any reference, treatment and care for any psychiatric disorder. In his March 1966 report of medical examination (Report) for separation, the clinical evaluation for psychiatric was marked as “normal” by the provider. See STR received September 2015. Private treatment records show that in December 2008, a review of systems revealed no depression, anxiety or nervousness. In February 2010, the medical history indicated that the Veteran had a history of an anxiety disorder. In an August 2010 review of systems, the provider noted that the Veteran does not have any psychiatric problems or symptoms and the examination revealed no psychomotor mood, affect, speech, or thought impairments. For assessment, the provider noted anxiety state, unspecified. See Medical Treatment Record received September 2016; Medical Treatment Record received September 2009. VA treatment records indicated that in a September 2015 psychology note, the Veteran stated that he had great difficulty in having to quit work due to an unrelated illness and this is when he developed depression and anxiety. Also, he stated that his anxiety began after he was forced to retire. In an October 2015 social work note, the Veteran was listed as being diagnosed with anxiety disorder and major depressive disorder. See Capri received February 2017. In an August 2016 Disability Benefits Questionnaire (DBQ) for PTSD, the Veteran was diagnosed with unspecified anxiety disorder and neurocognitive disorder, mild. In the examination report, the Veteran reported symptoms of anxiety, chronic sleep impairment and mild memory loss. The examiner concluded it was less likely than not (less that 50 percent probability) that the Veteran’s diagnosed disorders was caused by or the result of his Vietnam service. The examiner opined that the Veteran reported traumatic incidents in Vietnam, but also reported that he worked as a contractor in Afghanistan, Iraq and Kuwait and once experienced a mortar hitting 12 feet away from his building. Also, the examiner opined that the Veteran did not report symptoms of anxiety until many years after his military service and during this time, he was employed as a military contractor in the Gulf War and conditions deteriorated. See C&P Exam received August 2016. In his December 2020 virtual Board hearing, the Veteran through his representative testified that although he does not have a current diagnosis of PTSD, he has other mental conditions. Also, the Veteran testified that he is on a lot of medications as a result of some horrible thoughts and that his treating physician indicated that he most likely has PTSD; however, he was never provided with any findings. See Correspondence received December 2020. The Board finds that the August 2016 DBQ and medical opinion are highly probative. In this regard, the conclusion is adequately explained and is based on an examination of the Veteran and a full review of the record. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinion is probative evidence in this matter, and therefore, very persuasive. Further, the Veteran is competent to describe his psychiatric symptoms such as anxiety and traumatic experiences in service and post service. However, as a lay person, he is not competent to diagnose a psychiatric disorder or determine its nature and/or cause or origin. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current psychiatric disorder was incurred or caused by, or otherwise related his active military service. 38 C.F.R. § 3.303. Thus, because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable in this case. Therefore, this claim on appeal is denied. Gilbert, 1 Vet. App. at 49; 38 U.S.C. § 5107(b), 38 C.F.R. §§ 3.102, 4.3, 4.7. 2. Entitlement to service connection for a respiratory disorder, to include obstructive sleep apnea as secondary to exposure to herbicide agents (Agent Orange) The Veteran contends that his respiratory disorder (claimed as respiratory cancer), to include obstructive sleep apnea is related to military service. Specifically, he asserts that he strongly believe that his respiratory problems (including unexplained respiratory infections and pneumonia) are direct related to exposure herbicide agents (Agent Orange) while servicing in the Republic of Vietnam, during the Vietnam War. See Correspondence received June 2019; VA Form 21-526EZ received April 2016. In June 2003, the record indicates that the Veteran was diagnosed with obstructive sleep apnea (OSA). Thus, a current disability exists. Shedden, 381 F.3d at 1163; 38 C.F.R. § 3.303. The Board notes that the preponderance of the evidence is against a finding that the Veteran has been diagnosed with a respiratory cancer. Therefore, the presumptive provisions related to herbicide exposure do not apply. Thus, the question for the Board is whether the Veteran’s respiratory disorder is otherwise related to service, to include exposure to herbicide agents (Agent Orange) while in service. The Veteran’s service treatment records (STRs) do not reflect any complaints, findings, treatment, or diagnosis of a respiratory disorder to include sleeping problems. In his March 1966 report of medical examination (Report) for separation, the clinical evaluation of the lung and chest was marked “normal.” See STR received September 2015. Private treatment records reveal that in 2003, he underwent a sleep study and subsequently, he was diagnosed with and received treatment for obstructive sleep apnea. See Medical Treatment Record received December 2016. In an October 2016 Disability Benefits Questionnaire (DBQ) for Respiratory Conditions (Other Than Tuberculosis and Sleep Apnea), the Veteran reported that he has never been diagnosed with lung problems, but that he has had shortness of breath sometimes. In the remarks, the examiner opined that there is not enough objective evidence given in either the “PFT or the DLCO” for a diagnosis at this time and the values do not meet requirement for any respiratory condition. See C&P Exam received October 2016. In the October 2016 VA medical opinion report, the examiner concluded it is less likely than not (less than 50 percent probability) that the Veteran’s current claimed condition of respiratory cancer was caused by herbicide exposure to Agent Orange while on active duty. For rationale, the examiner opined that the Veteran has not been diagnosed with a respiratory condition and also based on his pulmonary function test results 9/2016, there is no obstructive lung disease indicated by the FEV1/FVC ratio. See C&P Exam received October 2016. In his December 2020 virtual Board hearing, the Veteran testified that he has not been diagnosed with respiratory cancer, but he does have breathing issues and shortness of breath. Also, the Veteran testified that he was diagnosed with sleep apnea around 2005 and has had multiple sleep apnea test involving overnight stays at the hospital. Further, he testified that he believes that his sleep apnea is due to his exposure to Agent Orange while serving in the Republic of Vietnam. See Correspondence received December 2020. The Board finds the October 2016 DBQ and medical opinion with respect to the Veteran’s claimed respiratory cancer is entitled to great probative weight. In this regard, the 2016 DBQ and opinion were provided following examination of the Veteran and the examiner considered the Veteran’s medical records. Also, the examiner provided a conclusive opinion, and offered clear reasoning explaining why the Veteran’s claimed respiratory cancer is not related to service. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The 2016 DBQ and opinion are probative evidence in this matter, and therefore, persuasive. Further, although the Veteran is competent to describe symptoms he has personally observed or experienced, his lay observation as to the nature and/or cause or origin of his respiratory disorder is not competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). With respect to sleep apnea, a VA examination and/or medical opinion has not been conducted. However, there is no basis in the record to order any more VA examinations under 38 C.F.R. § 3.159 with respect to the claim for service connection for a respiratory disability. There is also no evidence, other than his statements, indicating the Veteran's current respiratory disability is related to service, to include herbicide exposure. As a result, no VA examination and/or medical opinion is required with respect to this claim. McLendon v. Nicholson, 20 Vet. App. 70 (2006). Generalized lay allegations are not sufficient to meet the McLendon standard, even though medical evidence is not necessarily required. Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). In light of the law and evidence, service connection is not warranted for the Veteran’s current respiratory disorder. Hence, because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable in this case. Thus, this claim on appeal is denied. Gilbert, 1 Vet. App. at 49; 38 U.S.C. § 5107(b), 38 C.F.R. §§ 3.102, 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for status post, oropharyngeal carcinoma (tongue cancer) as secondary to exposure to herbicide agents (Agent Orange) is remanded. The Veteran contends that his throat disability is related to military service. He has been diagnosed with squamous cell carcinoma of the tongue. Specifically, he asserts that his throat issues began many years earlier than what’s in the record. Also, he asserts that his throat issues are directly related to exposure to herbicide agents (Agent Orange) while serving in the Republic of Vietnam during the Vietnam War. See NOD received December 2016; VA Form 21-526EZ received April 2016. In the October 2016 VA medical opinion report, the opinion provider concluded that it is at least as likely as not (50 percent probability or greater) the Veteran’s current tongue cancer disorder was related to his claimed sarcoma of the throat or caused by herbicide exposure to Agent Orange that incurred during active military service. No rationale was provided. The Board finds this opinion inadequate for VA purposes because the examiner did not provide an adequate rationale for her conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Also see C&P Exam received October 2016. The matter is REMANDED for the following actions: 1. Obtain any of the Veteran’s updated VA and non-VA treatment records. 2. Schedule the Veteran for a medical opinion by an appropriate clinician to determine the current etiology of his squamous cell carcinoma of the tongue. The clinician should provide an opinion which addresses the following: i. Is it at least as likely as not (50% probability or greater) that the Veteran’s squamous cell carcinoma of the tongue is related to service, to include presumed herbicide exposure in service? The clinician is advised that the sole basis of a negative opinion cannot be that tongue cancer is not on the list of diseases subject to presumptive service connection based on exposure to herbicide agents. A complete rationale for the opinion must be provided. 3. Thereafter, readjudicate the issue on appeal with review of all evidence received since the last prior adjudication of the Veteran’s claim. If any benefit sought is not granted, furnish the Veteran and her representative with a supplemental statement of the case. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. D. Hayes, 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.