Citation Nr: 21004761 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-38 351 DATE: January 28, 2021 ORDER Entitlement to service connection for depression is denied. Entitlement to service connection for a prostate condition is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The most probative evidence is against a finding that the Veteran has a current depression that is related to service. 2. The preponderance of the evidence is against finding that benign prostatic hypertrophy is related to service or caused or aggravated by service connected hemorrhoids with proctitis. CONCLUSIONS OF LAW 1. The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a prostate condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. This matter was last before the Board in March 2020, when it was remanded for further development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c) (2019). 38 U.S.C. § 7107(a)(2) (2012). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Entitlement to service connection for depression The Veteran contends that he suffers from depression that began in service or is related to service. He reported various stressors, including witnessing people loading body bags into aircrafts and a shooting incident. As an initial matter, the Board finds that the Veteran has a current disability, diagnosed as unspecified depressive disorder as indicated in a July 2014 treatment record. Accordingly, the first criterion for service connection, a current disability, has been met. The question becomes whether the Veteran’s acquired psychiatric disorder is related to service. On this question, a review of the Veteran’s service treatment records (STRs) does not show that the Veteran had a psychiatry consultation in-service. In his March 1969 separation examination he marked “no” for depression or excessive worry. In March 2004, the Veteran was afforded a VA examination. The Veteran reported that ever since his significant other passed away in June 1993, he has been pretty much depressed. The examiner diagnosed mixed personality disorder and found the Veteran did not meet the criteria for a PTSD diagnosis. In April 2015, the Veteran was afforded another VA mental disorders examination. The Veteran reported previous mental health treatment in the late 1980's. He reported being prescribed L-tryptophan. Additionally, he reported he had just moved to California was having a hard time in his relationship at the time. The examiner noted that the Veteran has no current diagnosis of mental disorder. Following the March 2020 remand, an addendum opinion was obtained. The March 2020 VA examiner noted that the two previous VA psychological evaluations provided different information regarding the Veteran's past mental health history, as one indicated no mental health treatment as of 2004 and the other indicated mental health treatment in the late 1980s related to relational problems. The examiner notes that the only information we have is indicative of mental health issues in the late 1980s that started many years after the veteran's military service. Additionally, the examiner noted that the issues he was dealing with were situational problems and unrelated to his military service. The examiner opined that it is less likely that the treatment the Veteran has received for depression manifested in service or is otherwise related to service. The opinion was provided following review of the claims file and examination of the Veteran and included a rationale for the conclusions reached. There is no medical opinion to the contrary. The Board notes that the Veteran stated that he did not mention depression at discharge because he did not want to be held over. However, he provided multiple positive responses on the separation report of medical history to various conditions yet denied depression or excessive worry. As such, the Board does not find his contention to be persuasive. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). While the Veteran believes that his depressive disorder is related to service, as a lay person the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the diagnosis and etiology of psychiatric disorders, to include depression, are matters that require medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his current disability is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the March 2020 opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In sum, the preponderance of the probative evidence is against a finding that the Veteran’s current depressive disorder is related to service. Accordingly, the claim for service connection is denied.   In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to service connection for a prostate condition The Veteran seeks service connection for a prostate condition, which he generally contends was incurred in or caused by military service, to include as due to presumed exposure to herbicide agents while serving in the Republic of Vietnam. 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.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Although prostate cancer is a disease presumptively associated with herbicide agent exposure, other prostate disabilities are not. 38 C.F.R. § 3.309(e). The Board finds that the preponderance of the evidence weighs against finding that service connection for a prostate condition is warranted. Initially, the Veteran does not contend and the evidence does not reflect that he has been diagnosed with prostate cancer. Thus, service connection based on herbicide agent presumptions is not warranted. 38 C.F.R. § 3.309(e). An August 2014 treatment notes indicates that the Veteran was assessed with benign prostatic hypertrophy (BPH) with minimal symptoms. A July 2020 VA examiner confirmed a current diagnosis of BPH. The question turns to whether the Veteran’s BPH is related to service or to his service-connected hemorrhoids with proctitis. The Veteran’s service treatment medical records including separation examination were silent for lower urinary tract symptoms or prostate disability. The Veteran was afforded a VA examination in July 2020. The examiner opined that it is less likely than not that the Veteran’s prostate condition is due to exposure to herbicides during service as the condition is age related and developed in 2010. In August 2020, the VA examiner opined that the Veteran’s BPH is less likely than not proximately due to, the result of, or aggravated by the Veteran’s service connected hemorrhoids with proctitis. The examiner noted that the Veteran started having BPH around 2010, 30 years after his diagnosis of hemorrhoids with proctitis, and that the condition is related to getting older. He noted that proctitis and hemorrhoids are rectal conditions, not prostate conditions, and that proctitis is frequently sexually transmitted. He concluded that BPH is unrelated to proctitis or hemorrhoids. The opinions were provided following review of the claims file and examination of the Veteran and included a rationale for the conclusions reached. There is no medical opinion to the contrary. While the Veteran believes that his prostate condition related to service or secondary to hemorrhoids with proctitis, as a lay person the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the diagnosis and etiology of BPH are matters that require medical training and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In sum, the preponderance of the probative evidence is against a finding that the Veteran’s current prostate condition is related to service. Accordingly, the claim for service connection is denied.   In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 3. Entitlement to service connection for hypertension The Board finds that an addendum opinion is needed on the claim for service connection for hypertension. While an opinion was obtained in July 2020, the rationale for the conclusion that the condition was not related to herbicide agent exposure appears to be that hypertension was not shown during service. However, an explanation as to why the currently diagnosed hypertension is not etiologically related to prior herbicide agent exposure is needed. Additionally, the rationale for the conclusion that the condition was not aggravated by his service-connected heart condition was insufficient as it was based on the date of diagnosis of a heart condition being after hypertension. However, an explanation as to why the current hypertension has not been worsened by the now diagnosed heart condition was not provided. Thus, the matter is REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Obtain an addendum medical opinion on the claim for service connection for hypertension. If a new examination is deemed necessary to respond to the questions presented, one should be scheduled. After review of the claims file, the examiner should respond to the following: a. The examiner should explain why the Veteran’s current hypertension is or is not etiologically related to his in-service herbicide agent exposure, even though it was not diagnosed until years after service. b. Is it at least as likely as not that the Veteran's hypertension is worsened beyond natural progression (aggravated) by his service-connected heart disability? If the examiner finds that the Veteran's hypertension was aggravated by his service-connected heart disability the examiner should attempt to indicate the baseline level of the hypertension prior to the aggravation. 3. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.