Citation Nr: 21062398 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-46 585 DATE: October 7, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for skin cancer, to include as due to in-service sun exposure, is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for left upper extremity (LUE) radiculopathy, to include as secondary to a neck disability, is remanded. Entitlement to service connection for right upper extremity (RUE) radiculopathy, to include as secondary to a neck disability, is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. FINDING OF FACT Resolving all reasonable doubt favor of the Veteran, his currently diagnosed generalized anxiety disorder and persistent depressive disorder are etiologically related to his in-service traumatic military experiences. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and PTSD, have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from November 1983 to August 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Jurisdiction of the case is now before the RO in Anchorage, Alaska. The Board notes that 13 issues were addressed in the statement of the case issued in June 2017; however, in his August 2017 VA Form 9, the Veteran limited his appeal to the issues identified above. As such, the issues of entitlement to service connection for a back disability, a left hip disability, cerebrovascular accident, hypertension, and a digestive disability and entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities are not before the Board. In a March 2020 correspondence, the Veteran's attorney, on behalf of the Veteran, withdrew the Veteran's request for a Board hearing. In March 2020, the Veteran submitted additional evidence in support of his appeal along with a signed waiver of RO consideration of evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1305. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's favorable decision in granting service connection for an acquired psychiatric disorder, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and PTSD The Veteran asserts that his current psychiatric disorder was caused by his in-service traumatic military experiences. Specifically, the Veteran described how he feared being exposed as a gay and the ramifications of such exposure. As a military policeman, the Veteran said that he observed the investigations of other servicemen for their sexuality and had friends who had been investigated. On a few occasions, the Veteran also felt that he was being investigated, and even felt that he was being set up by his superiors to be revealed as gay. The Veteran said that he had heard from other Marines their derogatory comments towards gay people and their bragging about beating up suspected gay civilians at a known location where gay people would gather. He said that during service, he was constantly on guard, and he experienced stress, harassment, and humiliation. He said that he did not discuss his sexuality with a chaplain, physician, or anyone else, because he did not trust that his secret would not be reported to his command. Because of his experiences, the Veteran said that he feared for his life all the time. He said that he complained about his symptoms of anxiety and depression during service. See August 2014 Veteran's statement. After service, the Veteran described how he had a "nervous breakdown" in 1987. He said that he quit college and was "extremely sullen and depressed." He said following service, he sought treatment for his mental health problems in 1987. Id. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition; 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). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). See 38 C.F.R. § 3.304(f). The question before the Board is whether the Veteran's acquired psychiatric disorder is etiologically related to active duty service. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor, service connection for an acquired psychiatric disorder is warranted. The Veteran's DD Form 214 reflects that his military occupational specialty was Military Policeman. The Veteran's service treatment records document that he entered active duty service with normal psychiatric clinical evaluation results. See March 1983 enlistment examination. According to a November 1986 Emergency Care and Treatment Record, the Veteran complained of being under "a lot of stress" and how that morning, he felt "fluttering" over his chest, which lasted five seconds. His electrocardiogram was within normal limits. The treating physician diagnosed the Veteran with possible anxiety syndrome. At the Veteran's August 1987 separation examination, his psychiatric clinical evaluation results were normal, and no pertinent symptomatology was reported on his associated report of medical history. In November 1987, the Veteran received psychiatric treatment at a VA clinic. He reported feeling depressed. A November 1987 VA progress note documents how a VA licensed clinical social worker (LCSW) had tried to contact the Veteran about an appointment and left a message with his sister. The Veteran called back in a "rage" and said that the VA LCSW should have known not to call. He was afraid that his family would learn he was seeking treatment. The VA LCSW noted that the Veteran was agitated, became verbally abusive and reported his intent not to return to the clinic. The VA LCSW found that the Veteran displayed strong paranoia, which was not seen in his original visit. A December 1990 VA treatment record documented that the Veteran had problems with anxiety, sexual identity, and what people thought about him. VA treatment records from 2014 to 2017 document the Veteran's treatment for symptoms of depression and anxiety. He received diagnoses for generalized anxiety disorder and adjustment disorder with depressed mood. See June 2014 VA Mental Health Note. In an August 2014 Mental Health Counselor memorandum, the private counselor noted that the Veteran was enrolled in the facility's mental health services. The Veteran had been diagnosed with and was being treated for major depressive disorder and PTSD. At an August 2014 VA psychiatric examination, the VA examiner found that the Veteran had presented with anxiety and depression, and that his history of anxiety preceded his more recent stressors (i.e., his mother's death and his move to Portland). The August 2014 VA examiner noted that the Veteran had reported being stressed out in the year following his departure from the military and having a conflict with his family of origin. The Veteran also reported a five-year history of alcohol dependence and cannabis abuse. He was reportedly abstinent for the past four months. Following an objective evaluation, the August 2014 VA examiner diagnosed the Veteran with adjustment disorder, mixed emotional features, generalized anxiety disorder, and polysubstance abuse. The August 2014 VA examiner opined that the Veteran's acquired psychiatric disorder was less likely than not incurred in or caused by active duty service. In providing a rationale, the August 2014 VA examiner found that the Veteran presented with symptoms of generalized anxiety disorder, situational anxiety, and depression related to immediate life stressors. Regarding the Veteran's in-service November 1986 treatment note, the August 2014 VA examiner found that the Veteran's "five-second episode" with "fluttering" sensation was related to a physical event and may have been associated with anxiety, but there were no further referral or notations made, the Veteran did not report a history of panic episodes, and his complaint did not recur during service. Finding that the Veteran's records did not establish continuing care for an anxiety condition following military service and recent records noted anxiety and depression due to current life adjustment issues, the August 2014 VA examiner concluded that it was not possible to relate the Veteran's symptoms to miliary service. At a January 2017 VA psychiatric examination, the Veteran reported his in-service traumatic experiences due to his fear of his sexuality being exposed. Following an objective evaluation, the January 2017 VA examiner diagnosed the Veteran with generalized anxiety disorder and other specified depressive disorder. The January 2017 VA examiner opined that the Veteran's acquired psychiatric disorder was less likely than not incurred in or caused by active duty service. In providing a rationale, the January 2017 VA examiner discussed the Veteran's November 1986 treatment note documenting possible anxiety syndrome following a complaint of five-second fluttering of the heart, the Veteran's report at the present examination that his anxiety was due to his fear of exposure as bisexual during service, and the Veteran's report that a family rift developed a couple of years after discharge, when one brother confronted the other brother for molesting the Veteran as a child. The January 2017 VA examiner noted that the Veteran did not have any mental health issues on his exit examination from the military. The January 2017 VA examiner indicated that medical records within one year of the Veteran's discharge were not available for review. The Veteran's December 1990 VA treatment record for sexual identity and anxiety was available for review by the January 2017. Overall, the January 2017 VA examiner concluded that there was no nexus between the Veteran's military career and his current symptoms of anxiety and depression. In January 2020, the Veteran underwent a private psychological evaluation by Dr. J.S., who is a board certified clinical psychologist. Dr. J.S. summarized the Veteran's reported military traumatic experiences as described in his August 2014 and October 2019 statements as well as during the telephonic clinical interview. Dr. J.S. also discussed the Veteran's reported symptoms upon returning from service, in which he described being extremely angry, anxious, humiliated, and hopeless, and feeling as if he was constantly having a breakdown. Comparing the Veteran's behavior prior to entering service to how he behaved after service, Dr. J.S. found that the Veteran was clearly behaving and thinking in a much different manner than when he entered the service. Dr. J.S. determined that the Veteran's in-service experiences had scarred him, leaving a legacy of rage, distrust, and humiliation that set him up for future conflicts and misinterpretations of people's actions. His only marriage ended in divorce with a reportedly very bitter break up after two and a half years. He had very few friends. Dr. J.S. determined that the Veteran's marked distrust and bitterness that characterized and finally ruined his marriage was typical of the dynamics that damaged or destroyed most of the Veteran's social relationships. Dr. J.S. summarized the Veteran's treatment and diagnoses for mental health problems, including his November 1987 treatment. Noting that the Veteran had endorsed alcohol use, which had continued up to 15 days prior to the present evaluation, Dr. J.S. opined that the Veteran's abuse of alcohol was seen largely as a dysfunctional attempt to cope with his psychiatric disorders as a form of self-medication. Following an objective evaluation, Dr. J.S. diagnosed the Veteran with generalized anxiety disorder, persistent depressive disorder, and alcohol use disorder, in recent remission, by Veteran's account. Upon reviewing the August 2014 and January 2017 VA examiners' opinions, Dr. J.S. found that the opinions appeared to give little to no weight to the Veteran's reports of severe and repeated instances of abuse and humiliation to which the Veteran was subjected during military service. Dr. J.S. found it significant that both VA examiners had the Veteran's August 2014 statement, in which he detailed his in-service military experiences, to review. In addition, the Veteran explained how he was unable to talk to anyone about his fear that his sexuality would be revealed. Further, Dr. J.S. determined that it would have been foolish of the Veteran to report his concerns to his superiors given that he had learned not to trust people who made clear that gay people had no role in the military and should be eliminated. Regarding the August 2014 VA examiner's opinion, Dr. J.S. found that the opinion focused only on the situational stress of bereavement following the Veteran's mother's death when diagnosing adjustment disorder, mixed emotional features. While Dr. J.S. agreed that the stressor was relevant, Dr. J.S. found that the August 2014 VA examiner had ignored the Veteran's reports of highly significant and disruptive symptoms as startle and poor sleep, which were clearly related to military service, not merely to situational stressors. Similarly, Dr. J.S. determined that the January 2017 VA examiner also disregarded the Veteran's August 2014 statement. In addition, the January 2017 VA examiner did not review the medical records of the Veteran's psychiatric care right after service. Overall, Dr. J.S. opined that it was at least as likely as not that the Veteran's generalized anxiety disorder and persistent depressive disorder were due to or related to his military service. Dr. J.S. found that after reviewing the complete record, the record of care clearly showed that the marked depression, anxiety, and serious life functioning deficits were evident immediately following the Veteran's service as well as during his service. The Veteran entered service with no psychiatric symptoms or diagnoses as documented in his March 1983 enlistment examination, during service, in a November 1982 treatment note, he stated that he was under "a lot of stress," and soon after he was discharged, in November 1987, he reported feeling depressed and unable to trust anyone. Dr. J.S. concluded that the "absence of documented psychiatric disorders prior to entering the military, coupled with the evidence of same shortly after leaving the military, clearly suggests a nexus for Veteran's service experiences significantly contributing to his now documented psychiatric problems." Now, the Board recognizes that the record includes conflicting medical opinions concerning whether the Veteran has a current acquired psychiatric disorder, which is etiologically related to his active duty service. With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In this case, the Board finds that the January 2020 private opinion provides the most probative evidence as to the etiology of the Veteran's current acquired psychiatric disorder. On that basis, the Board finds that the January 2020 private opinion was provided by a board-certified licensed psychologist, who conducted an objective evaluation, reviewed all of the pertinent information, including the Veteran's lay reports and medical records, and supported his conclusions with a thoroughly comprehensive rationale. By contrast, the August 2014 and January 2017 VA examiners found that the Veteran did not have continuous care for his mental health problems following service, despite the November 1987 VA treatment record documenting the psychiatric care he received less than three months after his discharge and his December 1990 VA treatment record documenting his reports of anxiety and problems with sexual identity. The Board finds that the August 2014 and January 2017 VA examiners' conclusions are based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (a medical opinion based on an inaccurate factual premise has little, if any, probative value). Furthermore, the Board places significant weight upon the January 2020 conclusion by Dr. J.S. that the August 2014 and January 2017 VA examiners appeared to place little or no weight on the Veteran's reports of his military experiences of severe and repeated instances of abuse and humiliation. Accordingly, taking into consideration the totality of the evidence, the Board finds that the evidence is at least in equipoise that the Veteran's currently diagnosed generalized anxiety disorder and persistent depressive disorder are etiologically related to his traumatic military experiences. Resolving all reasonable doubt in favor of the Veteran, his service connection claim for an acquired psychiatric disorder must be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for skin cancer, to include as due to in-service sun exposure, is remanded. The Veteran asserts that his skin cancer developed after his in-service exposure to the sun and experiencing repeated sun burns in tropical and semi-tropical climates and while standing gate and wearing a very small "C" uniform cover (hat). See August 2017 VA Form 9. VA treatment records document that the Veteran's treatment for multiple skin lesions diagnosed as basal cell carcinoma, actinic keratosis, and squamous cell carcinoma. See December 2013, June 2014, June 2016, and January 2017 VA treatment records. The record does not currently include an etiological opinion. The Board finds that the available competent evidence is insufficient to decide the claim. Given that the evidence suggests that the Veteran's skin cancer may be related to his active duty service, a remand is required to obtain an etiological opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a neck disability is remanded. The Veteran asserts that his neck disability developed during boot camp, when he was in a training drill in which another Marine hit him across his head with a Pugil stick, a large-padded stick, and he was knocked out, went flying backward, and had whiplash from the blow. He said that after that incident, he experienced chronic neck issues that had continued since service. See December 2015 statement and August 2017 VA Form 9. VA treatment records reflect that the Veteran has a current diagnosis for cervical arthritis. See June 2013 VA x-ray report. The record does not currently include an etiological opinion. The Board finds that the available competent evidence is insufficient to decide the claim. Given that the evidence suggests that the Veteran's neck disability may be related to his active duty service, a remand is required to obtain an etiological opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for LUE radiculopathy, to include as secondary to a neck disability, is remanded. 4. Entitlement to service connection for RUE radiculopathy, to include as secondary to a neck disability, is remanded. The Veteran asserts that his bilateral upper extremity radiculopathy developed as a result of the same in-service incident involving his neck disability. He said that the bilateral upper extremity radiculopathy began following that incident and had continued since then. See August 2017 VA Form 9. VA treatment records document the Veteran's complaints of pain, numbness and tingling in his arms and hands. See July 2013, January 2014, February 2014, and December 2014 VA treatment records. However, there is no definitive evidence regarding the Veteran's current diagnosis, as the record includes a diagnosis for left ulnar neuropathy and a notation that the Veteran's EMG was negative with regard to complaints for his right arm. See January 2014 and December 2014 VA treatment records. Nevertheless, the Board finds that the record does not currently include a peripheral nerves examination or an etiological opinion. Thus, the Board finds that the available competent evidence is insufficient to decide the claim. Given that the evidence suggests that the Veteran has a current diagnosis for bilateral upper extremity radiculopathy, which may be related to his active duty service or his neck disability, a remand is required to obtain a VA examination to confirm his diagnosis for a bilateral upper extremity nerve condition and to obtain an etiological opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to service connection for a left foot disability is remanded. 6. Entitlement to service connection for a right foot disability is remanded. The Veteran asserts that his bilateral foot disability developed during active duty service from wearing military dress and combat boots. See August 2017 VA Form 9. The record includes current diagnoses for left foot hallux limitus and right foot hallux rigidus. See April 2017 private opinion. Although the record includes a favorable April 2017 opinion regarding the Veteran's bilateral foot disability, the Board finds that the private opinion is inadequate, because the private physician's opinions are conclusory without any supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). Thus, the Board find that the available competent evidence is insufficient to decide the claim. Given that the evidence suggests that the Veteran's bilateral foot disability may be related to his active duty service, a remand is required to obtain an etiological opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following actions: 1. Obtain all outstanding treatment records for the Veteran's skin cancer, neck disability, bilateral upper extremity radiculopathy, and bilateral foot disability, to include treatment records from Portland VA Medical Center since June 2017. 2. Obtain an opinion from an appropriately qualified clinician (M.D.) to determine whether the Veteran's skin cancer is at least as likely as not (50 percent or greater probability) etiologically related to his active duty service, to include his reported in-service sun exposure. In providing the above opinion, the examiner must address the Veteran's history of skin lesions. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. Obtain an opinion from an appropriately qualified clinician (M.D.) to determine whether the Veteran's neck disability is at least as likely as not (50 percent or greater probability) etiologically related to his active duty service, to include his reported whiplash injury during boot camp training. In providing the above opinion, the examiner must consider the Veteran's lay reports regarding the onset and continuity of his neck symptoms. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 4. Schedule the Veteran for an examination by an appropriately qualified clinician (M.D.) to determine the nature and etiology of any bilateral upper extremity radiculopathy, or any other peripheral nerve disorder. The examiner must respond to the following: (a.) Confirm whether the Veteran has a current diagnosis for bilateral upper extremity radiculopathy, or any other peripheral nerve disorder. (b.) For each diagnosed peripheral nerve disorder, is it as least as likely as not (50 percent or greater probability) that the Veteran's peripheral nerve disorder is etiologically related to his active duty service? (c.) For each diagnosed peripheral nerve disorder, is it at least as likely as not (50 percent or greater probability) that the Veteran's peripheral nerve disorder was caused by his neck disability? (d.) For each diagnosed peripheral nerve disorder, is it at least as likely as not (50 percent or greater probability) that the Veteran's peripheral nerve disorder was aggravated beyond its natural progression by his neck disability? In providing the above opinions, the examiner must consider the Veteran's lay reports regarding the nature, onset, and continuity of his bilateral upper extremity symptoms. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 5. Obtain an opinion from an appropriately qualified clinician (M.D.) to determine whether the Veteran's bilateral foot disability is at least as likely as not (50 percent or greater probability) etiologically related to his active duty service, to include wearing military dress shoes and combat boots. In providing the above opinion, the examiner must consider the Veteran's lay reports regarding the onset and continuity of his bilateral foot symptoms. (Continued on the next page) A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 6. Then, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.