Citation Nr: 21062443 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-43 372 DATE: October 7, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder (claimed as major depressive disorder and PTSD) is granted. Entitlement to service connection for deep vein thrombosis of the left leg is denied. REMANDED Entitlement to service connection for cellulitis is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to an acquired psychiatric disorder is remanded. Entitlement to total disability due to individual unemployability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disability (claimed as PTSD and MDD) is at least as likely as not related to the claimed in-service events. 2. The preponderance of the evidence of record is against finding that the Veteran has had deep vein thrombosis at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability (claimed as PTSD and MDD) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for deep vein thrombosis 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 had active service from March 1975 to March 1979. The Board notes that, aside from the report of his military entrance examination, the majority of his service treatment records (STRs) are unavailable. In this circumstance the Board has a heightened obligation to explain its findings and conclusions and carefully consider applying the benefit-of-the-doubt rule. See Cuevas v. Principi, 3Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran's claims were previously remanded by the Board in a March 2019 decision. The Board finds that the RO has substantially complied with the March 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). While the Veteran has initially filed separate claims of entitlement to service connection for PTSD and major depressive disorder, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds that it is appropriate to recharacterize the claim more broadly as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and MDD. Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder (claimed as major depressive disorder and PTSD) The Veteran contends that his acquired psychiatric disability is a result of his military service. Specifically, the Veteran reports that it is due to trauma experienced during service when a fellow service member was killed by a grenade during training. The Board concludes that the evidence is at least in equipoise that the Veteran has a current disability that is related to an in-service event. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). July 2005 private treatment records show the Veteran has a current diagnosis of depression and treatment for PTSD. VA treatment notes from March 2018 show the Veteran continued to be treated for PTSD and MDD symptoms. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of the claim. The evidence in favor of the claim includes the opinion of the August 2019 VA examiner who concluded that the Veteran's acquired psychiatric disorders were at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service event. As rationale, the examiner noted an extensive history of treatment for PTSD and inter-related and superimposed major depressive disorder. The examiner concluded that the stressor described by the Veteran relating to the deaths of his two fellow Marines during boot camp was adequate. The Board notes that based on records obtained from the National Archives and Records Administration, at least two recruits died at Parris Island, South Carolina, during the time period noted by the Veteran. The nature of their deaths was not included in the report submitted to the Board. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current acquired psychiatric disorder is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for deep vein thrombosis of the left leg The Veteran contends that he was treated for deep vein thrombosis that was the result of his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a 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 concludes that the Veteran does not have a current diagnosis of deep vein thrombosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, based on the competent, credible medical evidence of record, concludes that the condition claimed by the Veteran is more likely diabetic peripheral neuropathy, which has been separately considered. The September 2019 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of pain in the left leg, he did not have a diagnosis of left leg deep vein thrombosis. While the Veteran believes he has a current diagnosis of left leg deep vein thrombosis with continued pain, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. 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. REASONS FOR REMAND Entitlement to service connection for cellulitis is remanded. The Veteran contends that his current cellulitis is the result of an incident that occurred in the Philippines during his active military service. The Veteran was afforded a VA examination for his cellulitis in September 2019. The VA examiner concluded the Veteran's cellulitis was instead related to his peripheral neuropathy based on a notation of recurrent cellulitis in the record decades after his military service. The examiner's opinion is inadequate because it did not address the Veteran's statement that he has experienced recurrent cellulitis since military service. The Board also notes that the majority of the Veteran's service medical records are unavailable. Thus, remand is required to obtain an adequate examination with opinion that fully considers and discusses the Veteran's lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). Entitlement to service connection for obstructive sleep apnea, to include as secondary to an acquired psychiatric disorder is remanded. The Veteran contends that his OSA is secondary to PTSD and has submitted treatise articles in support of this contention. A September 2019 VA examination concluded that the Veteran's OSA was not related to service because the underlying PTSD was not service connected. The Board has now granted service connection for an acquired psychiatric disability, to include PTSD, and so reconsideration is required. 1. Entitlement to total disability due to individual unemployability is remanded. The issue of entitlement to total disability due to individual unemployability requires consideration of the rating assigned by the RO for the Veteran's newly service connected acquired psychiatric disability. Thus, unfortunately, remand is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's recurrent cellulitis (or any related leg disability) is at least as likely as not related to his military service. The examiner is directed to specifically address the lay statements by the Veteran regarding the origin of his original injury and subsequent recurrent cellulitis. The examiner is also directed to consider the Veteran's claim for a leg and foot disability filed within one year following separation from service and his treatment for cellulitis in 2000 and 2005. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's OSA is at least as likely as not related to proximately due to a service-connected disability or aggravated beyond its natural progression by a service-connected disability to include an acquired psychiatric disability (claimed as PTSD and MDD). The examiner is directed to specifically consider, discuss, and comment on the treatise articles provided by the Veteran that discuss a link between OSA and PTSD. 3. After completing the above development and assigning a rating for the Veteran's service-connected acquired psychiatric disorder, adjudicate the claim for TDIU. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.