Citation Nr: 21066322 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-35 312A DATE: October 29, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include anxiety, depression, posttraumatic stress disorder (PTSD), and bipolar disorder is granted. Entitlement to service connection for colon cancer is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. An acquired psychiatric disorder had its onset in service. 2. The preponderance of the evidence is against finding that the Veteran's colon cancer began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 101, 106, 1101, 1111, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for colon cancer 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 in the United States Coast Guard from April 1970 to April 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. As an initial matter, the Veteran through his representative requested the Board hold the record open for an additional 60 days in a May 2021 correspondence in order to submit additional evidence. The undersigned Veterans Law Judge granted this request and has held the record open for more than 60 days. No additional evidence has been submitted. As to claim of service connection for an acquired psychiatric disorder, the Board has recharacterized this issue to include all acquired psychiatric disorders including PTSD, anxiety, depression, and bipolar disorder so as to reflect the claims being made by the Veteran and the diagnoses seen in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303 (d). Other specifically enumerated disorders, including a psychosis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder to include anxiety, depression, posttraumatic stress disorder (PTSD), and bipolar disorder The Veteran contends his acquired psychiatric disorder began in service and has continued since service. As to current disabilities, the record shows the Veteran has been diagnosed with, among other things, anxiety, depression, bipolar disorder, and PTSD. See generally, VA Treatment Records. Next, the Veteran contends that he is entitled to service connection for an acquired psychiatric disorder due to several incidents that occurred in service. First, as part of the firefighting crew, the Veteran was assigned to guard a firetruck with a shotgun. See January 2011 Correspondence. The Veteran reported it caused him great stress and fear because snipers in that area from anarchists targeted them and there were numerous bomb threats made against them. Second, the Veteran reported he came under physical attack from a Japanese Naval Crew Member with a broken beer bottle in July 1973. Third, the Veteran was medevacked from Iwo Jima to Okinawa due to a severe bought of gastroenteritis. He reported he thought he was going to die. Finally, the Veteran reported that when he was returned to duty following the gastroenteritis incident, he was not fully recovered physically or mentally, and these impairments combined with the requirements of carrying out his duties caused his mental health to decline. As a result of these incidents in service, the Veteran reported that since service he has had PTSD, depression, anxiety, and bipolar disorder. In this regard, while the Veteran is not competent or credible to diagnose an acquired psychiatric disorder because this is a complex medical question, the Board nonetheless finds that he competently and credibly reported his observable symptoms (i.e., experiencing feelings of anxiety or depression) of his acquired psychiatric disorder in and since service because these symptoms come to him via his own senses. See Davidson, supra. The Veteran's service treatment records (STRs) note that in two examinations the Veteran was diagnosed with anxiety and depression. See September and November 1972 STRs. In addition, the Veteran's Military Personnel Records note circumstances that seem to corroborate the incidents described by the Veteran's lay statements (he was medevacked due to severe gastroenteritis, he was a fireman in charge of guarding the firetruck, and he was stationed in Iwo Jima). The Veteran underwent several VA examinations for his acquired psychiatric disorders. The VA examiners in July 2014 and April 2011 opined it was at least as likely as not that the Veteran's PTSD began in service and has continued since service. The April 2011 VA examiner also opined it was at least as likely as not that the Veteran's depression began in service and has continued since service. In contrast, an August 2014 VA examiner opined it was less likely than not that the Veteran's bipolar disorder began in service and has continued since service. Given the above when combined with the Veteran's competent and credible claims as to what happened to him in service, the Board finds that the evidence, both positive and negative, as to whether the Veteran's acquired psychiatric disorder began in service and has continued since service. The Board also finds that the Veteran's statements are corroborated by the military personnel records and service treatment records and two positive opinions from mental health providers. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board finds that the record contains credible supporting evidence that the claimed disability began in service and has continued since service. Accordingly, the Board finds that the criteria for entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, posttraumatic stress disorder (PTSD), and bipolar disorder have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. Entitlement to service connection for colon cancer The Veteran contends his colon cancer is due to service, to include as due to exposure to radiation from nuclear weapons. First, if a Veteran participated in service in a radiation-risk activity (as defined by statute and regulation) and, after service, developed one of the specifically enumerated cancers, it will be presumed that the cancer was incurred in-service. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Colon cancer is one of the enumerated cancers. Id. The list of the specifically enumerated radiation-risk activities includes onsite participation at atmospheric nuclear tests; participation in the occupation of Hiroshima or Nagasaki, Japan during specific periods of time; and service at specific nuclear weapons production facilities. 38 C.F.R. §§ 3.309 (d)(3). The Veteran has a diagnosis of colon cancer. See generally VA Treatment Records. The Veteran's service treatment records (STRs) and personnel records do not indicate he was exposed to radiation while in service nor do they show that he was treated for, complained of, or was diagnosed with colon cancer while in service. The Veteran submitted several articles purporting to indicate nuclear weapons were stored in Japan during his time in service. The Board has considered the articles submitted by the Veteran. Even if the Board were to accept the articles as factual, (that nuclear weapons or parts were stored in Iwo Jima and Chichi Jima Japan from 1956 to 1966) the Veteran began service four years after this in April 1970. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must "not simply provide speculative generic statements not relevant to the [claimant]'s claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra)). In this case, the articles submitted by the Veteran are not medical treatises, but rather articles about the possibility of nuclear weapons in Japan four years before the Veteran entered service. They provide only general information and are not accompanied by any corresponding clinical evidence specific to the Veteran and does not suggest a relationship between the Veteran's colon cancer and any claimed radiation exposure with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts. As such, the Board places little probative weight on this evidence. The availability of presumptive service connection does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has weighed the Veteran's statements about his exposure to radiation from nuclear weapons and the objective evidence of record that does not show the Veteran had been exposed to radiation. The Board places more weight on the lack of objective evidence that the Veteran was exposed to radiation. While the Veteran may have believed he was exposed to radiation from nuclear weapons, he is a lay person and not qualified to opine as to whether he was exposed to radiation. Based upon a review of the evidence of record, it appears that the Veteran is speculating about his exposure. Therefore, because radiation exposure is not conceded and the Veteran's record does not indicate that he was seen in service for colon cancer, the claim cannot be granted on either a presumptive or direct basis. The claim is denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome is remanded. Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim regarding entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome. The Veteran's most recent examination for this condition was in July 2014. At his hearing before the undersigned in February 2021, the Veteran testified that his condition has increased in severity. The Board finds a contemporaneous examination is required in order to determine the current severity of his disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Veteran has also contended that he is entitled to separate ratings for hemorrhoids and fecal incontinence due to his irritable bowel syndrome. See February 2021 Board Hearing Transcript. Upon remand, the examiner should clarify whether hemorrhoids and fecal incontinence are symptoms of the Veteran's irritable bowel syndrome or separate unrelated disabilities. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes the Veteran does not currently meet the requirements for a schedular TDIU. However, the matter on remand may impact that criteria. Therefore, this matter will be remanded as it is inextricably intertwined with the other matter being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In his February 2021 hearing, the Veteran said his service-connected irritable bowel syndrome has caused him to be unable to work. It is unclear from this testimony if the Veteran is currently gainfully or marginally employed. Further development is required in order to determine whether the Veteran may be entitled to TDIU consideration. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent evidence regarding the conditions at issue in order to expedite the claim. 2. Send the Veteran the appropriate forms in order to determine his employment status and history. Invite the Veteran to submit any relevant evidence regarding his employment. 3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his irritable bowel syndrome. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is asked to specifically address any hemorrhoids and fecal incontinence and whether it is at least as likely as not that these are symptoms of his service-connected irritable bowel syndrome or separate unrelated disabilities. 4. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.