Citation Nr: 21068154 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-52 364 DATE: November 9, 2021 ORDER Service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), Major Depressive Disorder (MDD), and panic disorder without agoraphobia is granted. Service connection for Congestive Heart Failure (CHF) is granted. REMANDED Entitlement to service connection for pseudofolliculitis barbae claimed as skin to include scars is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for gynecomastia claimed as male breast cancer is remanded. Entitlement to service connection for hemorrhoids is remanded. FINDINGS OF FACT 1. The Veteran's current acquired psychiatric disorders, as variously diagnosed to include PTSD, MDD, and panic disorder without agoraphobia, are is at least as likely as not related to his active-duty service. 2. The Veteran's current CHF is related to his service-connected obstructive sleep apnea (OSA). CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, MDD, and panic disorder without agoraphobia, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f). 2. The criteria for service connection for CHF as secondary to OSA are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to January 1990 and from February 2007 to March 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from February and May 2016 rating decisions. The Veteran appeared before the undersigned Veterans Law Judge at a hearing in July 2021. An electronic transcript of the hearing has been associated with the file. Service Connection 1. Service connection for an acquired psychiatric disorder to include, MDD, and panic disorder without agoraphobia is granted. The Veteran contends that his PTSD began during his active-duty service. At the hearing, the Veteran testified that his PTSD was caused by mental, physical, and sexual abuse. Specifically, he testified to three in-service stressors: (1) hazing, i.e., being punched, kicked, and badmouthed; (2) having a "duck shower"; and (3) his former wife's miscarriage. See Hearing Transcript received 7/13/2021 at page 24. The Veteran has other psychiatric disorders, specifically Major Depressive Disorder and panic disorder without agoraphobia, diagnosed within the appellate period. Accordingly, his claim is broadened to encompass the additional, related diagnoses on record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As a result, the Board will recharacterize the issues on appeal to be as noted on the title page. To establish service connection for PTSD, there must generally be: (1) medical evidence establishing a current diagnosis in conformance with the DSM-V, per 38 C.F.R. § 4.125; (2) credible supporting evidence that the in-service stressor(s) occurred; and (3) a medical link between the current disability and such stressor(s). 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128, 138-40 (1997). To establish service connection for other physiatric disorders, there must be a current disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship/nexus between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303. The Board concludes that the Veteran has a current disability of an acquired psychiatric disorder to include PTSD, MDD, and panic disorder, that is related to his active-duty service. 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). In September 2015, the Veteran was provided a VA examination. The Veteran was diagnosed with PTSD, MDD, and panic disorder without agoraphobia. See C&P Exam received 9/10/2015 at page 1. At the September 2015 VA examination, the Veteran's stressors provided to the examiner were (1) the Veteran's former spouse miscarrying four babies, the fetus of one of which he viewed in a bedpan; and (2) the stressful environment on active duty in the Air Force wherein he had ongoing concerns of fuel-related explosions and accidents. Id. at page 4. The September 2015 VA examiner opined that the Veteran's PTSD, MDD, and Panic Disorder were "more likely than not due to his claimed in service stressors". Id. at page 7. 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 that is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for CHF is granted. The Veteran contends that his CHF was caused by his service-connected obstructive sleep apnea. See Hearing Transcript received 7/13/2021 at page 48. The Veteran testified that he became aware of the connection between his OSA and CHF after a conversation with his private provider, Dr. M. A. Id. The November 2013 VA examination shows that the Veteran has a current disability of CHF. The November 2013 VA examiner's medical opinion stated that his CHF has multiple etiologies including but not limited to his obesity, alcohol consumption, and his OSA. See C&P Exam received 11/01/2013 at page 13. The November 2013 VA examiner ultimately provided a negative nexus opining that OSA was not the sole causative factor of his CHF. Id. In August 2021, the Veteran's private provider, Dr. M.A., opined that the Veteran's diagnoses of depression and OSA has led to his CHF. See Medical Treatment Record received 9/01/2021 at page 3. Dr. M.A. indicated his is familiar with the Veteran's history, has examined him, and cares for him. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current CHF is related to his service connected OSA. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for CHF is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for pseudofolliculitis barbae claimed as skin to include scars is remanded. The Veteran contends that his pseudofolliculitis barbae began during service and he has residual scars from shaving while at bootcamp. See Form 9 received 10/05/2017 at page 1. At the hearing, the Veteran stated he had a "dry shave" on the first day of bootcamp and his whole neck developed a scab. See Hearing Transcript received 7/13/2021 at page 4-6. In July 2015, a VA examiner diagnosed the Veteran with pseudofolliculitis barbae. See C&P Exam received 9/02/2015 at page 2. However, the July 2015 VA examiner's opinion is inadequate since the examiner did not provide a basis for the negative nexus opinion. See C&P Exam received 9/02/2015 at page 2. Specifically, the July 2015 VA examiner merely stated that the Veteran had hyperpigmentation bilaterally and restated his claim. Id.; see e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that an adequate medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Since the Board cannot decide the claim without an adequate medical opinion, which considers the Veteran's theory of entitlement and puts forth a basis for the opinion, the Board must remand the claim for a new medical examination and medical opinion. 2. Entitlement to service connection for GERD is remanded. At the hearing, the Veteran testified that his GERD began while stationed in Camp Lejeune. He visited sick call for treatment for acid reflux and GERD numerous times while on active duty. He further testified that a civilian doctor diagnosed him with GERD in 1990-91 and he stated he that the same symptoms continued after separation. See Hearing Transcript received 7/13/2021 at page 41. A review of the Veteran's service treatment records confirm that he was treated for gastroenteritis and gastritis during his active-duty service in the 1980s. See STR Medical received 6/09/2008 at pages 35 and 60. The Veteran is currently being treated for GERD since a review of his current VA medical records show GERD as an active problem. See Capri received 8/04/2021 at page 1. The Veteran has not received a VA examination in conjunction with this claim. As the Veteran has current treatment, in-service treatment, and testified to continuing symptoms, the Board finds that the VA is obliged to provide the Veteran an examination under 38 U.S.C. § 5103A(d). See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006) (holding VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information decide on the claim). 3. Entitlement to service connection for gynecomastia claimed as bilateral breast cancer is remanded. The Veteran claims that his gynecomastia was caused by the contaminated waters at Camp Lejeune. See Hearing Transcript received 7/13/2021 at page 12. The Veteran testified that he found a lump on his nipple that was biopsied and removed about 7-8 years ago. Id. at page 15. The Veteran testified that he did not undergo radiation therapy and has no residuals. Id. VA provided the Veteran an examination in relation to his claim for service connection for gynecomastia, claimed as bilateral breast cancer, in February 2016. See C&P Exam received 2/01/2016. The February 2016 VA examiner opined that the Veteran had not presented evidence of a diagnosis of male type breast cancer as opposed to gynecomastia. Notably, the VA examiner referred to the lack of documentation of the Veteran's bilateral mastectomy, breast masses representing breast cancer, hospital discharge summary, pathology report, etc. Id. at page 1-2. Additionally, the February VA examiner stated that there were no records from the Veteran's treatment provider, Dr. B. Id. A review of the Veteran's submitted private treatment records show some medical treatment records from Dr. B. However, they do not show a diagnosis of male breast cancer, a pathology report, nor hospital discharge summary of his bilateral mastectomy. See Medical Treatment Record received 9/03/2015. Accordingly, the Board will remand this claim for further development in order to associate the missing private treatment records to the file. Additionally, on remand the Board will direct that the RO provide the Veteran with a new VA examination. 4. Entitlement to service connection for hemorrhoids is remanded. The Veteran asserts that he first noticed his hemorrhoids when he was stationed on the USS El Paso. See Hearing Transcript received 7/3/2021 at page 31. The Veteran testified he had surgery for his external hemorrhoids during service. A review of the Veteran's service treatment records shows treatment for hemorrhoids during his active duty. See STR receive 6/09/2008 at page 10, 40, 43, 64, and 66. Regarding a current disability, the Veteran testified that the condition still flares up to this day. Id. at page 33. The Veteran has not been provide a VA examination in conjunction with this issue. Accordingly, with current flares and notations in his service treatment records, the Board finds that VA's duty to assist to provide a VA examination is met to help the Board in adjudicate this issue on the merits. 38 U.S.C. § 5103A(d). These matters are REMANDED for the following actions: 1. Obtain any outstanding VA and private treatment records including but not limited to private treatment records from Dr. Bitar. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After #1, schedule the Veteran for a VA examination for his pseudofolliculitis barbae claimed as skin to include scars. The examiner is to review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. Please complete the functional impact section the report. The examiner is asked to provide a response to the following: Is pseudofolliculitis barbae claimed as skin to include scars at least as likely as not related to service, including the Veteran's assertion of a "dry shave" during bootcamp (See Hearing Transcript received 7/13/2021 at page 4)? 3. Schedule the Veteran for a VA examination for his GERD. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. Please complete the functional impact section the report. The examiner is asked to provide a response to the following: Is GERD at least as likely as not related to service, including the Veteran's reported in-service treatment for gastroenteritis and gastritis (see STR Medical received 6/09/2008 at pages 35 and 60)? 4. After completing #1 above, then schedule the Veteran for a VA examination for his gynecomastia claimed as bilateral breast cancer. The examiner is to review the claims file to become familiar with the relevant medical history. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. Please complete the functional impact section the report. The examiner is asked to provide a response to the following: Is gynecomastia, claimed as bilateral breast cancer, at least as likely as not related to service, including as due to the contaminated water supply at Camp Lejeune? The examiner is advised that a negative opinion cannot be based solely on the fact that gynecomastia claimed as bilateral breast cancer is not on the list of diseases that are presumptively associated with exposure to contaminants in the water supply at Camp Lejeune. 5. Schedule the Veteran for a VA examination for his hemorrhoids. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. Please complete the functional impact section the report. The examiner is asked to provide a response to the following: Is the Veteran's hemorrhoids at least as likely as not related to service? 6. Inform EACH examiner to provide a comprehensive rationale. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. In providing the requested opinions, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.