Citation Nr: 21068809 Decision Date: 11/13/21 Archive Date: 11/13/21 DOCKET NO. 15-25 718 DATE: November 13, 2021 ORDER Entitlement to service connection for acquired psychiatric disability, diagnosed as depression not otherwise specified (NOS), is granted. Entitlement to service connection for congestive heart failure with hypertension is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for liver disability, to include hepatitis C, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis under 38 C.F.R. § 4.16(b), is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's depression NOS is related to his active duty service. 2. The preponderance of the evidence does not reflect that the Veteran's congestive heart failure with hypertension had its onset in service, is otherwise related to service, or manifested within a year of separation from service. 3. The preponderance of the evidence does not reflect that the Veteran's diabetes mellitus had its onset in service, is otherwise related to service, or manifested within a year of separation from service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disability, diagnosed as depression NOS, are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for congestive heart failure with hypertension are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1962 to July 1965. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in January 2016 by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims of service connection for posttraumatic stress disorder (PTSD), congestive heart failure with hypertension, diabetes, and liver disorder. The Board will broaden the Veteran's claim and consider all psychiatric diagnoses raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In March 2020, the Board reopened the Veteran's claim of service connection for congestive heart failure with hypertension, and remanded the claims on appeal for further development, to include furnishing a Statement of the Case (SOC) for the claims of service connection for diabetes and liver disorder, as well as obtaining VA examinations for the claims of service connection for PTSD and congestive heart failure with hypertension. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's March 2021 remand instructions by furnishing an SOC for the claims of service connection for diabetes and liver disorder, and as demonstrated by the discussion below, obtaining a VA examination that is adequate to decide the claim of service connection for PTSD, and obtaining a VA opinion that is adequate to decide the claim of service connection for congestive heart failure with hypertension. Thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for acquired psychiatric disability The Veteran contends he suffers from PTSD as a result of incidents that occurred in service. Specifically, he contends that he witnessed a dolphin get killed by a live warhead that exploded during a retrieval dive, in addition to an incident where he was blown overboard by jet exhaust while aboard the USS Kitty Hawk for exercises. In an October 2010 VA treatment note, the Veteran reported that he experienced continuous nightmares reliving the incident where he was blown off the deck of a ship by jet exhaust and was retrieved from the ocean. He also related watching a trained porpoise die during an ordinance explosion. The VA psychiatrist diagnosed the Veteran with depression NOS. For the following reasons, entitlement to service connection for acquired psychiatric disorder, diagnosed as depression NOS, is warranted. In October 2010, a VA psychiatrist diagnosed the Veteran with depression NOS. Thus, entitlement to service connection for this disorder must be considered in addition to entitlement to service connection for PTSD. Given the above noted diagnosis, the Veteran has met the current disability element of the claim. Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020). The Veteran's military personnel records reflect that he served aboard the USS Kitty Hawk in service. The Veteran's statements in regard to his in-service incidents are therefore competent, credible, and consistent with the places, types, and circumstances of his service. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). Thus, the Veteran meets the in-service injury or disease requirement. The Board gives substantial probative weight to the October 2010 VA treatment record that diagnosed the Veteran with depression NOS. The VA psychiatrist who diagnosed the Veteran with depression NOS implicitly based the diagnosis on the Veteran's reported history, which is credible and consistent with the Veteran's circumstances of service, as the VA psychiatrist discussed the Veteran's chronic sleep impairment and nightmares of his in-service incidents. Thus, the Board considers the October 2010 VA psychiatrist's diagnosis of depression NOS an implicit nexus opinion based on the context of the Veteran's evidence of record. As the VA psychiatrist provided the reasons for the conclusion based on an accurate characterization of the evidence, and reading the opinion as a whole and in the context of the evidence of record, the opinion is entitled to substantial probative weight. Nieves-Rodriguez v. Peake,22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Acevedo v. Shinseki,25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). This is also the only nexus opinion of record discussing whether the Veteran's depression NOS is related to service. For the foregoing reasons, the evidence is approximately evenly balanced as to whether the Veteran's depression NOS is related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression NOS, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the issue on appeal has previously been characterized as entitlement to service connection for PTSD. However, given that there is no indication that there are psychiatric symptoms clearly attributable to psychiatric disorders other than depressive disorder, for which service connection is being granted, further discussion of PTSD or any other psychiatric disorder is unnecessary. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Entitlement to service connection for congestive heart failure with hypertension The Veteran contends that his congestive heart failure with hypertension is related to herbicide agent exposure as a Blue Water Navy veteran or exposure to asbestos in service. There are certain diseases on the list of those presumed service-connected in Veterans exposed to herbicide agents, however, congestive heart failure with hypertension is not on the list. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). However, the absence of diseases on the list of those presumed service-connected in veterans exposed to herbicide agents does not preclude a veteran from alleging that the non-presumptive diseases with which he has been diagnosed are related to herbicide agent exposure. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). For the following reasons, entitlement to service connection for congestive heart failure with hypertension is not warranted. The Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) extends the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The BWN Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), that "Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the "Republic of Vietnam" are entitled to § 1116's presumption if they meet the section's other requirements. They are"). See VAOPGCPREC 3-2019 (Dec. 13, 2019), at 2 ("The BWN Act codified the Procopio holding"). Moreover, Congress also intended the BWN Act to "ensure that VA defines 'the Republic of Vietnam' broadly." Id. at 12 (citing H.R. Rep.116-58, at 11 (May 10, 2019)). In a relevant advisory opinion, VA's General Counsel noted that, although VA could promulgate a regulation requiring specific types of evidence supporting a veteran's bare assertion that his or her ship entered the territorial sea of Vietnam, "VA is required to consider 'all information and lay and medical evidence of record in a case,' so VA can never limit its inquiry to the point of precluding the full and fair consideration of lay evidence on all matters that lay evidence is capable of establishing." VAOPGCADVIS 1-19 (Mar. 29, 2019), at 2 (quoting 38 U.S.C. § 5107(b)). Moreover, while VA could promulgate regulations delineating when lay evidence could establish presence within the territorial sea of Vietnam and when it could not, "any such rule or policy could not preempt existing laws governing the consideration of evidence in VA benefits cases." Id. at 3. Thus, even if VA compiled a list of ships that were in the territorial waters of Vietnam or promulgated a corroboration requirement, the Board would still have to consider "all information and lay and medical evidence of record." Id. (citing 38 U.S.C. § 5107 (b)). In doing so, the Board would have to consider that if a reasonable doubt arises as to "any... point" within the claim, including as to the question of a veteran's service within the territorial sea of Vietnam, it would have to resolve this reasonable doubt in favor of the claimant. Id. (citing 38 C.F.R. § 3.102). Moreover, it is error for the Board not to consider lay evidence regarding service in Vietnam and herbicide agent exposure. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in additional to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). The Veteran's military personnel records and service treatment records confirm that he served at Naval Air Station (NAS) North Island from May 1963 to November 1963, at NAS Jacksonville from November 1963 to May 1964, and at the Point Magu Pacific Missile Range from May 1964 until separation from service in July 1965. A May 2021 VA Memorandum indicates that exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. Further, the Veteran's DD Form 214 reflects no foreign sea service, and there is no evidence of record indicating that the Veteran served in a location from which it may be presumed that he was exposed to herbicide agents or was otherwise exposed to herbicide agents. Moreover, while the Veteran's assertion that he was aboard the USS Kitty Hawk during June 1963 for war games is credible and corroborated by a Defense Personnel Records Information Retrieval System (DPRIS) response that the USS Kitty Hawk was either moored in San Diego or off the coast of California conducting exercises from June 1 to July 31, 1963, there is no evidence of record, and the Veteran does not contend, that he was aboard the USS Kitty Hawk during any other period of time. Thus, the Board finds that the Veteran was not exposed to herbicide agents in service. With regard to the Veteran's claim that he was exposed to asbestos in service, there is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. With respect to claims involving asbestos exposure, VA must determine whether the Veteran's military records demonstrate evidence of asbestos exposure during service, whether there was pre-service and/or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. The Veteran's military personnel records confirm that he served as an aviation ordinance man during his service in the U.S. Navy. As the Veteran's military occupational specialty is of the type with a minimal probability of exposure to asbestos, asbestos exposure is conceded, and the Veteran meets the in-service injury or disease requirement. VA treatment records note that the Veteran was diagnosed with congestive heart failure in June 2007. Therefore, the Veteran meets the current disability requirement. The Veteran did not indicate, and the evidence of record does not reflect, that he had treatment for, symptoms of, or a diagnosis of congestive heart failure in the years between service and his post-service reports and diagnosis for that disability in June 2007, and the Veteran did not relay reports or diagnoses for that disability during those years. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). The Veteran's service treatment records do not contain any notations relating to symptoms, treatment for, or diagnosis relating to congestive heart failure, and the clinical examination of the heart was normal during the Veteran's July 1965 separation examination. Post-service records reveal no mention of symptoms, treatment for, or diagnosis for congestive heart failure until June 2007, approximately 42 years after separation from active duty. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above, including the lack of notations relating to symptoms, treatment for, or diagnosis relating to those disabilities in the Veteran's active duty service treatment records, as well as lack of statements indicating continuity of symptoms or continuous symptoms, that can be considered as evidence against the claim. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained weight of the malady at issue). In April 2021, a VA physician pointed to a June 2007 VA treatment note that found pulmonary function tests (PFTs) were otherwise within normal limits consistent with a mildly obstructive pattern. This note did not support any circulatory disease due to asbestos and instead described heart disease related to coronary artery occlusive disease along with the adverse effects of alcohol abuse. The physician noted that asbestos enters the body and causes disease by dust inhalation into the lungs where scarring leads to impaired lung functions. Thus, the remark that the Veteran's PFTs were otherwise within normal limits did not support that the disease was caused by asbestos. Therefore, based on the body of current medical knowledge and the evidence of record, the physician found that the Veteran's congestive heart failure with hypertension was less likely than not incurred in or caused by any event in service, to include exposure to asbestos during service. The April 2021 VA opinion contained explanations of its reasoning based on an accurate characterization of the evidence of record. Reading the April 2021 VA opinion as a whole and in the context of the evidence of record, and as the VA physician explained the reasons for the conclusions based on an accurate characterization of the evidence, the opinion is entitled to some probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, while the VA physician did not specifically address the Veteran's contention that his congestive heart failure with hypertension was related to herbicide agent exposure, this omission was harmless error to the Veteran as the Board has found that the Veteran was not exposed to herbicide agents in service. To the extent that the Veteran's lay statements suggest a relationship between and his congestive heart failure and service, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, n.4. For the foregoing reasons, the preponderance of the evidence does not reflect that the Veteran's congestive heart failure with hypertension had its onset in service, manifested within one year of separation from service, or is related to service. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for diabetes mellitus For the following reasons, entitlement to service connection for diabetes mellitus is not warranted. A December 2007 VA treatment note indicated that the Veteran had a diagnosis of diabetes. Therefore, the Veteran meets the current disability requirement. The Veteran did not indicate that he had treatment for, symptoms of, or diagnosis of diabetes in the years between service and his post-service reports and diagnosis for that disability in December 2007, and he did not relay reports of or a diagnosis of that disability during those years. Jandreau, 492 F.3d at 1377. The Veteran's service treatment records from active duty do not contain any notations relating to symptoms, treatment for, or diagnosis relating to diabetes, and the Veteran's endocrine system was clinically evaluated and deemed to be normal during the Veteran's July 1965 separation examination. Post-service records reveal no mention of treatment or diagnosis for diabetes until December 2007, approximately 42 years after separation from active duty. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above, including the lack of notations relating to symptoms, treatment for, or diagnosis relating to diabetes in the Veteran's active duty service treatment records, as well as lack of statements indicating continuity of symptoms or continuous symptoms, that can be considered as evidence against the claim. Forshey, 284 F.3d at 1358. To the extent that the Veteran's lay statements suggest a relationship between and his diabetes and service, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, n.4. Moreover, the Veteran has not asserted, and the evidence of record does not reflect, any reasons for how his diabetes is related to service. As there is no evidence indicating that there is diabetes that may be associated with active military, naval, air, or space service, a VA examination is not warranted for this claim. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the foregoing reasons, the preponderance of the evidence does not reflect that the Veteran's diabetes had its onset in service, manifested within a year of separation from service, or is related to service. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for liver disability, to include hepatitis C In an October 2013 statement, the Veteran indicated that he received shots in both arms with a gun upon his entrance into service and was exposed to blood from other servicemembers from the gun. Multiple VA treatment notes indicate a diagnosis of hepatitis C in August 2009. The Veteran has not yet been afforded an examination or opinion in regard to this claim. VA must provide a medical examination when the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); McLendon, 20 Vet. App. at 81-86. The requirement that the evidence of record indicates that a disability, or persistent or recurrent symptoms of a disability, may be associated with the veteran's service establishes a low threshold. McLendon, 20 Vet. App. at 83. The evidence of record indicates that there is a current diagnosis of hepatitis C, and the Veteran's credible lay statements regarding exposure to blood in-service. Thus, the low threshold of McLendon is met, and remand of the claim of service connection for liver disability, to include hepatitis C, is warranted. Entitlement to a TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Currently, the Veteran is not in receipt of service connection for any disabilities and does not meet the schedular criteria in 38 C.F.R. § 4.16(a). However, the instant service connection grant of acquired psychiatric disability, diagnosed as depression NOS, may render the Veteran eligible for TDIU under 38 C.F.R. § 4.16(a). Even where a Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted." Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520 (Vet. App. Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op. at 2 (Greenberg, J., dissenting) ("What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?"). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The medical and lay evidence reflect that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. Consequently, if, after implementing the Board's decision the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU should be referred to the Director of Compensation for consideration under 38 C.F.R. § 4.16(b). Accordingly, the claim for a TDIU is inextricably intertwined with the yet to be assigned initial disability rating for acquired psychiatric disability, diagnosed as depression NOS, and a remand is warranted. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, the matters are REMANDED for the following action: 1. An appropriate clinician should identify all liver disability diagnoses that have existed since approximately July 2012, the date of the claim of service connection for liver disability. Obtain a medical opinion from an appropriate clinician to address whether it is at least as likely as not (a 50 percent or greater probability) that a liver disability, to include hepatitis C, is related to service, to include immunizations via air gun injector. The claims file should be provided to and reviewed by the clinician. A complete rationale should accompany any opinion provided. 2. After implementing the Board's decision, develop and readjudicate the issue of entitlement to a TDIU, to include, if appropriate, sending the Veteran another formal TDIU application form (VA Form 21-8940). If, after implementing the Board's decision, the Veteran does not meet the schedular criteria, refer the issue of entitlement to TDIU to the Director of Compensation Service for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.