Citation Nr: 21072760 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-01 729 DATE: December 6, 2021 ORDER Entitlement to service connection for dysmetabolic syndrome is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for insomnia, to include as secondary to an acquired psychiatric disorder, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's dysmetabolic syndrome began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for dysmetabolic syndrome 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 FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board denied the Veteran's service connection claim for an acquired psychiatric disorder, insomnia, and dysmetabolic syndrome on the merits and denied his request to reopen his service connection claim for posttraumatic stress disorder (PTSD). He appealed the decision to the Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in September 2019, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand (JMPR). The parties agreed that remand was necessary because the Board "failed to discuss favorable evidence of record" and "relied on an inadequate [mental health] examination." The following October, the Court vacated the Board's decision and remanded the matter for adjudication consistent with the JMPR. In April 2020, the Board reopened the Veteran's service connection claim for PTSD and remanded for additional development. The case is once again before the Board. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for dysmetabolic syndrome is denied. The Veteran contends that he has dysmetabolic syndrome as a result of his service. As noted above, in the September 2019 JMPR, the parties agreed that the Board erred by failing to provide adequate reasons or bases in its October 2018 denial. Specifically, the parties noted that the Board failed to discuss favorable evidence of record indicating a diagnosis for dysmetabolic syndrome in January 2013 private treatment records. Direct 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. 38 C.F.R. § 3.303. Starting with the first element (current disability), this requirement is met when the Veteran has a disability at or approximate to the time a claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In January 2013 (and during the appeal period), the Veteran's healthcare provider diagnosed him with "DYSMETABOLIC SYNDROME X." Accordingly, the Board finds the Veteran currently disabled. Moving on to the second element of service connection (an in-service injury or disease), the Veteran served in Vietnam from September 1970 to September 1971. By law, veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, are presumed to have been exposed to tactical herbicides unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii). Because that is not the case here, the Board finds that the Veteran suffered an in-service injury. Although certain diseases are presumed to have been caused by tactical herbicide exposure, dysmetabolic syndrome is not among them. See 38 C.F.R. § 3.309(e). However, the Veteran may still establish direct service connection with evidence that his disability is linked to his military service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In the December 2013 Substantive Appeal, the Veteran states that he served "in country" in Vietnam and contends that his "illnesses were caused by [his] military service." The Board takes this to mean that he believes his dysmetabolic syndrome is related to his tactical herbicide exposure. The Board begins with the basic principle that the Veteran is competent to testify about what he has "heard, felt, seen, smelled, or tasted." Layno v. Brown, 6 Vet. App. 465, 469 (1994) (citing United States v. Brown, 540 F.2d 1048, 1053 (10th Cir. 1976)). That said, the Veteran is not competent to determine his dysmetabolic syndrome's cause because, in this case, the issue is medically complex and requires specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). And he did not submit any medical evidence of a possible link between his tactical herbicide exposure and dysmetabolic syndrome. Indeed, there are no medical opinionsfavorable or unfavorablein the claims file addressing nexus. The closest medical evidence bearing on the issue is the Veteran's January 2013 private medical record. Recall that the doctor diagnosed him with dysmetabolic syndrome. But he also assessed more than a half dozen other disabilities at the visit. Of those disabilities, the doctor opined that the Veteran's diabetes and diabetic neuropathy were "due to" his tactical herbicide exposure. He did not include dysmetabolic syndrome among the disabilities caused by tactical herbicide exposure. On this record, the Board finds no competent evidence linking the Veteran's disability to his service. The Board acknowledges that VA has not scheduled the Veteran for an examination to determine if his dysmetabolic syndrome is linked to his service. The Secretary must provide an exam or medical opinion when it "is necessary to make a decision on the claim." 38 C.F.R. § 5103(d). A medical exam or opinion is necessary only if the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that the veteran suffered an in-service event, injury, or disease; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to decide on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The third element "requires only that the evidence 'indicates' that there 'may' be a nexus" between the Veteran's symptoms or disability and his military service. McLendon, 20 Vet. App. at 83. "This is a low threshold." Id. Here, the sticking point is the third elementwhether there is evidence that "indicates" that there "may be" a connection between the Veteran's dysmetabolic syndrome and his service. With no medical evidence linking (or even suggesting) that the two are connected, the January 2013 private medical record is the most relevant evidence in the claims file. And it supports a no-examination conclusion. At the visit, the Veteran's healthcare provider diagnosed him with almost a dozen disabilities. He then went on to expressly link the Veteran's diabetes and diabetic neuropathy to his tactical herbicide exposure. But he did not include the Veteran's dysmetabolic syndrome. It stands to reason that if the doctor thought the Veteran's tactical herbicide exposure caused his disability, it, too, would've been included on the list. At the very least, the doctor provided no reason to believe that there is a possible link between the two. Because there is no indication that the Veteran's disability may be associated with his service, VA need not provide a medical examination. Accordingly, the Board finds the criteria for service connection not met. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. 2. Entitlement to service connection for insomnia, to include as secondary to an acquired psychiatric disorder, is remanded. As noted, the Court vacated the Board's October 2018 decision because it "relied on an inadequate [mental health] examination." The medical examiner had found the Veteran's psychiatric disorder unrelated to his service because the "Veteran sought psychiatric care in 1995, twenty[-]four years after his military discharge, and the events that led to his military stressors." But as the Court explained, confirmatory clinical records are not required. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As a result, the Board remanded the Veteran's claim in April 2020 to obtain an addendum medical opinion and directed the examiner to avoid basing her rationale solely on the lack of contemporaneous medical records before 1995. In September 2021, the Veteran underwent another mental health examination. There, the examiner diagnosed him with major depressive disorder (MDD) but found it unrelated to his service. "[The] Veteran sought psychiatric care around 2002," she wrote, "almost thirty years after . . . military service." Regrettably, the examiner's rationale is almost identical to the last one. Ignoring the Board's directive, she relies heavily on the absence of psychiatric treatment for almost thirty years without explaining its significance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board must remand to obtain another addendum opinion that complies with the JMPR. At the same examination, the examiner found chronic sleep impairment to be a symptom of his depressive disorder, suggesting a possible relationship between his insomnia and his mental health problem. Therefore, the claims are inextricably intertwined, and remand is required for the Veteran's insomnia claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on whether it is at least as likely as not that the Veteran's acquired psychiatric disorder had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. This rationale must not be based solely on the lack of contemporaneous records of treatment prior to 1995. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. S. Morrad Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.