Citation Nr: 21075090 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 20-00 407A DATE: December 17, 2021 ORDER Entitlement to service connection for hypothyroidism is granted. Entitlement to service connection for insomnia disorder is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a urinary disability, to include excessive urination and nocturia, is remanded. Entitlement to service connection for left lower extremity neuropathy is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for intermittent explosive disorder is remanded. FINDINGS OF FACT 1. The Veteran's hypothyroidism is presumptively related to his in-service herbicide exposure. 2. The Veteran's insomnia disorder is related to his active service in the Republic of Vietnam. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypothyroidism have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for insomnia disorder have been 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 Army from April 1966 to April 1968 and had service in the Army National Guard from March 1970 to April 2001. The Veteran served in the Republic of Vietnam from May 1967 to April 1968, so exposure to herbicides is presumed. These matters come before the Board of Veterans' Appeals (Board) from a March 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issues of entitlement to service connection for insomnia disorder and intermittent explosive disorder were not explicitly raised by the Veteran and have not been addressed in the first instance by the RO, which only addressed the issue of entitlement to service connection for PTSD. However, an October 2017 VA examination diagnosed the Veteran with insomnia disorder and intermittent explosive disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified the scope of a claim on appeal by holding that when a claimant makes a claim, he/she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. The Court in Clemons held that that the scope of a disability claim includes any disability that may reasonably be encompassed by the veteran's description of the claim, reported symptoms, and other information of record. Accordingly, the Board finds that the Veteran's claim for PTSD should be broadened to include any acquired psychiatric disability that may be encompassed by his symptoms. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for hypothyroidism is granted. The Veteran seeks service connection for a thyroid condition, which he contends is due to exposure to Agent Orange in service. The Board concludes that the Veteran has a current disability that is related to in-service herbicide exposure. 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). VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, ischemic heart disease, parkinsonism, bladder cancer, and hypothyroidism. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 39 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service personnel records show that the Veteran served in the Republic of Vietnam from May 1967 to April 1968, so exposure to herbicides is conceded. Additionally, VA outpatient treatment records and private treatment records from Duke Health show that the Veteran has a current diagnosis of hypothyroidism, which is one of the conditions listed at 38 C.F.R. § 3.309(e) for which service connection can be granted on a presumptive basis due to herbicide exposure. Accordingly, the Board finds that service connection for hypothyroidism is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for insomnia disorder is granted. As noted above, the Veteran did not file a claim for insomnia disorder; however, he did file a claim for PTSD and has reported a long history of sleep disturbances. The Board concludes that the Veteran has a current disability that is related to his active service in the Republic of Vietnam. 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). An October 2017 VA examination diagnosed the Veteran with insomnia disorder. The examiner opined that this condition is at least as likely as not related to the Veteran's active military service, specifically, his service in Vietnam. The examiner stated that the Veteran's sleep difficulties and nightmares began during his deployment in Vietnam and that he currently meets the DSM-V criteria for an insomnia disorder, which the examiner attributed to Vietnam related trauma. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for insomnia disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. 3. Entitlement to service connection for a right hip disability is remanded. 4. Entitlement to service connection for sleep apnea is remanded. 5. Entitlement to service connection for a urinary disability, to include excessive urination and nocturia, is remanded. 6. Entitlement to service connection for left lower extremity neuropathy is remanded. 7. Entitlement to service connection for right lower extremity neuropathy is remanded. 8. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. 9. Entitlement to service connection for intermittent explosive disorder is remanded. There are no VA outpatient treatment records more recent than September 2018 associated with the Veteran's claims folder. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain any outstanding relevant VA treatment records. Additionally, the Board finds that a new VA medical opinion is required to address whether the Veteran's intermittent explosive disorder is related to his active service. An October 2017 VA examination diagnosed the Veteran with intermittent explosive disorder. The examiner noted that the Veteran appeared to have symptoms of intermittent explosive disorder prior to service, while also noting that the Veteran's entrance exam did not identify any past or current mental health problems. She then opined that the Veteran's intermittent explosive disorder was at least as likely as not aggravated by stressors related to the Veteran's service in Vietnam. Unfortunately, this opinion is inadequate, as the examiner used the wrong evidentiary standard. A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). For defects, infirmities, or disorders not noted when the veteran is examined, accepted and enrolled for service, the burden lies with the government to show, by clear and unmistakable evidence, that the defect, infirmity, or disorder both pre-existed and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, the Veteran's entrance examination report is negative for an acquired psychiatric disorder, to include intermittent explosive disorder. As such, the presumption of soundness attaches and clear and unmistakable evidence is required to find that the condition existed prior to service and was not aggravated by service. Once VA undertakes an examination, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, on remand, a new VA medical opinion must be obtained to address the etiology of the Veteran's intermittent explosive disorder. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from September 2018 to the present to include any outstanding private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's intermittent explosive disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with intermittent explosive disorder. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: a. Is it clear and unmistakable (obvious, manifest, and undebatable) that the intermittent explosive disorder preexisted active service? b. (b) If so, is it clear and unmistakable (obvious, manifest, and undebatable) that the intermittent explosive disorder WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress of the condition? c. If the intermittent explosive disorder did not preexist service, whether it at least as likely as not (1) began during active service or (2) is related to an injury, event, or disease incurred in service. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S.A. Prinsen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.