Citation Nr: 21076661 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-26 858 DATE: December 27, 2021 ORDER Service connection for a neurological disorder, to include Parkinson's disease and Parkinsonism is granted. Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for tinnitus is granted. REMANDED The issue of service connection for unspecified depressive disorder, to include as secondary to service-connected neurological disorder is remanded. The issue of service connection for a heart disorder, to include hypertensive heart disease, congestive heart failure, nonrheumatic aortic valve insufficiency, and nonrheumatic valve insufficiency is remanded. FINDINGS OF FACT 1. With resolution of the doubt in his favor, the Veteran's neurological disorder manifested to a degree of 10 percent or more after service. 2. With resolution of the doubt in his favor, the Veteran's PTSD onset due to an in-service combat stressor. 3. With resolution of the doubt in his favor, the Veteran's tinnitus was incurred in-service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a neurological disorder, to include Parkinson's disease and Parkinsonism have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303(d), 3.307 (a)(6)(ii), (iii), 3.309(e). 2. The criteria to establish service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1154(b); 38 C.F.R. §§ 3.304(d), 3.304(f)(2). 3. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(b), (d), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1966 to April 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Houston, Texas Regional Office (RO). In October 2021, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Neurological disorder A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). Where a veteran was exposed to an herbicide agent during active military, naval, or air service and Parkinson's disease and Parkinsonism becomes manifest to a degree of 10 percent or more at any time after service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). During the pendency of this appeal, Congress enacted the William M. Thornberry National Defense Authorization for Fiscal Year 2021, Pub. L. No. 116-283, Stat. (2021), Title XCI, Sec. 9109, which in pertinent part, added Parkinsonism to the list of diseases presumptively associated with exposure to herbicide agents. The Veteran initially submitted a claim of service connection for "Parkinson's" in April 2017. VA treatment records show the Veteran's diagnosis of Parkinson's disease and Parkinsonism. The Board has recharacterized the issue on appeal as a neurological disorder, to include Parkinson's disease and Parkinsonism. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that VA has a duty to broadly construe a claim consistent with a lay claimant's reasonable expectations); Brokowski v Shinseki, 23 Vet. App. 79 (2009) (applying Clemons to non-psychiatric disorders); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (holding that separately diagnosed conditions with distinct factual bases should ordinarily be treated as separate claims). A military personnel record (MPR) titled "Foreign Service" reflects that the Veteran served in the Republic of Vietnam from April 11, 1967 to April 10, 1968. The Veteran has met the requirement of "Service in the Republic of Vietnam" under § 3.307(a)(6)(iii) and is therefore presumed exposed to herbicide agents. In the Veteran's April 1968 separation medical examination report, the service medical examiner noted no neurological abnormalities. In a September 2016 VA treatment record, the Veteran denied having Parkinson's disease. In a February 2017 VA treatment record, a VA physician indicated that the Veteran has symptoms consistent with Parkinson's/Parkinsonism and the Veteran was scheduled for a neurological evaluation in March 2017. A March 2017 VA treatment record reflects the Veteran's diagnosis of Parkinsonism by a VA medical doctor. An April 2017 VA treatment record reflects the Veteran's diagnosis of Parkinson's disease by a VA medical doctor. A June 2017 VA treatment record reflects the Veteran's active medication for Parkinson's disease. The VA treatment records dated March 2017 and April 2017 reflect symptoms of generalized slowness and stiffness, mild shuffling, trouble with gait and balance, tremors, reduction of facial expression, and hypophonia. The Board will grant the claim based on the benefit-of-the-doubt doctrine. MPRs show that the Veteran served in the Republic of Vietnam from early-April 1967 to early-April 1968 and is presumed exposed to herbicide agents. Although the service medical examiner noted no neurological abnormalities at service separation, VA treatment records dated March 2017 and April 2017 reflect a diagnosis of Parkinsonism and Parkinson's disease with symptoms of generalized slowness and stiffness, mild shuffling, trouble with gait and balance, tremors, reduction of facial expression, and hypophonia manifesting to a degree of 10 percent or more at any time after service. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, service connection is warranted, and the claim is granted. PTSD Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in service stressor. 38 C.F.R. § 3.304(f)(2). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) is applicable because the Veteran's claim of service connection for PTSD was certified to the Board in December 2019. 79 Fed. Reg. 45,093, 45,094 (stating that the DSM-IV governs all applications for benefits certified to the Board prior to August 4, 2014). The Veteran asserts two in-service stressors resulting in his PTSD: (1) the Veteran was assigned to remove mines in Vietnam, and after he unnoticeably stepped over a mine "by a fraction of an inch," a tank recovery vehicle detected the mine; and (2) the enemy attacked a base perimeter and although the Veteran was "being fired on," the Veteran indicated that the attack was repulsed. As noted, the Veteran served in the Republic of Vietnam. The report of separation from the armed forces (DD Form 214) reflects the Veteran's duty specialty of electrician. A MPR titled "Military Occupational Specialties" reflects the Veteran's duty specialty of electrician and combat engineer. In the Veteran's April 1968 separation medical examination report, the service medical examiner noted no psychiatric abnormalities. In his April 1968 separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had nervous trouble of any sort. The Veteran's duty specialty of combat engineer and his description of "being fired on" by the Viet Cong and that "we held our position" constitutes sufficient proof that the Veteran engaged in combat under 38 U.S.C. § 1154(b) which provides a relaxed evidentiary standard of proof to grant service connection as to the in-service event and/or stressor. Collette v. Brown, 82 F.3d 389 (1996). Under the statute, in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition, or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Additionally, the Veteran's stressor is related to that combat. 38 C.F.R. § 3.304(f)(2). In an October 2016 VA treatment record, the Veteran reported combat related trauma and depressive symptoms. The VA psychologist diagnosed the Veteran with PTSD under the DSM-V and noted "previous combat exposure" as a contributing factor. As noted, the Veteran engaged in combat during service in Vietnam, and the VA psychologist's indication that the Veteran's combat exposure contributed to his PTSD and resulting symptoms is highly probative evidence of a link between the Veteran's current symptoms and in-service combat stressor under 38 C.F.R. § 3.304(f). In a November 2016 VA treatment record, a VA psychologist diagnosed the Veteran with PTSD under the DSM-V and noted that both of the Veteran's stressors met criterion A as adequate to support a diagnosis of PTSD and were related to the Veteran's fear of hostile military and terrorist activity. However, the VA psychologist did not indicate that the Veteran's psychiatric symptoms were related to the stressors as required under 38 C.F.R. § 3.304(f)(3). During a July 2017 VA PTSD examination, the examiner indicated that the Veteran did not have a diagnosis of PTSD because the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-V. The examiner diagnosed the Veteran with unspecified depressive disorder and noted that the Veteran did not have more than one diagnosed psychiatric disorder. The examiner indicated that both stressors were related to the Veteran's fear of hostile military or terrorist activity and the second stressor Viet Cong combat met criterion A as adequate to support a diagnosis of PTSD. However, the examiner noted that the first stressor mine clearing did not meet criterion A as adequate to support a diagnosis of PTSD. The examiner also indicated that the Veteran's symptoms were not related to both stressors, and therefore, the Veteran did not have a diagnosis of PTSD. The VA examination is inadequate and of low probative value because the examiner did not consider the Veteran's diagnosis of PTSD under the DSM-V by a VA psychologist and both stressors meeting criterion A as adequate to support a diagnosis of PTSD as shown in the Veteran's VA treatment records. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that a thorough and contemporaneous medical examination is one which considers records of prior medical treatment so the evaluation of the claimed disability is fully informed). The Board will grant the claim based on the benefit-of-the-doubt doctrine. MPRs reflect the Veteran serving in Vietnam and engaging in combat based on his duty specialty of combat engineer and sufficient description as to his combat stressor. It is debatable as to whether participating in mine clearing operations in a combat zone is sufficient to constitute a stressor and the Board will grant the benefit of the doubt as to that element to the Veteran. VA treatment records reflect a diagnosis of PTSD under the DSM-V. Although the service medical examiner noted no psychiatric abnormalities at separation, the October 2016 VA psychologist noted "previous combat exposure" as a contributing factor to the Veteran's PTSD a link between the Veteran's current symptoms and in-service combat stressor. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, service connection is warranted and the claim is granted. Tinnitus Tinnitus is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, tinnitus will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). Continuity of symptomatology may be established by (1) a condition "noted" during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). If the condition was one as to which a lay person's observation is competent, medical evidence of "noting" is not necessarily required. Id. The Veteran asserts exposure to military acoustic trauma from engaging in combat during his service in Vietnam. The disputed issue is whether the Veteran's tinnitus was caused by service on a direct basis, or whether the Veteran's tinnitus was chronic or exhibited continuity of symptomatology. The claim will be granted as to continuity of symptomatology. In the Veteran's April 1968 separation medical examination report, the service medical examiner noted no neurological abnormalities. In his April 1968 separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had ear trouble or hearing loss. In an undated service statement of medical condition, the Veteran reported no change in his medical condition since the April 1968 service medical examination. As noted, the Veteran served in Vietnam and engaged in combat as a combat engineer. Therefore, the Veteran would have been exposed to military acoustic trauma as a result of combat. 38 U.S.C. § 1154(b). In an October 2016 statement, the Veteran's spouse reported that the Veteran had "ringing in the ears." In a May 2017 VA treatment record, a review of systems revealed no tinnitus. During the July 2017 VA examination, the Veteran reported recurrent tinnitus and that he noticed tinnitus "sometime after separation." The Veteran attributed his tinnitus to instances of combat in Vietnam and he denied post-service occupational acoustic trauma. The examiner opined that the Veteran's tinnitus was not caused by service because the Veteran reported an onset of tinnitus "many years after leaving service" and STRs did not document complaints of tinnitus. In VA treatment records dated November 2017 and December 2017, the Veteran denied tinnitus. In an April 2019 VA treatment record, a review of systems revealed no tinnitus. In the October 2021 Board hearing, the Veteran clarified the statement that he noticed tinnitus "sometime after separation" during the July 2017 VA examination to indicate that he "didn't notice it until after I was out of Vietnam which was after [the Veteran] got out of service." The Board will grant the claim based on the benefit-of-the-doubt doctrine. As noted, the Veteran was exposed to military acoustic trauma due to combat as a combat engineer in Vietnam. Although VA treatment records do not show contemporaneous reports pertaining to tinnitus and the July 2017 VA examiner provided a negative etiology opinion as to direct service connection, as to presumptive service connection, the Veteran's spouse reported the Veteran having "ringing in the ears," the Veteran clarified having tinnitus after service in Vietnam, and the Veteran reported recurrent tinnitus during the July 2017 VA examination. As to continuity of symptomatology, the Veteran is competent to report tinnitus and medical evidence of noting during service is not required. Additionally, the Veteran reported recurrent tinnitus after separation and the Veteran's spouse reported the Veteran having ringing in the ears. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, service connection is warranted, and the claim is granted. REASONS FOR REMAND The remaining matters are remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR The July 2017 VA negative etiology opinion as to the Veteran's unspecified depressive disorder was inadequate because the examiner provided a medical conclusion without any rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007). Additionally, in the October 2021 Board hearing, the Veteran through his representative, raised the competency of the July 2017 VA examiner, specifically that the examiner lacked "at least one, if not two of the certifications" required under VHA directive 1603. The July 2017 VA negative etiology opinion as to the Veteran's heart disorder was inadequate because the examiner did not consider all of the Veteran's diagnosed heart disorders and provided a medical conclusion without any rationale. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Stefl, 21 Vet. App. at 125 (2007). The Veteran through his representative also raised the competency of the July 2017 VA examiner due to the examiner's apparent lack of required certifications under VHA directive 1603. The RO adjudicator is advised that when a challenge to an examiner's competence is presented, VA must respond to that contention by demonstrating the examiner's competence. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). Alternatively, another VA examination or responsive opinion may be obtained. 2. Schedule the Veteran for a VA examination with a VA psychiatrist or psychologist to obtain an opinion as to the nature and etiology of the Veteran's unspecified depressive disorder. All relevant medical and non-medical records must be made available for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must: (1) Provide a brief curriculum vitae as to medical qualifications, including all training and certifications completed under VHA directive 1603; and (2) Provide a comprehensive explanation for all opinions provided as to these questions: With the exception of PTSD and unspecified depressive disorder, does the Veteran have any other acquired psychiatric disorder diagnosis? Was the Veteran's unspecified depressive disorder and/or other acquired psychiatric disorder caused by combat and/or clearing mines in Vietnam? Was the Veteran's unspecified depressive disorder and/or other acquired psychiatric disorder caused by service-connected neurological disorder, to include Parkinson's disease and Parkinsonism? Was the Veteran's unspecified depressive disorder and/or other acquired psychiatric disorder aggravated by service-connected neurological disorder, to include Parkinson's disease and Parkinsonism? Although the examiner must review the VBMS file, his or her attention is drawn to the following: In the Veteran's April 1968 separation medical examination report, the service medical examiner noted no psychiatric abnormalities. In his April 1968 separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had nervous trouble of any sort. In a September 2016 VA treatment record, a VA physician assessed the Veteran with anxiety and depression. In an October 2016 statement, the Veteran's spouse reported the Veteran's psychiatric symptoms, to include domestic trouble, alcohol use, drug use, anger, physical altercations, depression, sleep impairment, trouble with activities of daily living, social isolation, memory impairment, anxiety, and panic attacks. In an October 2016 VA treatment record, a VA psychologist diagnosed the Veteran with major depressive disorder and unspecified trauma and stressor disorder under the DSM-V. The VA psychologist noted previous combat exposure, limited social support, and adjustment to retirement as contributing factors. A November 2016 VA treatment record reflects the Veteran's report of depression, anxiety, and panic attacks. The VA treating psychologist diagnosed the Veteran with unspecified depressive disorder under the DSM-V. In VA treatment records dated December 2016, January 2017, February 2017, March 2017, April 2017, and June 2017, a VA psychologist diagnosed the Veteran with unspecified depressive disorder under the DSM-V. The July 2017 VA examiner diagnosed the Veteran with unspecified depressive disorder under the DSM-V. In an October 2021 statement, the Veteran's step-daughter reported the Veteran's psychiatric symptoms, to include domestic trouble, anger, physical altercations, depression, and panic attacks. 3. Schedule the Veteran for a VA examination with a VA cardiologist to obtain an opinion as to the nature and etiology of the Veteran's heart disorder. All relevant medical and non-medical records must be ade available for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must: (1) Provide a brief curriculum vitae as to medical qualifications, including all training and certifications completed under VHA directive 1603; and (2) Provide a comprehensive explanation for all opinions provided as to these questions: With the exception of hypertensive heart disease, congestive heart failure, nonrheumatic aortic valve insufficiency, and nonrheumatic valve insufficiency, does the Veteran have any other diagnosed heart disorders? Do any of the Veteran's diagnosed heart disorders qualify within the generally accepted medical definition of cardio-vascular renal disease? Do any of the Veteran's diagnosed heart disorders qualify within the generally accepted medical definition of ischemic heart disease (IHD)? If the Veteran's heart disorders do not qualify as IHD, were the heart disorders caused by the Veteran's exposure to Agent Orange in Vietnam? Although the examiner must review the VBMS file, his or her attention is drawn to the following: In the Veteran's April 1968 separation medical examination report, the service medical examiner noted no heart abnormalities. In his April 1968 separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had chest pain or pressure. In a May 2016 non-VA treatment record, the Veteran reported bilateral leg swelling, worsening edema, dyspnea on exertion, shortness of breath, and orthopnea. Rest/Stress imaging testing revealed "perfusion of the LV is normal, wall motion normal limits." A May 2016 non-VA treatment record reflects the Veteran's diagnosis of hypertensive heart disease, chronic diastolic (congestive) heart failure, nonrheumatic aortic (valve) insufficiency, and nonrheumatic (valve) insufficiency. A July 2016 non-VA sonogram revealed no evidence of inflow obstruction from the posterior tibial veins up to the common femoral veins bilaterally. The July 2017 VA examiner diagnosed the Veteran with congestive heart failure, aorta insufficiency, and mitral insufficiency. An August 2017 VA treatment record reflects the Veteran's diagnosis of benign hypertensive heart disease. 4. Readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.