Citation Nr: 21076678 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 12-02 738A DATE: December 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than paranoid schizophrenia with substance abuse is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran had an acquired psychiatric disorder other than paranoid schizophrenia with substance abuse at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's hypertension had its onset during service or within one-year of discharge from service; the weight of the probative evidence is against finding that the Veteran's hypertension was etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder other than paranoid schizophrenia with substance abuse have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 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 June 1974 to June 1975. The Veteran died in May 2016 during the pendency of the appeal. The appellant is the Veteran's surviving spouse, who has been substituted as the claimant for the purposes of processing the appeal to completion. See July 27, 2016 VA correspondence. The matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of that hearing is of record. In November 2016, the appellant was notified that the VLJ who presided over the April 2016 hearing was no longer employed at the Board and she was given the opportunity to elect to have another hearing. That letter was returned as undeliverable. In January 2017, the appellant called advising that she had moved and provided her new address. She also advised that she did not wish to appear at another Board hearing. In February 2017, the Board found that new and material evidence had been received to reopen the claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. The Board remanded the above matters for further development. In February 2021, the Board recharacterized the claim for an acquired psychiatric disorder by bifurcating it into three separate issues: 1) entitlement to service connection for PTSD; 2) entitlement to service connection for an acquired psychiatric disorder, to include depression and schizophrenia (other than PTSD); and 3) entitlement to service connection for a substance abuse disability, to include as secondary to an acquired psychiatric disorder. The Board remanded these claims along with above matters for further development, to include obtaining outstanding private treatment records. Subsequently, VA sent the appellant a letter in March 2021 and April 2021 requesting her to complete and return an enclosed VA Form 21-4142, Authorization for Release of Information, and VA Form 21-4142a, General Release for Medical Provider Information, so that VA could attempt to obtain identified private medical records. Unfortunately, no response to VA's request was received. Accordingly, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). In an August 2021 rating decision, the RO granted service connection for paranoid schizophrenia with substance abuse. As this grant represents a full grant of the benefits sought on appeal with respect to those issues, the matter before the Board is whether service connection is warranted for an acquired psychiatric disorder other than paranoid schizophrenia with substance abuse. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, to include hypertension, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Entitlement to service connection for an acquired psychiatric disorder other than paranoid schizophrenia with substance abuse. As previously discussed, service connection for paranoid schizophrenia with substance abuse was granted in an August 2021 rating decision. Accordingly, the issue before the Board is whether service connection is warranted for an acquired psychiatric disorder other than paranoid schizophrenia with substance abuse. The Veteran's service treatment records (STRs) and military personnel records indicate that that he was counseled for certain behaviors during his active service. Specifically, in January 1975, the Veteran was counseled about having problems with oversleeping and issues with personal hygiene. In March 1975, he was counseled for not leaving his bed (not awakening) and not doing his share of tasks. There are several incidents of the Veteran not showing up on time for various responsibilities. In June 1975, a clinical note indicated that a psychiatric consultation was recommended. In June 1999, the Veteran enrolled in a VA substance abuse residential treatment program for alcohol and cocaine dependence. The Veteran was afforded a VA examination in July 1999, in which he reported that while stationed in Germany his job required him to process vehicles returning from Vietnam. The Veteran reported that he constantly fantasized about who might have been in the vehicles, what caused the damage to the vehicles, and whether those individuals in the vehicles were injured. The Veteran reported that he began to drink and use drugs in order to deal with these thoughts. The examiner noted that the Veteran's thoughts reached to the point that he was fantasizing that he could have been one of the individuals in those vehicles if he had been sent to Vietnam. The examiner diagnosed the Veteran with major depression and PTSD. A January 2001 VA psychological consultation noted diagnoses of mood disorder, probably secondary to cocaine and alcohol abuse/withdrawal, with suicidal ideation and psychotic features. During a July 2001 VA examination, the Veteran reported having a history of depression since the 1970s. The examiner noted diagnoses of polysubstance abuse, which has continued since age 17, and some depressive symptoms. However, the examiner noted that no syndrome of depressive illness was found upon examination and that the Veteran's depressive symptoms were due to his life circumstances and polysubstance abuse. A 2014 and 2015 VA mental health treatment note revealed diagnoses of paranoid schizophrenia, depression not otherwise specified, and history of cocaine and alcohol abuse in remission. A July 2021 VA examiner noted that the Veteran's VA treatment records revealed that he was diagnosed with schizophrenia in 2004, 2007, 2008, 2010, 2011, 2014, and 2015; as well as diagnosed with depressive disorder in 2001, 2008, and 2015. The examiner also noted that the Veteran had multiple diagnoses of cocaine dependence from 2008-2015 and was diagnosed with alcohol abuse in 2001. The examiner noted that records from 2014 noted a traumatic event occurred in Germany when the Veteran was 17 years old and that other notes report this as dreams about damaged vehicles from Vietnam he cleaned while stationed in Germany. The examiner indicated that the main consistent diagnoses in the VA treatment records were paranoid schizophrenia and substance abuse. Thus, the examiner concluded that the Veteran had diagnoses of paranoid schizophrenia and substance abuse (cocaine and alcohol) that were chronic. The examiner stated that there was evidence of behavior change during service that was consistent with the onset of schizophrenia and this resulted in counseling during service and recommendation for a psychological evaluation. He further noted that the records indicate that Veteran reported first having auditory hallucinations consistent with schizophrenia while stationed in Germany. The examiner concluded that based on a review of the Veteran's claims file, to include military STRs and post-service mental health treatment records, and the DSM-5 diagnosis criteria, there is no strong evidence of a diagnosis of PTSD or major depressive disorder and the mood variability associated with schizophrenia more likely than not was misdiagnosed by different providers. He stated that the stressor reported of cleaning vehicles in Germany after they came back from Vietnam would not reasonably be associated with PTSD and is not related to any fear of hostile activity or military sexual trauma. He also stated that it is highly possible that the reported stressor may have been a delusion associated with schizophrenia. After considering all of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder other than paranoid schizophrenia with substance abuse. The preponderance of the evidence of record does not establish that the Veteran had an acquired psychiatric disorder other than paranoid schizophrenia with substance abuse during the appellate period. Specifically, the July 2021 VA examiner reviewed the claims file and attributed the Veteran's symptoms to service-connected paranoid schizophrenia with substance abuse, rather than a separately diagnosed disability. The Board finds the July 2021 medical opinion to be probative because the opinion is based on a detailed review of the claims file, to include the Veteran's medical history and lay accounts, as well as contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In reaching this decision, the Board has carefully considered the Veteran's statements regarding depression and PTSD symptoms. However, the Veteran has not been shown to have the medical expertise required to diagnose and determine the etiology of a psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board ultimately affords more probative weight to the competent opinion of the July 2021 VA examiner. In sum, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Entitlement to service connection for hypertension. For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means the diastolic blood pressure (the bottom number) is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure (the top number) is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. At the outset, the Board acknowledges that the Veteran was not afforded a VA examination and medical opinion with respect to the claim for service connection for hypertension but finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obligated to provide an 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, but (4) there is insufficient competent medical evidence on file to decide the claim. Id. The Board finds that in the instant matter, there is no competent evidence of any in-service injury or event that may be etiologically related to the diagnosed hypertension or that it may be related to service. For these reasons, the Board finds a VA medical opinion is not necessary to decide the claim of service connection. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). The Veteran's STRs show that his blood pressure readings were within normal limits. On June 1974 induction examination, his blood pressure was 122/60 and on April 1975 examination his blood pressure was 110/70. Although there is no evidence when his hypertension was first diagnosed, the Veteran's June 1999 VA treatment records, which are the earliest available treatment records, show that he had a past history of hypertension. The Veteran testified that he was diagnosed with hypertension within one year of separation from service while he was incarcerated in the Mississippi Department of Corrections. See April 2016 Board hearing transcript. However, as previously discussed, after the February 2021 Board remand, the RO sent a letter to the appellant requesting that she identify any relevant medical treatment records for VA to obtain. In this regard, the RO asked the appellant to complete and return VA Forms 21-4142 and 21-4142a. See March 2021 and April 2021 VA correspondence. The Board notes that the appellant did not respond. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the appellant failed to provide these records or identify them for VA to obtain, VA's duty to assist in development as to this matter is met. Accordingly, the Board concludes that while the Veteran had a diagnosis of hypertension during the appellate period, it was neither chronic in service nor manifested to a compensable degree in service. Additionally, the evidence of record does not show that he was diagnosed with hypertension within the one-year presumptive period and continuity of symptomatology has not been established. Moreover, the preponderance of the evidence is against finding that the Veteran's hypertension was etiologically related to service. The Board acknowledges the Veteran's testimony that he may have been exposed to herbicide agents from vehicles that were previously used in Vietnam. See April 2016 Board hearing transcript. However, with the express exception of C-123 aircraft known to have been used to spray herbicide agent during the Vietnam era, VA does not concede exposure to herbicide agents resulting from use of vehicles or equipment that was returned from Vietnam. See 38 C.F.R. § 3.307(a)(6)(v). Accordingly, coming into contact with vehicles or using equipment that was allegedly returned from Vietnam does not establish exposure to herbicide agents. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Additionally, the Board finds that any service connection theory based on alleged herbicide exposure is unsupported by competent, persuasive evidence. The "second-hand" exposure alleged by the Veteran is too remote and attenuated to support a finding of actual exposure. Importantly, the Veteran has merely contended generally that the vehicles and equipment he handled in the course of his duties had been exposed to herbicide agents in Vietnam. He essentially is alleging some residual contamination, but such vehicles or equipment actually being present in Vietnam has not been verified. Moreover, in April 2011, the RO issued a formal finding determination that the information required to corroborate exposure to Agent Orange was insufficient to send to the Joint Services Research Center (JSRRC) or the National Archives and Records Administration (NARA). The formal finding stated that there was no evidence to substantiate the Veteran's claimed exposure as there was no herbicide agent exposure in Germany and the Veteran did not serve in Vietnam. In sum, the Board finds that the evidence weighs against a finding that the Veteran's hypertension arose in service, within one-year of service, or was otherwise etiologically related to active service. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim for service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert,1 Vet. App. at 55. REASONS FOR REMAND 3. Entitlement to service connection for a bilateral knee disability. The Veteran testified during the April 2016 Board hearing that he injured his knees during basic training, and that his knees continued to flare-up and swell while stationed in Germany. He further testified that he did not seek continuous treatment for his knees during service because the expectation was that he should "suck things up" and "tough it out." The Veteran's July 1974 STRs reflect a diagnosis for right and left knee chondromalacia patella. The Veteran has testified that he received private medical treatment for his knee disabilities shortly after separation from service. The earliest available treatment record showing a bilateral knee disability is a June 1999 VA medical record noting that the Veteran had arthroscopic surgery on both knees eight years prior. During a June 1999 psychological evaluation, the Veteran reported that he applied for Social Security Disability (SSD) benefits for his knee disabilities in 1994, which was denied. The claims file does appear to contain any records from the Social Security Administration (SSA), to include medical records, which may pertain to the Veteran's knee disability. Accordingly, remand is necessary to obtain any available outstanding SSA records. See Golz v. Shinseki, 590 F.3d 1317, 132021 (Fed. Cir. 2010) (VA's duty to assist includes obtaining records from SSA when potentially relevant). 4. Entitlement to TDIU. As the outcome of the claim for service connection for a bilateral knee disability may have a direct impact on the issue of entitlement to TDIU, the claim for TDIU is inextricably intertwined with the claim for service connection and consideration of the claim for TDIU must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). (Continued on next page) The matters are REMANDED for the following action: 1. Obtain any available records from SSA, including copies of any benefit decisions, and copies of all associated medical records in the custody of SSA. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefit sought is not granted to the appellant's satisfaction, send the appellant a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Shamil Patel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.