Citation Nr: 21005419 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-08 030 DATE: February 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, characterized as major depression and anxiety, is denied. Entitlement to service connection for hypertension, to include as secondary to exposure to herbicidal agents and/or contaminated water at Camp Lejeune, is denied. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorder, characterized as major depression and anxiety, was not shown in service or for many decades following separation, and is not otherwise related to active duty service. 2. The Veteran’s hypertension was not shown in service or for many decades following separation, and is not otherwise related to active duty service, including as due to exposure to either herbicidal agents or contaminated water at Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include major depression and anxiety, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hypertension, to include as secondary to exposure to herbicidal agents and/or contaminated water at Camp Lejeune, 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 March 1972 to March 1974. These matters return to the Board of Veterans’ Appeals (Board) following a January 2018 remand decision from the Board which directed the Regional Office (RO) to complete additional development for the Veteran’s claims. Service Connection The Veteran has submitted claims for service connection for an acquired psychiatric disorder, characterized as major depression and anxiety, and hypertension. Specifically, he has claimed that has psychiatric disorder was caused by an in-service assault, and that his hypertension is due to exposure to herbicidal agents and/or contaminated water at Camp Lejeune. The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed to toxic herbicides during such service. 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). Recently, in Procopio v. Wilkie, 913 F.3d 1371, 1379 (Fed Cir. 2019) (en banc), the United States Court of Appeals for the Federal Circuit further clarified that the term “Republic of Vietnam” refers to both the Republic of Vietnam’s “landmass and its 12 nautical mile territorial sea.” Additionally, diseases that are presumed to be related to toxic herbicide exposure include lung and prostate cancer. See 38 C.F.R. §§ 3.307, 3.309. Additionally, effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to allow presumptive service connection for certain enumerated diseases related to exposure to contaminated drinking water at Camp Lejeune. Under the new regulations, a veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a veteran, or former reservist or member of the National Guard, was exposed to contaminants in the water supply at Camp Lejeune during military service and the exposure meets the requirements of 38 C.F.R. § 3.307 (a)(7), the following diseases will be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of § 3.307(d): (1) kidney cancer; (2) liver cancer; (3) Non-Hodgkin’s lymphoma; (4) adult leukemia; (5) multiple myeloma; (6) Parkinson’s disease; (7) aplastic anemia and other myelodysplastic syndromes; and (8) bladder cancer. 38 C.F.R. § 3.309 (f). 1. Entitlement to service connection for an acquired psychiatric disorder, characterized as major depression and anxiety As for whether service connection is warranted an acquired psychiatric disorder, to include major depression and anxiety, the Board determines that service connection is also not warranted on this basis. While the Board notes that the Veteran has current diagnosis of depression, it was not shown in service or related to service, moreover, he has not been diagnosed with anxiety. 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), (d). As an initial matter, the large gap in treatment for an acquired psychiatric disorder weighs against the Veteran’s claim. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Moreover, the Veteran’s in-service records do not reflect signs, symptoms, treatment, or a diagnosis of a psychiatric disorder. Specifically, the Veteran’s March 1974 separation examination does not indicate the presence of any disorder, including those of a psychiatric nature. The first indication of psychiatric treatment came in June 2010 when the Veteran was referred for an evaluation for depression, approximately 36 years following separation from service. The Board notes and acknowledges the statements from the Veteran and his wife regarding continuous symptoms. However, the Board is unable to grant service connection purely on his statements alone. Specifically, While the Veteran has asserted continuous symptoms, the medical evidence of record weighs heavily against his testimony. Therefore, based on the clinical evidence of record, service connection cannot be established through continuity of symptomatology or the Veteran's statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Next, although the evidence does not reflect that the Veteran’s symptoms were continuous since service, service connection may nonetheless be established if a relationship is otherwise demonstrated by competent evidence, including medical evidence and opinions. Here, the competent evidence fails to establish a relationship between active duty and the Veteran’s current acquired psychiatric disability. To this end, the Veteran was afforded an examination in October 2020, an addendum opinion was provided several days after to clarify the examiner’s reasons and bases. At the examination, the Veteran reiterated his account of an in-service assault and another in-service incident. The examiner noted that the Veteran was first diagnosed with depression in June 2010 and that their review of the Veteran’s medical records did not indicate any psychiatric treatment or a diagnosis of a psychiatric disorder in the period between separation and June 2010. The examiner endorsed a diagnosis of depression, but no other psychiatric disorder. Overall, the examiner opined that the evidence did not support the finding of a nexus between the Veteran’s psychiatric disorder and his active duty service. The examiner who provided the October 2020 addendum opinion reiterated the previous examiner’s findings and noted the Veteran’s medical records had been silent for over 30 years for any psychiatric treatment. The examiner opined that there was no basis to find a nexus between the Veteran’s acquired psychiatric disorder and his time in active duty service. As such, the Board cannot find that service connection for an acquired psychiatric disorder is warranted in this case. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating the disorder on appeal to his active service. The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of psychiatric disorders. See Jandreau, 492 F.3d at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the Veteran’s contentions linking his disorder to service are found to lack competency. The Board also observes that the Veteran has not submitted sufficient evidence, including private opinions and/or examinations, to support his service connection claim. Considering the above discussion, the Board concludes that the weight of the evidence is against the claim for service connection for an acquired psychiatric disorder and there is no doubt to be otherwise resolved. The appeal is denied. 2. Entitlement to service connection for hypertension, to include as secondary to exposure to herbicidal agents and/or contaminated water at Camp Lejeune As an initial matter, the Board finds that the Veteran is not entitled to service connection for hypertension on a presumptive basis due to herbicide agent exposure per 38 C.F.R. §§ 3.307 (a)(6)(ii) and 3.309(e). The Veteran’s military personnel records reflect that he was stationed within the territorial waters of Vietnam, as such, the Veteran’s exposure to herbicide agents is presumed. 38 C.F.R. §§ 3.307 (6) (iv), 3.309 (e). Although the Veteran is presumed to have been exposed to herbicide agents, hypertension is not listed as a condition under 38 C.F.R. § 3.309 (e) as a disease associated with exposure to certain herbicide agents. To this end, the Veteran was provided a VA examination in July 2020 to address his contention that exposure to herbicidal agents led to his development of hypertension. The examiner noted that the Veteran’s medical records did not show a diagnosis or treatment of hypertension until 2009. Additionally, they opined regarding studies conducted to examine the relationship between hypertension and exposure to herbicidal agents. The examiner noted that the study in question, conducted by the National Academy, was limited in nature and did not address any other potential cause of hypertension, including those that are most common, including: age, race, obesity, physical inactivity, hypercholesteremia, family history, tobacco use, diet, and alcohol use. The examiner concluded that the Veteran’s hypertension was less likely than not related to active duty as he had a history of the known risk factors in the development of hypertension, including obesity, alcohol use, 30 years of smoking, family history, physical inactivity, and being of the male sex. The examiner noted that hypertension is developed along multifactorial lines and the presence of so many comorbidities led them to conclude that the Veteran’s hypertension was more likely than not as a result of those multiple common factors, and not due to any exposure to herbicidal agents in service. Next, the Veteran has also claimed that his hypertension is secondary to exposure to contaminated water at Camp Lejeune. However, the Board finds that service connection for the Veteran’s hypertension is not warranted as a matter of law because hypertension is not a disease for which presumptive service connection is available under 38 C.F.R. § 3.309 (f). The Veteran has more than 30 days of documented service at Camp Lejeune. However, while the May examination report reflect that the Veteran was diagnosed with hypertension in 2009 following a heart attack, the examiner did not find sufficient evidence to support a nexus between the Veteran’s exposure to contaminated water at Camp Lejeune and his currently diagnosed hypertension. Moreover, the Veteran has not been diagnosed with a disorder that would be found presumptive as secondary to exposure to contaminated water at Camp Lejeune. Although the Veteran’s primary assertions have been addressed above, the Veteran is not precluded from establishing service connection for hypertension with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the competent evidence fails to establish a relationship between active duty and the Veteran’s hypertension. First, the Board finds that the Veteran is not entitled service connection for hypertension on a presumptive basis for chronic conditions per 38 C.F.R. §§ 3.307 (a)(3) and 3.309(a). The Veteran’s service treatment records, including his March 1974 separation examination are silent for any signs, symptoms, treatment, or a diagnosis for hypertension. Moreover, the Veteran has not asserted such a claim. The clinical evidence of record does not contain a diagnosis for hypertension during or within one year of active service, and the Veteran has not asserted that his hypertension was diagnosed prior to his 2009 heart attack. Accordingly, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus. Here, with respect ot the Veteran’s kidney disease, the Board places significant probative weight on the opinions of the May and June 2020 examiners. While the examiners primarily discussed the Veteran’s hypertension in relation to his claims of presumptive service connection via exposure to herbicidal agents and/or contaminated water at Camp Lejeune, they both noted that the Veteran’s service treatment records were silent for any indications of hypertension, and that there was a decades long gap between his separation from service and eventual diagnosis of hypertension. Additionally, both examiners spoke to the presence of comorbidities and risk factors including age, sex, obesity, and smoking in the Veteran’s medical history. Both examiners concluded that the development of hypertension was likely due to these factors, as such, the Board construes their opinions to exclude the possibility of either presumptive or direct service connection. With respect to the Veteran’s hypertension, the Board finds that there is not sufficient evidence in the medical records to demonstrate a nexus between his active service and his hypertension. Indeed, there is no objective medical evidence which supports a finding of direct service connection for the Veteran’s hypertension. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his hypertension to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his hypertension. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, the disorders on appeal are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his disorders are related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection, either direct or presumptive, for hypertension, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel