Citation Nr: 21006030 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-42 362 DATE: February 3, 2021 ORDER Entitlement to service connection for depression and anxiety, to include as secondary to a service-connected disability, is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for skin cancer of the face, arms, and back, to include as due to herbicide agent or sun exposure, is remanded. Entitlement to service connection for atrial fibrillation, to include as due to herbicide agent exposure or as secondary to hypertension, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to herbicide agent exposure or as secondary to hypertension or atrial fibrillation, is remanded. Entitlement to special monthly compensation based on loss or loss of use of a creative organ is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a diagnosed psychiatric disorder, to include depression or anxiety, at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for depression and anxiety, to include as secondary to a service-connected disability, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to January 1970. These matters come to the Board of Veterans’ Appeals (Board) from a March 2016 rating decision which, in pertinent part, denied entitlement to service connection for depression and anxiety, hypertension, atrial fibrillation, erectile dysfunction, and skin cancer of the face, arms, and back, and denied entitlement to special monthly compensation based on loss or loss of use of an organ. In March 2019, the Board remanded the matters for further development, to include obtaining VA examinations and medical opinions. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for depression and anxiety, to include as secondary to a service-connected disability. The Veteran contends that service connection is warranted for depression and anxiety. Specifically, he contends that he has depression and anxiety secondary to a service-connected disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of depression and anxiety and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA treatment records are silent for complaints of depression and anxiety, and while the Veteran reported several days of feeling down, depressed, or hopeless in October 2019, a depression screening was negative. The Veteran was afforded a VA examination in January 2016. The examiner noted that the Veteran did not currently take medications to treat a psychiatric disorder but indicated that the Veteran’s atrial fibrillation and skin cancer undoubtedly cause him stress. The examiner further indicated that the Veteran did not like to talk about his feelings, but that the Veteran’s activity level and demeanor reflected that he does not suffer from any significant mental health problems. As the Veteran did not have significant levels of depression and anxiety and was not diagnosed with any psychiatric disorder, the examiner concluded that the conditions could not be claimed as a result of service-connected conditions. In March 2019, the Board remanded the matter for a new VA examination and medical opinion as to the nature and etiology of any psychiatric disorder. A December 2019 VA examination report reflects the Veteran denied mental health treatment or taking medication for a psychiatric disorder. Upon examination, the Veteran was oriented with casual dress and no notable hygiene conditions. He presented with euthymic mood and a broad range affect, but walked with a slow, unsteady gait and had poor posture and muscle stiffness. After examining the Veteran and reviewing the claims file, the examiner indicated that there was no evidence to support the diagnosis of a psychiatric disorder. The Board finds that the January 2016 and December 2019 VA examiners’ opinions, taken together, are probative, because they are based on an examination and review of the Veteran’s medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes he has a current diagnosis of depression or anxiety, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence above finding that the Veteran does not have a current diagnosable psychiatric disorder. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current disability for VA purposes. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Therefore, service connection for depression and anxiety, to include as secondary to a service-connected disability, is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension at this time. While a December 2019 VA examiner conceded herbicide agent exposure, the examiner explained that herbicide agent exposure was not directly linked to the development of hypertension and that it was less likely than not that the Veteran’s hypertension was related to in-service herbicide agent exposure. As it appears that the examiner did not consider the National Academy of Sciences (NAS) Institute of Medicine’s Veterans and Agent Orange: Update 2012 which concluded that there is “limited or suggestive evidence of an association” between hypertension and herbicide exposure, or the 2018 update in which NAS moved hypertension from the “limited or suggestive evidence” category to the “sufficient evidence of an association” category, the Board finds the December 2019 VA opinion is inadequate. Thus, the Board finds that a remand is warranted for an addendum opinion as to the nature and etiology of the Veteran’s hypertension. 2. Entitlement to service connection for skin cancer of the face, arms, and back, to include as due to herbicide agent or sun exposure, is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for skin cancer of the face, arms, and back, to include as due to herbicide agent or sun exposure. Specifically, while a December 2019 VA examiner opined that the Veteran’s actinic keratoses and basal cell carcinomas were less likely than not incurred in or caused by service, to include in-service herbicide agent and sun exposure, the rationale provided pertained only to herbicide agents. Thus, the Board finds that a remand is warranted for an addendum opinion as to the nature and etiology of the Veteran’s skin cancer. 3. Entitlement to service connection for atrial fibrillation, to include as due to herbicide agent exposure or as secondary to hypertension, is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for atrial fibrillation, to include as due to herbicide agent exposure or as secondary to hypertension at this time. A decision on the remanded issue of entitlement to service connection for hypertension could significantly impact a decision on the issue of entitlement to service connection for atrial fibrillation. Thus, the issues are inextricably intertwined and a remand of the claim of entitlement to service connection for atrial fibrillation is required. The Board notes that while a December 2019 VA examiner opined that the Veteran’s atrial fibrillation was less likely than not proximately due to or caused by his hypertension, as there is no known direct causal association between atrial fibrillation or hypertension, the opinion is conclusory as the examiner did not provide an adequate rationale or basis for the Board to consider and weigh the opinion. Additionally, the examiner did not provide a complete opinion as to whether the Veteran’s atrial fibrillation is aggravated by his hypertension. Thus, if service connection for hypertension is granted on remand, an addendum opinion as to the nature and etiology of the Veteran’s atrial fibrillation should be obtained. 4. Entitlement to service connection for erectile dysfunction, to include as due to herbicide agent exposure or as secondary to hypertension or atrial fibrillation, is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for erectile dysfunction, to include as due to herbicide agent exposure or as secondary to hypertension or atrial fibrillation at this time. A decision on the remanded issues of entitlement to service connection for hypertension and atrial fibrillation could significantly impact a decision on the issue of entitlement to service connection for erectile dysfunction. Thus, the issues are inextricably intertwined and a remand of the claim of entitlement to service connection for erectile dysfunction is required. The Board notes that while a December 2019 VA examiner opined that the Veteran’s erectile dysfunction was less likely than not proximately due to or caused by his hypertension or atrial fibrillation, as there is no known direct causal association between erectile dysfunction and hypertension or atrial fibrillation, the opinions are conclusory as the examiner did not provide an adequate rationale or basis for the Board to consider and weigh the opinion. Thus, if service connection for hypertension or atrial fibrillation is granted on remand, an addendum opinion as to the nature and etiology of the Veteran’s erectile dysfunction should be obtained. 5. Entitlement to special monthly compensation based on loss or loss of use of a creative organ is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for erectile dysfunction could significantly impact a decision on the issue of entitlement to special monthly compensation based on loss or loss of use of a creative organ, the issues are inextricably intertwined. A remand of the claim of entitlement to special monthly compensation is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records from July 2020 to present. 2. Obtain an addendum opinion from an appropriate clinician as to the Veteran’s hypertension. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s hypertension at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that hypertension is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner is asked to discuss the National Academy of Sciences (NAS) Institute of Medicine’s 2018 update in which NAS moved hypertension from the “limited or suggestive evidence” category of an association between hypertension and herbicide agent exposure to the “sufficient evidence of an association” category. 3. Obtain an addendum opinion from an appropriate clinician as to the Veteran’s actinic keratoses and basal cell carcinomas. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s skin cancer, diagnosed as actinic keratoses and basal cell carcinoma, at least as likely as not related to service, including in-service sun exposure? Provide a rationale to support the opinion(s). 4. If, and only if, the Veteran is granted service connection for hypertension, obtain an addendum opinion from an appropriate clinician as to the Veteran’s atrial fibrillation. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s atrial fibrillation at least as likely as not proximately due to hypertension? If not, is the Veteran’s atrial fibrillation at least as likely as not aggravated, i.e., worsened beyond its natural progression, by hypertension? 5. If, and only if, the Veteran is granted service connection for hypertension or atrial fibrillation, obtain an addendum opinion from an appropriate clinician as to the Veteran’s erectile dysfunction. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s erectile dysfunction at least as likely as not proximately due to hypertension or atrial fibrillation? If not, is the Veteran’s erectile dysfunction at least as likely as not aggravated, i.e., worsened beyond its natural progression, by hypertension or atrial fibrillation? 6. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.