Citation Nr: 21007132 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-12 499 DATE: February 8, 2021 ORDER Entitlement to service connection for a bilateral eye disorder, to include pterygium and refractive disorder is dismissed. Entitlement to service connection for a prostate disability is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is granted. REMANDED Entitlement to service connection for hypertension, to include secondary to a psychiatric disability, is remanded. FINDINGS OF FACT 1. In a November 2020 statement, the Veteran withdrew his claim of entitlement to service connection for a bilateral eye disorder, to include pterygium and refractive disorder, as well as of entitlement to service connection for a prostate disability. 2. The Veteran’s psychiatric disability is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal with respect to the issue of entitlement to service connection for a bilateral eye disorder, to include pterygium and refractive disorder, as well as of entitlement to service connection for a prostate disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for service connection for an acquired psychiatric disability, to include major depressive disorder, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1968 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2018. The issues of entitlement to service connection for a bilateral eye disorder, a prostate disability, hypertension, and a psychiatric disability were denied. The Veteran appealed the October 2018 decision to the Court of Appeals for Veterans Claims (CAVC). In a December 2019 Joint Motion for Remand (JMR), the CAVC vacated the October 2018 Board decision and remanded the issues for readjudication. All four claims were vacated due to the Board’s failure to address translated documents received in June 2018 as well as whether the August 2015 Department of Veterans Affairs (VA) examination was adequate. In a November 2020 statement, the Veteran’s attorney argued a November 2020 private examination will cure the deficiencies in the record and the Veteran waives any right he might have for additional development, to include a new VA examination. As discussed below, the Board finds a VA examination is warranted for the hypertension claim, however, the Board will proceed to the merits as it relates to the psychiatric claim. Also, the November 2020 statement waived the RO’s initial review of documents received after the February 2017 statement of the case. The Board notes translated documents were added to the file in June 2018. However, they are not related to the claims on appeal. The documents consist of complaints related to heart disease and chest pains as well as documents related to the Veteran’s education. Withdrawal 1. Entitlement to service connection for a bilateral eye disorder, to include pterygium and refractive disorder 2. Entitlement to service connection for a prostate disability An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Such withdrawal may be made by the veteran or by his or her authorized representative. Id. In a November 2020 statement, the Veteran withdrew his claim of entitlement to service connection for a bilateral eye disorder, to include pterygium and refractive disorder, as well as of entitlement to service connection for a prostate disability. The Board received this written request to withdraw prior to the promulgation of a decision. 38 C.F.R. § 20.205. Consequently, there remains no allegation of error of fact or law for appellate consideration with respect to this claim. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the claim of entitlement to service connection for a bilateral eye disorder and entitlement to service connection for a prostate disability. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 3. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that his acquired psychiatric disorder manifested in service as anxiety complaints. Based on the reasons discussed below, the Board will resolve doubt in the Veteran’s favor and grant service connection. In July 1968 service treatment record (STR) noted two incidents of recurrent hyperventilation attack. A September 1969 service treatment record noted anxiety symptoms. At that time the Veteran reported a history of pain in the chest and difficulty breathing. A few days later in September 1969 the Veteran reported the same symptoms and an impression was largely psychosomatics. During an internal medicine consultation, the doctor requested an evaluation to confirm if the impression of “anxiety [versus] other psychosomatic etiology” is correct. A March 1970 service treatment record noted the Veteran experienced recurrent hyperventilation syndrome with syncope. He described the feeling as “recurrent attacks of difficulty in breathing, pains under his breastbone, and anxiety,” beginning at approximately age 17. The doctor indicated there were no signs of psychosis neurosis, or central nervous system organicity are found. The Veteran admitted that his attacks of shortness of breath and chest pain ‘happened every time he was excited for something. After clinical evaluation, the impression was recurrent hyperventilation syndrome secondary to routine stress of military life. A May 1970 separation examination revealed a normal psychiatric condition following clinical evaluation. Turning to the post-service medical records, in July 1973 the Veteran underwent a general VA examination. The examiner noted an impression of “anxiety neurosis?” The final report noted there was no evidence of a psychiatric disorders. A July 2014 VA treatment record noted the Veteran underwent a psychological evaluation and was diagnosed with major depressive disorder with psychotic features. In October 2014 VA treatment records, the Veteran reported beginning private treatment for the psychiatric condition in 2009. A November 2014 VA treatment record notes the Veteran reported that he “continue[s] to think about the discrimination that [he] was exposed [to] in Vietnam.” A July 2015 VA treatment record notes the Veteran continued to be “severely depressed” and he mentioned “the environment and Vietnam” as “the important factor.” An August 2015 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with unspecified anxiety disorder. The examiner opined that the Veteran’s condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned there was no evidence of psychiatric complaints, findings, or treatment during service or within one year of separation from service. The Veteran first sought psychiatric treatment in 2014, forty-four years after separation from service. The examiner indicated the medical evidence establishes that the single incident occurred in service, and the recurring symptoms of anxiety and hyperventilation in service were acute, transient, and resulted in no residual disability. In February 2017, a VA mental status examination indicated the Veteran was diagnosed with major depressive disorder. In November 2020, the Veteran’s son, E.L., submitted a statement in which he recalled the Veteran explaining he was unable to sleep because of feeling anxious. He indicated the Veteran has sporadic behavior and has been aggressive towards the son’s mother. In November 2020 the Veteran submitted a private examination from M.C., M.D., F.A.C.P. The psychiatrist indicated review of the medical record, service record, VA examination reports, lay statements, and ancillary information. The Veteran was diagnosed with severe major depressive disorder with mood-congruent psychotic features and anxious distress. The examiner found the Veteran began experiencing symptoms of mental illness during active duty service in 1968. The symptoms, low energy, irritability, hopelessness, sadness, helplessness, and despair were severe at the onset, and escalated during service. By discharge the Veteran had a combination of significant anxiety and depressive symptomatology. The psychiatrist noted the Veteran, corroborated by medical evidence, “described well over forty years of intractable major depressive disorder.” A family history of mental illness was noted, however, the psychiatrist found research is not advanced to the point where once could conclude the Veteran’s family history of mental illness is a pre-existing condition. Upon review of the evidence in conjunction with applicable laws and regulations, and for the reasons explained below, the evidence is relative equipoise as to whether the Veteran’s current psychiatric disability is related to active duty service. The Board finds it is at least as likely as not that the Veteran’s current psychiatric disability developed during his period of active duty service. In this regard the Boards find the November 2020 private opinion is more persuasive than the August 2015 VA opinion. The November 2020 psychiatrist reviewed the Veteran’s file and provided an accurate factual basis for the opinion. Furthermore, the opinion is consistent with the record as the Veteran has an in-service anxiety diagnosis and the private psychiatrist found the in-service symptoms reflected a combination of significant anxiety and depressive symptomatology. To the contrary the August 2015 VA examination is inadequate as outlined in the December 2019 JMR. The Court found, The Board failed to reconcile the August 2015 VA examiner’s findings of “no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment” with the examiner’s subsequent finding noting a “single incident” occurred in service and additionally failed to discuss the adequacy of the examination in light of the service treatment records indicating instances in July 1968, September 1969,and March 1970. Additionally, the August 2015 VA examiner stated that Appellant did not seek psychiatric treatment until 2014. [R. at 357]. However, the record indicates that Appellant reported that he began seeking treatment in 2009. R. at 415(October 14, 2014 Social Work Initial Evaluation Note from Ponce OPC)] Upon resolution of all reasonable doubt in favor of the Veteran, the Board finds the in-service anxiety diagnoses and the final diagnosis of severe major depressive disorder with mood-congruent psychotic features and anxious distress supports a grant in this case. Accordingly, service connection for a psychiatric disability, to include major depressive disorder, is warranted. REASONS FOR REMAND Entitlement to service connection for hypertension, to include secondary to a psychiatric disability The Veteran claims he suffers from a hypertension disability related to herbicide exposure and his psychiatric disability. In November 2020 the Veteran submitted a private examination from M.C., M.D., F.A.C.P. The psychiatrist indicated the Veteran suffers from a long history of refractory hypertension. Citing to various medical studies, it was opined the Veteran’s depression more likely than not, caused his hypertension. It was noted, “patients with depression exhibit increased sympathetic tone and decreased parasympathetic activity, which contributes to an increase (and poor control) of blood pressure and may increase the risk of cardiac arrhythmias.” The psychiatrist specifically noted a study which found descriptions of increased prevalence of hypertension in depressed patients and an increased prevalence of depression in hypertensive patients is directly related to the Veteran as he has faced “the intractable nature of both disease processes, with depression independently contributing to the onset and refractory nature of hypertension in patients with severe mental illness.” It was noted, the Veteran’s depressive symptoms “predate the 2012 diagnosis of hypertension and the robust body of medical literature clearly demonstrates that depression is a significant risk in the development of hypertension.” Service connection on a secondary basis requires evidence that the hypertension is “proximately due to or the result of” a service-connected disease or injury; or is aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a),(b). In this case, the Board finds the November 2020 opinion relies on co-morbidity factors rather than whether the Veteran’s hypertension is proximately due to or the result of the service-connected psychiatric disability. The Veteran was not afforded a VA examination in connection with the claim for service connection for hypertension as secondary to a psychiatric disability. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case the Board finds the evidence of record demonstrates a current disability, a disability related to service in light of this decision granting service connection for the psychiatric disability, and an indication that the hypertension is related to the service-connected psychiatric disability. However, there is insufficient competent medical evidence on file to adjudicate the hypertension claim. Accordingly, a VA opinion addressing the etiology of the Veteran’s hypertension is warranted. The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Arrange for an appropriate VA examiner to provide an opinion of the nature and etiology of diagnosed hypertension; specifically, whether the hypertension is proximately due to, the result of, or aggravated by, the now service-connected psychiatric disability. The examiner shall provide an opinion as to the following questions: a) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s current hypertension is proximately due to or the result of the service-connected psychiatric disability? b) If the answer to the above question is negative, is it at least as likely as not (a fifty percent probability or greater) that current hypertension was aggravated by service-connected psychiatric disability (i.e., was there in increase in severity of nonservice-connected hypertension that is proximately due to or the result of the service-connected psychiatric disability). In formulating a response to the above, specific consideration and discussion of the November 2020 private opinion from M.C. must be included. A detailed rationale supporting the examiner’s opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. Note: The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.