Citation Nr: 21008263 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 16-35 949A DATE: February 12, 2021 ORDER Entitlement to service connection for acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for asthma, to include as due to exposure to ionizing radiation and/or asbestos, is denied. Entitlement to service connection for sleep apnea, to include as due to exposure to ionizing radiation and/or asbestos, is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to trichlorethylene, ionizing radiation and/or asbestos is remanded. Entitlement to service connection for diabetes, type I, to include as due to exposure to trichlorethylene, ionizing radiation and/or asbestos is remanded. Entitlement to service connection for right foot disability is remanded. Entitlement to service connection for left foot disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that an acquired psychiatric disorder began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had asthma at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence is against finding that sleep apnea began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for asthma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1960 to August 1960, and from March 1961 to December 1963, to include service in Korea from April 27, 1961 to August 10, 1962. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned VLJ in March 2019. The issues discussed at the hearing included the issues above and entitlement to service connection for bilateral hearing loss. In July 2019, the Board granted service connection for bilateral hearing loss, which was implemented by a May 2020 rating decision. The Board remanded the remaining issues for further development to include providing VA examinations, updating VA treatment records, and verifying exposure to asbestos and ionizing radiation. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 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, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Additionally, service connection is warranted for certain conditions due to radiation exposure in service. Service connection may be presumed for certain diseases claimed to be due to ionizing radiation exposure, provided the disease manifests in a radiation exposed veteran and is found five years or more after service. 38 C.F.R. §§ 3.309(d), 3.311(b)(2)(xxiii); Ramey v. Brown, 9 Vet. App. 40 (1996). A radiation exposed veteran is one who participated in a radiation risk activity. A radiation risk activity includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). If a radiation risk activity has been shown, VA need not document a veteran’s radiation exposure level. In all other cases, when a claim involves a radiogenic disease that first manifests after the applicable presumption period and a veteran contends that disease resulted from in-service ionizing radiation exposure, VA must obtain a radiation dose assessment. 38 C.F.R. § 3.311(a)(2). VA must then forward that information to the Under Secretary for Benefits for consideration in accordance with 38 C.F.R. § 3.311(c). The Under Secretary for Benefits may request an advisory medical opinion from the Under Secretary of Health. The medical advisor must determine whether sound scientific and medical evidence supports a conclusion that the disease at least as likely as not resulted from in service radiation exposure. 38 C.F.R. § 3.311(c)(1). Other “radiogenic” disease, such as any form of cancer, listed under 38 C.F.R. § 3.11(b)(2), found five or more years after service (for most of the listed diseases) in an ionizing radiation exposed veteran may be service-connected if VA Under Secretary for Benefits determines it is related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure in service. Other claimed diseases may be considered radiogenic if the Veteran has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). 1. Entitlement to service connection for acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD) The Veteran contends his psychiatric conditions, to include PTSD and depression, are due to his time in service, specifically the stress of bootcamp and of having to deal with a family emergency during service. 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, while the Veteran has current diagnoses of major depressive disorder and mild cognitive impairment, and evidence shows that he was discharged to take care of his ailing father and business, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of major depressive disorder began during service or is otherwise related to an in-service injury, event, or disease. The Veteran testified at the March 2019 Board hearing that he experienced significant distress in service dealing with a family emergency. Military personnel records indicate that the Veteran was discharged due to personal hardship relating to his father’s ailing health. However, service treatment records, including entrance and separation examinations from both periods of active service, are negative for any complaints, treatment, diagnoses, or findings related to any psychiatric disorder. Though the Veteran contends he is diagnosed with PTSD, there is no diagnosis in the record. VA treatment records show the Veteran diagnosed with major depressive disorder in October 2014, decades after his separation from service. May 2019 VA treatment records reflect he is also diagnosed with mild cognitive disorder. While the Veteran is competent to report having experienced symptoms of depressed mood, low motivation, and social difficulties for years, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of major depressive disorder, mild cognitive disorder or PTSD. The issue is medically complex and is therefore outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The September 2020 VA examiner noted that the Veteran did not meet the diagnostic criteria for PTSD, the reported stressor of maltreatment in bootcamp did not meet the criteria A for PTSD, and the Veteran’s records are silent for a traumatic event that meets criteria A for PTSD. The examiner diagnosed the Veteran with major depressive disorder and mild cognitive impairment. The examiner opined that the Veteran’s major depressive disorder and mild cognitive impairment are not at least as likely as not related to an in-service injury, event, or disease. The rationale was the Veteran has depression due to chronic medical conditions and relationship issues in the past, as documented in records. The Board finds the examiner’s opinion to be probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board accepts the VA examiner’s opinion as the most probative evidence as whether it is less likely than not that the Veteran’s acquired psychiatric disorders are related to service. Therefore, 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, 1 Vet. App. at 55. 2. Entitlement to service connection for asthma, to include as due to exposure to ionizing radiation and/or asbestos The Veteran contends that his asthma is due to service, to include exposure to ionizing radiation and/or asbestos. 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 asthma 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). The September 2020 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of trouble breathing, he did not have a diagnosis of asthma. Further, despite consistent treatment by the VA and private pulmonologists for COPD since approximately 2003, treatment records do not contain a diagnosis of asthma. The issue of entitlement to COPD is addressed in the remand below. While the Veteran believes he has a current diagnosis of asthma, he is not competent to provide a diagnosis in this case as the issue is medically complex. Jandreau, 492 F.3d at 1377, 1377 n.4. Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, 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, 1 Vet. App. at 55. 3. Entitlement to service connection for sleep apnea, to include as due to exposure to ionizing radiation and/or asbestos The Veteran contends his sleep apnea is due to his service, to include exposure to ionizing radiation and/or asbestos. Alternatively, the Veteran contends his sleep apnea is due to inactive tuberculosis. However, the Veteran is not service connected for inactive tuberculosis. Therefore, service connection on a secondary basis cannot be established. Turning to the Veteran’s contentions regarding in-service exposures, the Veteran contended he was exposed to radiation as a child when he was living with his father stationed in Japan. However, he did not provide any other evidence of how he was exposed to radiation during his active service. The evidentiary record does not show that the Veteran is a radiation exposed veteran who participated in a radiation risk activity. Thus, the Veteran’s exposure to ionizing radiation is not presumed. Further, a review of military personnel and service treatment records does not reveal any activities that would have exposed him to radiation. This appeal was previously remanded to obtain relevant personnel records. All available military personnel and service treatment records were obtained. The record weighs against a finding of radiation exposure. Additionally, sleep apnea is not a radiogenic disease. See 38 C.F.R. §§ 3.309(d), 3.311(b)(2)(xxiii); Ramey, 9 Vet. App. 40. Regarding his exposure to asbestos, the Veteran claims he was exposed to asbestos in his sleeping quarters while traveling to and from Korea. The Board notes that the Veteran does not contend, and the record does not show, exposure to asbestos due to his duties as a fuel and electrical repairman. A review of military personnel and service treatment records does not reveal any evidence that his sleeping quarters were near asbestos or any other activities that would have exposed him to asbestos. All available military personnel and service treatment records were obtained. The record weighs against a finding of asbestos exposure. While the Veteran believes his sleep apnea is related to exposure to ionizing radiation and/or asbestos, the Board reiterates that the preponderance of the evidence weighs against findings that he was exposed to asbestos or ionizing radiating in service. Additionally, the September 2020 VA examiner opined against relation to service. The rationale was that asbestos exposure causes Asbestosis, Mesothelioma, lung cancer and asbestos related pleural disease, but the Veteran does not have any of those conditions and there is no evidence in medical literature or studies suggesting an association between asbestos exposure and sleep apnea. Further, the examiner was unable to identify any medical records supporting the claim of exposure to ionizing radiation during service. The Board finds the examiner’s opinion to be probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, the Board accepts the VA examiner’s opinion as the most probative evidence as whether it is less likely than not that the Veteran’s sleep apnea is related to service, to include exposure to ionizing radiation and asbestos. Therefore, 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, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to trichlorethylene (TCE), ionizing radiation and/or asbestos is remanded. 2. Entitlement to service connection for diabetes, type I, to include as due to exposure to trichlorethylene (TCE), ionizing radiation and/or asbestos is remanded. After remand, the Veteran was afforded VA examinations regarding COPD and diabetes in September 2020. Though the examiner provided opinions regarding whether the conditions are related to exposure to ionizing radiation and/or asbestos, the Veteran has also contended that COPD and diabetes are the result of his exposure to trichlorethylene (TCE). The Veteran’s military occupational specialty (MOS) was fuel and electrical repairman. He testified to cleaning mechanical parts in a vat of liquid at the March 2019 Board hearing. Additionally, March 2015 VA treatment records indicate the Veteran reported using TCE to clean carburetors in service. This was done in an enclosed space without a mask. Based on this treatment note, it appears his physician may believe diabetes and COPD may be related to the claimed TCE exposure. Accordingly, the Board finds an addendum opinion is required to address any relation the Veteran’s COPD and diabetes may have to his claimed exposure to TCE. 3. Entitlement to service connection for right foot disability is remanded. In the June 2019 remand directives, the Board directed the examiner to comment on March 1961 in-service treatment for a right foot injury. However, the September 2020 VA examiner incorrectly noted that service treatment records were silent for symptoms, treatment or diagnoses related to foot pain. The Board notes that medical opinions based on incomplete or inaccurate factual premise are not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Accordingly, the Board does not find substantial compliance with the remand directives and therefore another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). 4. Entitlement to service connection for left foot disability is remanded. Finally, because the findings and conclusions of the addendum opinion ordered for the remanded issue of entitlement to service connected for right foot disability could significantly impact a decision on the issue of entitlement to service connection for left foot disability, the issues are inextricably intertwined. A remand of the claim for service connection for left foot disability is required. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records 2. Thereafter, obtain an addendum opinion from an appropriate clinician regarding the Veteran’s diabetes. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner is asked to answer the following question: Is diabetes, type I, at least as likely as not (50 percent or greater probability) related to service, to include exposure to trichlorethylene (TCE)? For purposes of this opinion, the examiner should presume exposure to TCE in service. 3. After completing directive #1, obtain an addendum opinion from an appropriate clinician regarding the Veteran’s COPD. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner is asked to answer the following question: (a.) Is COPD at least as likely as not (50 percent or greater probability) related to service, to include exposure to trichlorethylene (TCE)? For purposes of this opinion, the examiner should presume exposure to TCE in service. 4. After completing directive #1, obtain an addendum opinion from an appropriate clinician regarding the Veteran’s right foot condition. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner is asked to answer the following question: (a.) Is the Veteran’s right foot disability at least as likely as not (50 percent or greater probability) related to service? The examiner is asked to consider and comment on the Veteran’s March 1961 treatment for a right foot injury in service. The examiner must provide a complete explanation for all opinions. The need for additional physical examination of the Veteran is left to the discretion of the examiner. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, 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.