Citation Nr: 21008453 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 19-27 035 DATE: February 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include panic disorder, agoraphobia, and unspecified depressive disorder, is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for high blood pressure is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. FINDING OF FACT The Veteran has an acquired psychiatric disability that was incurred in active service. CONCLUSION OF LAW The criteria for entitlement to service connection an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to June 2000. He testified before the undersigned Acting Veterans Law Judge at an October 2020 Board hearing (with respect only to the acquired psychiatric disorder, GERD and TDIU claims). Service Connection – Acquired Psychiatric Disorder Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection, three elements must be established: (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, which is often referenced as the “nexus” element. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Analysis Upon review, the Board finds that entitlement to service connection is warranted for an acquired psychiatric disorder. Initially, with respect to the scope of the claim on appeal, the Veteran filed a claim in September 2016 for entitlement to service connection and listed disabilities of anxiety condition, agoraphobia, alcohol abuse, depression and posttraumatic stress disorder (PTSD). The November 2017 rating decision on appeal separately denied entitlement to service connection for all of the claimed disorders. An August 2018 notice of disagreement (NOD), via VA Form 21-0958, was filed as to the November 2017 rating decision and all issues decided in that decision. The agency of original jurisdiction (AOJ) issued an August 2019 SOC that was noted as being in response to the August 2018 NOD. The SOC, however, only specifically listed as an issue entitlement to service connection for alcohol abuse. At the October 2020 Board hearing, the Veteran’s representative stated that “[w]e would like, pursuant to Clemons, to recharacterize [the alcohol abuse claim] as an acquired psychiatric disorder” and also stated that “I respectfully request that the Board…grant service connection for [the Veteran’s] psychiatric disorder.” See also January 2021 Veteran Statement (“Per my conversation with the Board judge during my [October 2020] Board hearing, I am seeking service connection for my acquired psychiatric disorder”). As will be addressed further below, various evidence showed an acquired psychiatric disorder. In light of the Veteran’s and representative’s explicit contentions and the evidence of record, and consistent with Clemons, the Board will recharacterize the issue on appeal broadly as entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (“Reasonably, the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his mental condition, whatever that is, causes him”). With respect to the first element of direct service connection, various evidence showed an acquired psychiatric disorder. See November 2017 Mental Disorders DBQ (noting a diagnosis of unspecified anxiety disorder); January 2018 VA Primary Care Treatment Record (noting an assessment of “Anxiety/Depression”); July 2020 Dr. B.R. Letter (noting diagnoses that included “Bipolar Disorder includes mania and depression episodes” and generalized anxiety disorder); January 2021 Psychologist J.P. Opinion (noting that the Veteran met the criteria for panic disorder, agoraphobia and unspecified depressive disorder). As such, the Board finds that the first element of direct service connection has been met. With respect to the second element of direct service connection, the Veteran has primarily contended that, essentially, he experienced the onset of psychiatric symptoms during his active service and that such have continued since that time. In this regard, the Veteran provided extensive testimony under oath before the undersigned at the October 2020 Board hearing. The Veteran discussed being stationed in Colorado in 1995 and described a “[v]ery abusive” environment where he “went through a lot of abuse.” See October 2020 Board Hearing Transcript, Pages 11-13. He stated that he “was scared every day, because I understood the gravity of getting a less [than] honorable discharge, and I was a nervous wreck.” He also reported, essentially, that he preliminarily sought medical treatment, but was told that if he received treatment, he would be unable to perform his job in the Air Force and would be discharged. See October 2020 Board Hearing Transcript, Pages 20-22. The Veteran further described being transferred to Alaska, that such significantly exacerbated (due to “the isolation, the darkness, no one talk to, the cold”) his emotional and mental situation and that he also sought treatment there, with a similar result as previously discussed. See October 2020 Board Hearing Transcript, Pages 28-29. The Veteran’s representative summarized the Veteran’s contentions, stating that “[y]ou went through lots of mental anguish for being targeted, and abused verbally and otherwise, while you were…in Colorado,” that “you started drinking in Colorado to self-medicate. Shortly thereafter, you transferred to Alaska. Things got worse for you. Continued to self-medicate. Mental health symptoms continued to persist” and that “all those symptoms that began in service have been continuous, including the self-medication, through the present day.” The Board notes that the Veteran provided similar contentions in a September 2016 statement, at the November 2017 VA examination and in an initial March 2018 VA psychiatry consult. The Veteran also submitted four lay buddy statements from fellow veterans that he served with that, essentially, corroborated his contentions outlined above, to include as to his in-service symptoms, that he worked in a hostile environment and that he avoided treatment due to being unable to perform his job and/or being discharged. The Board notes that three of these individuals rated or signed the Veteran’s performance reports that were obtained as part of his military personnel records. S.B. stated in an April 2017 statement that “I was in position to closely observe [the Veteran’s behavior] both on duty and off…his mood and behavior off duty was erratic and cause for concern” and that “I have no doubt the likelihood of a security clearance suspension and removal from operations were contributing factors in [the Veteran’s] decision to not seek treatment.” M.R. stated in an April 2017 statement that the Veteran’s “mood and off duty behavior caused us a great deal of concern” and that “I spoke to [the Veteran] many times…that he should get help…The climate during that time would have caused our units leadership to pull his security clearance and remove him from his position as a space operator. This would have ended his career with the Air Force.” C.H. stated in an August 2017 statement that he had known the Veteran since 1990, that he has “been witness to the progressing nature of his depression and anxiety” and that in 1997 “I started to see an individual that was suffering from depression and anxiety.” He further stated that he and the Veteran “talked about him getting help, but we all knew that if you ever went to mental health as a Space Operator, you would be put on DNIF status (duty not to include flying).” A.A. stated in a May 2017 statement that a “Hostile Work environment was continuous throughout the [the Veteran’s] 10 year” active service and that “[o]ne’s coming forward ‘with issues’ would only result in your losing your position, your career field participation would be in [j]eopardy, and termination from military Service was a genuine possibility.” In review, the Board finds the Veteran’s lay statements as to his in-service experiences and symptoms to be credible and finds the corroborating buddy statements outlined above to be additional significant probative evidence as to the Veteran’s in-service experience and symptoms. Overall, the Board finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran’s current acquired psychiatric disorder and his active service, the Veteran was afforded a VA examination in November 2017 and a Mental Disorders DBQ was completed by psychologist M.S. A direct service connection opinion was requested from the examiner and the examiner stated, as relevant, that: This [V]eteran’s response style was evaluated with a structured inventory of malingered symptomatology. The [V]eteran’s total score was significantly elevated above the recommended cutoff score for the identification of suspected malingering as identified by recent research….When there is significant exaggeration or feigning of symptoms, it is impossible to determine what symptoms a person is truly experiencing and what symptoms they are feigning or exaggerating without mere speculation. These results do not mean the [V]eteran does not have a mental disorder diagnosis as documented prior to this examination. These results indicate that it is currently impossible to determine an accurate diagnosis…A diagnosis of unspecified anxiety disorder is offered based on a review of recent treatment records. It would be speculative, however, to link this disorder to his prior service from ‘90 to ‘00, given his chronic alcohol abuse/dependence, and evidence of exaggeration/feigning of symptoms as noted. Also of record is a July 2020 letter from private provider Dr. B.R., who was noted to be Board Certified in Psychiatry. Dr. B.R. stated that “I personally evaluated [the Veteran in October 2019] and have followed up with him at least quarterly since then.” Dr. B.R. also noted that he reviewed the various buddy statements that were discussed above and noted that the Veteran had various diagnoses, to include “Bipolar Disorder includes mania and depression episodes” and generalized anxiety disorder. The letter stated that the Veteran “has no other known risk factors that may have precipitated his current condition” and that “[a]fter review of the pertinent records, it is my professional opinion that [the Veteran’s] condition is highly likely a direct result of his service.” Dr. B.R. further noted that “[i]n my personal experience and in the medical literature it is known that exposure to emotional trauma, causes intense psychological distress; persistent avoidance of associated stimuli; marked alterations in cognitions and mood; and marked alterations in arousal and reactivity for more than 1 month” and that “[i]t is not attributable to the psychological effects of a substance abuse or another medical condition.” Additionally of record is a January 2021 private opinion from psychologist J.P. The opinion stated that the Veteran’s claims file was reviewed. The opinion extensively outlined various relevant evidence and stated that the Veteran “has consistently described the significant events and treatment he endured during service, resulting in psychological symptoms which were not present prior to service” and that the Veteran’s “symptoms continue to exist to the present day.” The opinion noted that the Veteran meets the criteria for panic disorder, agoraphobia and unspecified depressive disorder. J.P. provided an opinion that: Given the consistent records and credible statements showing a documented onset of mental health symptoms during [the Veteran’s] service, given the statements and medical records indicating the severity and chronicity of his psychological symptoms until the present, and given the lack of any indication that [the Veteran] had a mental health disorder prior to joining the military…the evidence in the record indicates that it is at least as likely as not that [the Veteran’s] Panic Disorder, Agoraphobia, and Unspecified Depressive Disorder are a direct result of his service. Upon review, the Board finds that the most probative evidence of record indicated that the Veteran’s current acquired psychiatric disorder has a nexus to his active service. As outlined, while a direct service connection opinion was requested from the November 2017 VA examiner, the examiner concluded that “[i]t would be speculative, however, to link this disorder to his prior service.” The Board affords this inconclusive opinion some probative value. See generally Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (“An examiner’s conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion”). The Board, however, affords more probative value to the positive private nexus opinions from Dr. B.R. and psychologist J.P. As outlined, these opinions indicated, essentially, that the Veteran’s current acquired psychiatric disability was directly related to his active service. Dr. B.R.’s opinion was based on personal evaluation of the Veteran and review of the various buddy statements previously discussed. Psychologist J.P.’s opinion was based on review of the Veteran’s claims file. Both opinions contained rationales in support of the conclusions provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion…that contributes probative value to a medical opinion”). In addition, the Board notes that there is no competent opinion of record clearly contrary to the positive nexus opinions provided by Dr. B.R. and psychologist J.P. (as noted, the November 2017 VA examiner provided an inconclusive opinion, which accordingly was not a negative opinion as to the issue of nexus and was therefore not clearly contrary to the positive nexus opinions). Overall, the Board finds the positive private nexus opinions from Dr. B.R. and psychologist J.P. to be the most probative evidence of record as to the issue of nexus and that such opinions are sufficient evidence to show that the Veteran’s current acquired psychiatric disorder has a nexus to his active service. As such, all three elements of direct service connection have been met. In sum, the Board finds that the Veteran has an acquired psychiatric disability that was incurred in active service.  As such, the Board concludes that the criteria for entitlement to service connection an acquired psychiatric disorder have been met and, to this extent, the Veteran’s claim is therefore granted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Increased Rating – GERD Upon review, the Board finds that remand is required to afford the Veteran a new VA examination and to obtain outstanding VA treatment records. The Veteran was last afforded a VA examination for his service-connected disability in February 2019 and an Esophageal Conditions Disability Benefits Questionnaire (DBQ) was completed. The DBQ noted signs and symptoms due to the Veteran’s GERD of “[i]nfrequent episodes of epigastric distress” and also noted the frequency of symptom recurrence per year as “4 or more.” At the October 2020 Board hearing, the Veteran testified that during GERD exacerbations, he has difficulty swallowing, burning and pain in his chest and shoulder and he feels like he is going to throw up. See October 2020 Board Hearing Transcript, Pages 43-45. He also reported that he experiences GERD exacerbations “three or four times a week. So, anywhere between 12 and 16 times a month.” See October 2020 Board Hearing Transcript, Page 46. The frequency of GERD exacerbations reported at the October 2020 Board hearing suggests an increase in severity of the Veteran’s disability since the prior February 2019 VA examination. As such, the Board finds that remand is required to afford the Veteran a new VA examination to determine the current severity of such disability. Remand is also warranted to obtain outstanding VA treatment records. In this regard, the most recent VA treatment records of record are from April 2018. The February 2019 DBQ included a copy of a February 2019 VA treatment record that discussed GERD. The DBQ therefore indicated that there are outstanding VA treatment records relevant to this claim. As such, remand is also required to obtain outstanding VA treatment records from April 2018. 2. Entitlement to a TDIU The Veteran currently does not meet the schedular TDIU criteria and the Board may not assign an extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16; Wages v. McDonald, 27 Vet. App. 233 (2015). As outlined above, the Board has granted entitlement to service connection for an acquired psychiatric disability and has also remanded the GERD increased rating claim. The Veteran’s eligibility for a schedular TDIU may be impacted by the AOJ’s assignment in the first instance of the effective date and rating for the acquired psychiatric disability and the AOJ’s adjudication of the GERD increased rating claim. The Board also notes that the outstanding VA treatment records to be obtained as part of the remanded GERD claim may include additional evidence relevant to the TDIU claim. As such, the Board finds that the TDIU claim is inextricably intertwined at this time with the GERD increased rating claim being remanded and thus the TDIU claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Further, remand is also warranted to attempt to obtain outstanding Social Security Administration (SSA) disability records. In this regard, evidence of record referenced SSA disability benefits, but no attempt to obtain such records has been made. See August 2018 Veteran Statement (referencing SSI [Supplemental Security Income] benefits); October 2020 Dr. B.R. Private Medical Record (referencing an SSA hearing); January 2021 Vocational Assessment (“Contained in [the Veteran’s] records from the [SSA] is…”). As such, remand is also required to attempt to obtain any outstanding SSA disability records that may be available. 3. Service Connection – High Blood Pressure 4. Service Connection – IBS 5. Service Connection – Sleep Apnea As discussed above, an August 2018 NOD was filed as to a November 2017 rating decision and all issues decided in that decision. The November 2017 rating decision denied entitlement to service connection for high blood pressure, IBS and sleep apnea (in addition to various acquired psychiatric disorders, as was discussed above). A SOC has not been issued in regard to the high blood pressure, IBS or sleep apnea claims. When a NOD has been filed and a SOC has not been issued, the appropriate Board action is to remand the issue for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). As such, remand is required for these issues for the issuance of a SOC. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from April 2018. 2. Attempt to obtain any SSA disability records available. 3. Afford the Veteran an appropriate VA examination to determine the current severity of his GERD disability. The examiner is asked to address and describe any GERD flare-ups experienced by the Veteran. (Continued on the next page)   4. Issue a SOC regarding the issues of entitlement to service connection for high blood pressure, IBS and sleep apnea. Marissa Caylor Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.