Citation Nr: 21008911 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-00 211 DATE: February 18, 2021 ORDER Entitlement to service connection for hypertension, related to in-service exposure to herbicides, is granted. Entitlement to service connection for a psychiatric disorder, diagnosed as an unspecified depressive disorder, is granted. Entitlement to service connection for a left shoulder disability, diagnosed as degenerative joint disease and rotator cuff tendonitis, is granted. Entitlement to service connection for a right shoulder disability, diagnosed as degenerative joint disease and rotator cuff tendonitis, is granted. REMANDED Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The competent and credible evidence of record indicates that the Veteran's hypertension is related to his in-service exposure to herbicides. 2. Resolving all doubt in the Veteran's favor, the Veteran's unspecified depressive disorder is related to his experiences during his active duty service. 3. The Veteran’s left shoulder disability more likely than not was caused by service or his service-connected lumbar spine disability. 4. The Veteran’s right shoulder disability more likely than not was caused by service or his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for an unspecified depressive disorder have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection on a direct and secondary basis for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for entitlement to service connection on a direct and secondary basis for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970, including service in the Republic of Vietnam from July 1969 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In March 2016 and March 2018, the Board remanded the Veteran’s claims to obtain new VA medical examinations and opinions. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing 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) 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). Service connection may be granted for any disease initially diagnosed after service 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 may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512–14 (1998). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hypertension The Veteran contends that he developed hypertension as a result of his in-service herbicide exposure. The Veteran was afforded a VA examination in June 2016 and a nexus opinion was obtained in August 2016, however the examiner did not fully address service connection on a direct basis, to include as a result of exposure to Agent Orange. In March 2018, the Board noted that hypertension is not listed as a disease associated with herbicide agent exposure. See 38 C.F.R. § 3.309(e). However, the National Academy of Sciences Institute of Medicine has concluded that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). The Board found that a remand was necessary to obtain an addendum opinion. The record clearly indicates that the Veteran has been diagnosed with hypertension during the appeal period, according to June 2016 and January 2020 VA examinations. Furthermore, VA has acknowledged that the Veteran is presumed to have been exposed to herbicides while serving in the Republic of Vietnam. A current disability and an in-service injury have therefore been demonstrated. While hypertension is not listed among the herbicide related diseases enumerated in 38 C.F.R. § 3.309, this does not preclude the Veteran from establishing service connection for hypertension with proof of direct causation. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). Pursuant to the March 2018 Board remand, the Veteran was afforded another VA examination in January 2020. The January 2020 VA examiner opined that the Veteran’s exposure to herbicides significantly increased the Veteran’s risk to develop hypertension and concluded that the Veteran’s disability was at least as likely as not incurred in or caused by the claimed in-service injury, thereby directly linking this Veteran’s hypertension to his exposure to Agent Orange in service. The Board has reviewed the claim file and notes that the record does not contain any evidence suggesting that the Veteran's hypertension is unrelated to his active duty service, to include his presumed in-service herbicide exposure. Accordingly, entitlement to service connection for hypertension is warranted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a psychiatric disorder The Veteran and his representative contend that the Veteran is entitled to service connection for a psychiatric disorder due to his experiences during his active duty service. The first element for service connection is satisfied in that the Veteran was diagnosed with an unspecified depressive disorder, as noted in VA examinations from June 2014, June 2016, and January 2020. Concerning the second element to establish service connection, the Board observes that the Veteran's service treatment records (STRs) are devoid of a diagnosis of an unspecified depressive disorder or other psychiatric disabilities. However, the Veteran's statements assert that he experienced traumatic events, including losing friends during his service. During the June 2014 VA examination, the Veteran reported that, while serving in Vietnam, he heard several explosions and had to run to the bunker for safety causing nervousness. The Veteran also stated that he was informed that some of his companions were killed in service and that he had to deal with discrimination in service. During the June 2016 VA examination, the Veteran reported experiencing many mortar attacks and noted that a good friend was killed in an attack. The Veteran noted that, while he was taking gasoline from a tank, there was another attack. Based on this evidence, and giving the Veteran the benefit of the doubt, the Board concludes that the second element has been demonstrated. The evidence relating to the final nexus element for service connection is mixed. The Veteran was afforded two VA examinations with nexus opinions in June 2016 and January 2020. The June 2016 VA examiner concluded that the Veteran’s psychiatric disorder is less likely than not due to the Veteran’s active duty service. The examiner added that Veteran’s service treatment records are silent for behavioral health referrals and the Veteran began psychiatric treatment about 30 years after service. The January 2020 VA examiner concluded that the Veteran’s psychiatric disorder is less likely than not due to the Veteran’s active duty service. The examiner added that the Veteran began psychiatric treatment many years after service. The examiner also noted that there is no temporal relationship between the death of a close friend and a neuropsychiatric disorder. The VA examinations conclude with negative nexus opinions while providing no other cause for the Veteran’s diagnosed an unspecified depressive disorder. The Board finds that due to the lack of an adequate explanation explaining a cause for the Veteran’s diagnosed an unspecified depressive disorder, these VA nexus opinions have limited to no probative value. The Veteran submitted a private nexus opinion from a physician dated April 2013. The private physician explained that the Veteran’s psychiatric disorder with symptoms of sadness and depressed mood began to manifest during his active duty service with symptoms and at least as likely as not originated due to his active duty service. There are medical opinions of record which weigh both for and against the Veteran's claims. When evaluating medical opinions, it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Generally under VA law, the only requirement for competency to provide medical evidence is that the person be a licensed health care professional, and a nurse's opinion has been accepted by the Court as competent medical evidence. See YT v. Brown, 9 Vet. App. 195, 201 (1996); Goss v. Brown, 9 Vet. App. 109 (1996); see also Pond v. West, 12 Vet. App. 341 (1999). The Board emphasizes that there is no inherent requirement that only certain types of medical personnel perform examinations. See 38 C.F.R. §§ 3.159, 3.326. Instead, the Board is required to review the particular examination’s findings in order to determine whether they constitute sufficient and competent medical evidence as to the claim at issue. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995). The private opinion is based on a review of the record, is well-reasoned, and discusses the Veteran's contentions and lay statements of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). Additionally, this opinion was rendered by a general practitioner physician, but not a psychologist or psychiatrist. While this fact does not automatically reduce the opinion's probative value, it can be considered when weighing it against another medical opinion from a specialist. Ultimately, the Board finds this opinion credible and assigns it high probative weight in favor of the claim. Consequently, the Board finds that the Veteran is entitled to prevail with respect to his claim, and that a grant of service connection for an unspecified depressive disorder is warranted. 3. Entitlement to service connection for a left shoulder disability 4. Entitlement to service connection for a right shoulder disability The Veteran and his representative contend that the Veteran is entitled to service connection for bilateral shoulder disabilities as secondary to his service-connected lumbar spine disability. The first element for secondary service connection is satisfied in that the Veteran was diagnosed with degenerative joint disease and rotator cuff tendonitis of the bilateral shoulders, as noted in VA examinations from September 2016 and January 2020. The evidence relating to the final nexus element for secondary service connection is mixed. The Veteran was afforded two VA examinations in September 2016 and January 2020. The September 2016 VA examiner concluded that the Veteran’s bilateral shoulder disabilities are less likely than not due to the Veteran’s service-connected lumbar spine disability. The examiner added that Veteran’s shoulder and lumbar spine are different pathophysiology and are at different anatomic sites and are not related to each other functionally. The January 2020 VA examiner concluded that the Veteran’s bilateral shoulder disabilities are less likely than not due the Veteran’s active duty service or due to the Veteran’s service-connected lumbar spine disability. Regarding the direct nexus opinion, the examiner added that the Veteran’s bilateral shoulder disability is not related to service because they were diagnosed many years after active duty service. Regarding the secondary nexus opinion, the examiner noted that “shoulder conditions are not related pathophysiologically or anatomically” to a lumbar spine disability. The examiner also stated that there is no medical literature supporting a link that a lumbar spine disability could aggravate a bilateral shoulder disability. The VA examinations conclude with negative nexus opinions while providing no other cause for the Veteran’s diagnosed bilateral shoulder disabilities. The Board finds that due to the lack of an adequate explanation explaining a cause for the Veteran’s diagnosed bilateral shoulder disabilities, these VA nexus opinions have limited probative value. The Veteran submitted a private nexus opinion from a physician dated April 2013. The private physician explained that the Veteran’s service-connected lumbar spine disability cause mechanical stress at a person’s shoulders, knees and ankles, and with time they can cause degenerative changes. The examiner added that the Veteran’s disability results in bad posture, loss of correct alignment and loss of curvature of cervical, thoracic and lumbar lordosis. These specific observations led the physician to conclude that the Veteran’s bilateral shoulder disabilities were at least as likely as not secondary to his service-connected lumbar spine disability. Finally, the examiner stated that the Veteran’s activities in service included training and lifting that also contributed to his degenerative joint disease in the shoulders. The private medical opinion is probative because it is based on a review of the record and contain a clear conclusion with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). The evidence contained in this opinion further support the existence of a nexus between the Veteran’s bilateral shoulder disabilities and the Veteran’s service-connected lumbar spine disability. The opinion further opines a direct relationship between the Veteran’s service and his bilateral shoulder disability and given the diagnosis of a chronic disorder, the Veteran’s statements of continuity of symptoms alternatively link this disorder to service. Therefore, the Board finds that the final element for direct and secondary service connection has been met, and that service connection for bilateral shoulder degenerative joint disease and rotator cuff tendonitis is also warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left elbow disability is remanded. 2. Entitlement to service connection for a right elbow disability is remanded. The Veteran and his representative contend that the Veteran is entitled to service connection for bilateral elbow disabilities as secondary to his service-connected musculoskeletal disabilities. The Board notes that the Veteran has been afforded two VA examinations in September 2016 and January 2020. The September 2016 VA examiner diagnosed the Veteran with bilateral lateral epicondylitis, and the January 2020 VA examiner diagnosed the Veteran with bilateral elbow myositis. Therefore, the only remaining question is whether there is evidence of a nexus between the Veteran’s bilateral elbow disabilities and a service-connected disability. The September 2016 VA examiner concluded that the Veteran’s bilateral elbow disabilities are unrelated to the Veteran’s service-connected lumbar spine. The examiner added that the Veteran’s elbow disabilities are related to repetitive local trauma to the forearm extensors usually secondary to repetitive wrist extension activities. The January 2020 VA examiner opined that the Veteran’s bilateral elbow disabilities are less likely than not related to the Veteran’s active duty service, as the Veteran’s service treatment records are silent for a diagnosis or symptoms of bilateral elbow disabilities and there is no evidence of any manifestation or diagnosis of bilateral elbow disabilities within a year of active duty service. Additionally, there is an addendum opinion in the record dated June 2020. The addendum opinion concluded that there is no objective evidence in the Veteran’s medical records that his lumbar spine disability affected or aggravated his bilateral elbow disabilities. However, as the Board has newly service-connected bilateral musculoskeletal shoulder disabilities that may have caused or aggravated the Veteran’s bilateral elbow disabilities, the Board finds that another VA examination and addendum opinion are required to adequately assess the etiology of the Veteran’s bilateral elbow disabilities. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. The Veteran’s claim of entitlement to TDIU is inextricably intertwined with the claims remanded for further development. Accordingly, they must be considered together, and thus a decision by the Board on the Veteran’s claim of entitlement to TDIU would at this point be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: The Veteran must be afforded a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's bilateral elbow disabilities. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, the Veteran’s lay statements, and medical records, should be made available and be reviewed by the examiner. Following a complete review of the record, the examiner is asked to: a. Explain the nature and etiological of the Veteran’s diagnosed bilateral elbow disabilities. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral elbow disabilities was due to or aggravated by any of the Veteran’s service-connected musculoskeletal disabilities, to include the service-connected bilateral shoulder disabilities. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.