Citation Nr: 21011442 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-04 437 DATE: March 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for gastritis, claimed as secondary to medication used to treat service-connected disabilities, is denied. Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as depressive disorder, is granted. REMANDED Entitlement to service connection for an acquired vision defect, claimed as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for polyps, to include as secondary to herbicide exposure, is remanded. Entitlement to an effective date earlier than July 18, 2014, for the grant of a total disability rating based on individual employability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss was incurred in active service. 2. The Veteran’s gastritis was not caused or aggravated by medication used to treat service-connected disabilities and was not otherwise incurred or aggravated by service. 3. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s acquired psychiatric disorder, currently diagnosed as depressive disorder, was incurred in active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for gastritis, claimed as secondary to medication used to treat service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as depressive disorder, have been 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 April 1968 to April 1970. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2010, May 2010, March 2011, and December 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in June 2017 and November 2018 Board decisions for further development by the RO. The case has been returned to the Board for further appellate action. 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 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). 1. Entitlement to service connection for bilateral hearing loss The Board finds that the Veteran has bilateral hearing loss that is related to in-service acoustic trauma, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). The record in this case is clear as to whether the Veteran has bilateral hearing loss. The August 2011 and October 2019 VA examinations showed hearing thresholds of 40 decibels or greater bilaterally in multiple frequencies from 500 to 4000 Hertz (Hz). The Board finds that the Veteran has a current diagnosis of hearing loss for VA purposes. 38 C.F.R. § 3.385. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran’s STRs do not contain complaints, diagnosis or findings of hearing loss. However, this is not dispositive. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) (holding 38C.F.R. §3.385 does not preclude service connection for a current hearing loss disability when hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a veteran’s in-service noise exposure and the current disability). The Veteran’s Form DD-214 indicates that his military occupational specialty (MOS) was light weapons infantryman and that he was a rifle marksman. It also shows that he was awarded the National Defense Service Medal, the Vietnam Campaign Medial, and the Vietnam Service Medal. The Veteran’s military personnel record also contains award of the Bronze Star Medal for achievement in ground operations against hostile forces. The Veteran was also awarded the Army Commendation Medal for leading an assault on enemy positions and braving a hail of enemy rounds. Thus, the Board finds that his presence during a gunfire attack qualifies as traumatic noise exposure. Further, the Board notes the RO has noted the he may have combat trauma due to his MOS. See May 2010 rating decision. Based on the first two elements of service connection being satisfied, VA thrice throughout the pendency of this claim sought a competent medical opinion regarding whether there is a causal relationship between the current disability and the in-service disease or injury. The Board finds that none of the opinions of record adequately address the Veteran’s evidence of record, to include his MOS or combat experiences. The December 2009, August 2011 and October 2019 VA opinions do not address the Veteran’s MOS or combat experiences and resulting acoustic trauma and improperly rely on the finding of normal hearing upon separation. 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 claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In conclusion, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss had its onset during active service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for gastritis, claimed as secondary to medication used to treat service-connected disabilities The Board finds that the Veteran’s gastritis was not caused or aggravated by medications for his service-connected disabilities, or otherwise related to service, thus warranting denial of an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), 3.310. The record in this case is clear as to whether the Veteran has gastritis. See March 2011 and October 2019 VA examinations. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran’s STRs do not contain complaints, diagnosis or findings of gastritis. A February 1970 treatment note indicates the Veteran complained of right-side abdomen pain; bowel sounds were noted as active and it was diagnosed as musculoskeletal pain. The March 1970 separation examination, report of medical history, indicates that the Veteran reported some intestinal trouble with no further detail. The March 1970 separation examination, report of medical examination, indicated that the Veteran had a normal abdomen and viscera; no gastrointestinal signs or symptoms were noted. In a subsequent April 1970 separation examination, report of medical history, he reported he did not have frequent indigestion or stomach, liver or intestinal trouble. A June 1970 VA examination noted no palpable organs or masses for the digestive system examination. Furthermore, the Veteran contended that his gastritis is secondary to medications for his service-connected disabilities. See October 2010 informal claim letter. The Veteran is service connected for coronary artery disease, diabetes mellitus, and hypertension, among other disabilities. See February 2021 rating decision code sheet. The Veteran underwent a VA examination in March 2011. He reported that the onset of gastritis was four to five years prior. The examiner noted that a 2009 endoscopy was positive for mild gastritis and helicobacter pylori. The examiner opined that gastritis was less likely than not caused by or a result of medications because the Veteran denied gastric symptoms associated with medications, but rather with certain foods. He denied chronic used of nonsteroidal anti-inflammatory drug (NSAIDs) as of many years; he only sporadically used Advil. Moreover, the record evidence of helicobacter pylori is highly associated with the development of ulcers and gastric inflammation. The Board remanded the claim in June 2017 after finding this opinion did not address the whether the Veteran’s disability is related to medication used to treat his service-connected disabilities. The Veteran underwent a second VA examination in October 2019. The examiner opined that the gastritis was less likely than not caused by nor aggravated by medications for his service-connected conditions. When the Veteran began complaining of signs and symptoms of gastritis around 2008, the medications taken at the time were those for his service-connected hypertension and these are not related to gastritis. Moreover, there is evidence that his gastritis predates his service-connected diabetes mellitus and coronary artery disease. This is supported by the record. See October 2009 VA examination (indicating date of diabetes onset was August 2009); August 2012 VA examination (indicating date of onset of coronary artery disease was March 2012). A subsequent VA medical opinion from December 2020 states that the gastritis was less likely than not incurred in or caused by service. The STRs show no signs, symptoms, complaints or diagnoses of gastritis during service or within a year of separation. The onset of the condition was many years after service; it was diagnosed in 2008. Furthermore, gastritis pre-dated his service-connected diabetes, hypertension and heart conditions. Moreover, there is no evidence of aggravation of this condition as the evidence of record indicates that they are well-controlled. Additionally, a December 2020 VA medical opinion regarding polyps indicates that the pain on the right side of his abdomen experienced in service was a musculoskeletal pain rather than a gastrointestinal one. The Board acknowledges the lay statements of record and the assertion that the Veteran’s gastritis is related to his service-connected disabilities, to include medications prescribed for those. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. He does not have the requisite specialized knowledge, 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). Thus, although the Board has carefully considered the lay contentions of record suggesting that his gastritis was caused or aggravated by his service-connected disabilities or otherwise began during service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinion. Consequently, the Board affords more probative weight to the competent medical evidence of the October 2019 and December 2020 VA examination report and opinions. Here, the Board finds that these VA medical opinions are based on an accurate medical and lay history as well as medical documentation provided in the claims file, to include the Veteran’s STRs. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). Additionally, the Board notes that neither the Veteran nor his representative have presented or identified any contrary medical opinion or treatment that supports his claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for gastritis is not warranted. 3. Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as depressive disorder The Board finds that the Veteran has an acquired psychiatric disorder, currently diagnosed as unspecified depressive disorder, that is related to in-service combat trauma, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). The record in this case is clear as to whether the Veteran has an acquired psychiatric disorder, currently diagnosed as unspecified depressive disorder. See May 2013 and November 2019 VA examinations. The post-service VA medical treatment records reflecting a continued diagnosis of depressive disorder. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran’s STRs do not show complaints of psychiatric symptoms. However, this is not dispositive. In a May 2010 statement in support of claim, the Veteran indicated that two close friends were killed in an ambush while on assignment in Ben Hoa, Vietnam. Additionally, the Veteran witnessed a bomb explosion close to his position that injured two friends in Than-Son-Nhut, Vietnam. Furthermore, as indicated above, the Veteran is in receipt of the National Defense Service Medal, the Vietnam Campaign Medial, and the Vietnam Service Medal, the Bronze Star Medal and the Army Commendation Medal. Moreover, the Board notes the RO has noted the he may have combat trauma due to his MOS. See May 2010 rating decision. Multiple post-service VA medical treatment records indicate that the Veteran has reported experiencing psychiatric symptoms since separation from service, to include flashbacks, depression, and nightmares. The Veteran reported seeking group therapy in the 1980s. VA treatment records note more recent symptoms to include war flashbacks, war nightmares, intrusive war memories, troubled sleep, irritability, and suicidal ideation. The Board finds that the Veteran has provided credible and competent statements regarding his psychiatric symptoms both during and following service. Based on the first two elements of service connection being satisfied, VA has sought five times throughout the pendency of this claim a competent medical opinion regarding whether there is a causal relationship between the current disability and the in-service disease or injury. The Board finds that none of the opinions of record adequately address the Veteran’s lay statements or the medical evidence of record. In light of this development and the lack of an adequate opinion, the Board finds that a further remand is not in the interest of judicial efficiency. Instead, the Board adjudicates the appeal on the evidence of record with careful consideration of the evidence of record in light of this inability to obtain an adequate opinion in the pursuit of meetings VA’s duty to assist. 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 claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In conclusion, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disorder, currently diagnosed as unspecified depressive disorder, had its onset during active service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection for an acquired psychiatric disorder, currently diagnosed as unspecified depressive disorder, is warranted. 38 U.S.C. § 5107 (b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a vision defect, claimed as secondary to diabetes mellitus, type II, is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The November 2019 VA examination does not include an opinion on whether the Veteran’s vision defect was aggravated by his service-connected diabetes mellitus. Thus, the case must be returned for an addendum opinion. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (holding that a medical opinion that only addresses whether a service-connected disability caused a nonservice-connected disability does not address whether the service-connected disability aggravated a nonservice-connected disability). 2. Entitlement to service connection for polyps, to include as secondary to herbicide exposure is remanded. The December 2020 VA examiner improperly relied on the fact that polyps are not on the presumptive list of diseases associated with herbicide exposure in rendering his negative opinion. The examiner did not address the Veteran’s personal circumstances and risk factors, as directed by the November 2018 Board remand directives. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). Thus, the case must be returned for an addendum opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). 3. Entitlement to an effective date earlier than July 18, 2014, for the grant of a total disability rating based on individual employability (TDIU) is remanded. As the outcome of the Veteran’s claims for service connection may impact his claim of entitlement to TDIU, the latter claim is inextricably intertwined with the former claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Therefore, adjudication of the TDIU claim must be deferred until the RO has adjudicated the Veteran’s remanded service connection claims. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, obtain an addendum opinion regarding the claimed eye disability from the examiner who performed the November 2019 VA examination or an appropriate medical professional if the examiner is unavailable. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether it is as least as likely as not (a 50 percent probability or greater) that the Veteran’s service-connected diabetes mellitus caused or aggravated (worsened beyond the normal progression of the disability) the Veteran’s vision disorder and provide a complete rationale for the opinion. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Following completion of directive # 1, obtain an addendum opinion regarding the claimed polyp disability from the VA examiner who performed the November 2019 examination or an appropriate medical professional if the examiner is unavailable. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether it is as least as likely as not (a 50 percent probability or greater) that the currently diagnosed polyps are etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service, to include as due to the Veteran’s exposure to herbicide agents. In providing the opinion, the examiner must not rely solely on the fact that the Veteran’s polyps are not on the presumptive list of diseases associated with herbicide exposure. If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.