Citation Nr: 21012466 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-37 971 DATE: March 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress syndrome (PTSD) and to include as due to exposure to herbicide agents, is denied. REMANDED Entitlement to service connection for a heart disorder, claimed as ischemic heart disease and to include as due to exposure to herbicide agents, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT At no time during the pendency of the appeal does the record contain a current disability of PTSD, and the Veteran’s acquired psychiatric disorder has not been shown to be related to his military service, to include his presumed herbicide exposure. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in August 2011, July 2012, and July 2014 by a Department of Veterans Affairs (VA) Regional Office. In June 2016 and October 2019, the Board remanded the case for additional development and it now returns for further appellate review. The Board notes that translated documents have been added to the evidence of record since the issuance of the supplemental statement of the case in November 2020. While the Veteran has not waived AOJ consideration of such evidence, the Board finds that no prejudice results to him in the Board proceeding with the adjudication of his claims at this time, as such evidence is irrelevant to the instant matters or contains findings that are duplicative of those previously considered by the AOJ. 38 C.F.R. § 20.1304(c). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and to include as due to exposure to herbicide agents. The Veteran contends that he has a current acquired psychiatric disorder related to his military service. Specifically, the Veteran attributes his nightmares, flashbacks, and avoidance behavior to his service in Vietnam, to include being exposed to herbicide agents. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). For PTSD, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § § 4.125 (a), a link, established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). An award of service connection requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 ”refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted in the June 2016 and October 2019 Board remands, there has been conflicting medical evidence as to whether the Veteran has a current diagnosis of an acquired psychiatric disorder, to include PTSD, and if so, whether such is related to his military service. The Veteran was afforded a VA a psychological examination in March 2011, but no diagnosis was given. Another examination was provided in April 2018, at which time the examiner found that the Veteran did not have a mental disorder but failed to address all evidence of record reflecting diagnoses or treatment for mental health symptomatology. Consequently, the Board remanded the claim twice in order to ensure that the Veteran was afforded an adequate VA examination clarifying the nature and etiology of his claimed acquired psychiatric disorder. Accordingly, a new VA opinion was obtained in December 2019, with an addendum opinion obtained in November 2020 to elaborate upon the December 2019 findings. At such time, the VA examiner considered the evidence of record and determined that the Veteran does have a current diagnosis of unspecified major depression but does not meet the diagnostic requirements for a diagnosis of PTSD under the DSM-V. In this regard, while he acknowledged the Veteran’s reported stressor of combat experience—which he found met the criterion for having a stressor under the DSM criterion—he also determined that the Veteran did not meet the full diagnostic criteria for diagnosis of PTSD. Specifically, the Veteran did not report enough symptoms to qualify for diagnosis under the DSM-V. Further, while the examiner acknowledged the Veteran did report symptoms of depression, anxiety, difficulty sleeping, and past psychotic features, he found that none supported an additional diagnosis other than that of major depressive disorder. In regard to other disorders mentioned in the record, to include bipolar disorder and other symptoms of psychosis or mood disorders, the examiner found that such were isolated incidents, and that none met the DSM diagnostic criteria for an additional diagnosis. In regard to the Veteran’s diagnosed major depressive disorder, no VA examiner has found that such is related to the Veteran’s military service. The December 2019/November 2020 examiner found that the Veteran’s full range of psychiatric symptomatology, to include this diagnosed depressive disorder, began many years after the Veteran’s service and was associated with other reported stressors, to include economic and relational stress. The examiner emphasized that the Veteran reported non-military related stressors each time he sought psychiatric treatment. The examiner found nothing in the record, to include the Veteran’s presumed exposure to herbicide agents, that served as an adequate nexus relating his currently diagnosed major depressive disorder to his military service. The Board notes that the Veteran’s private treatment provider submitted a statement in July 2013, which described the Veteran’s psychological struggles and stated that such warranted a full evaluation, which she believed would lead to a diagnosis of PTSD in conformance with the DSM-IV. However, as explained supra, upon full evaluation the Veteran has not been found to meet the current diagnostic criteria required for a diagnosis of PTSD in accordance with the DSM-V, which is required for a grant of service connection for PTSD in this case. In this regard, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). In the instant case, the Veteran’s claim was certified to the Board after such date and the DSM-V applies to his claim. The Board affords great probative weight to the December 2019/November 2020 VA examiner’s opinion, as such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and/or PTSD, on any basis, to include due to herbicide agent exposure. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for a heart disorder, claimed as ischemic heart disease and to include as due to exposure to herbicide agents. The Veteran contends he has a current heart disorder related to his presumed in-service exposure to herbicide agents. Specifically, he has stated that he has ischemic heart disease, a disease for which VA law provides presumptive service connection for those veterans exposed to herbicide agents in service. This claim has been subject to two remands and the Veteran has been afforded multiple VA examinations in an attempt to identify exactly what type of heart problems are currently diagnosed and whether such is related to his military service, to include his presumed exposure to herbicide agents. In this regard, the Veteran was afforded a new examination in December 2019, at which time the examiner concluded that the Veteran did not have a diagnosis of ischemia at any point during the period on appeal. However, the examiner failed to opine regarding whether the Veteran’s diagnosed heart valve condition and cardiac dilation are related to his presumed exposure to herbicide agents, as was directed by the October 2019 remand instructions. Accordingly, an addendum opinion must be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to a TDIU. The Veteran asserts that his heart disorder has prevented him from securing and following a substantially gainful occupation since December 2000. In this case, the Board finds the development and adjudication of the issue remanded herein, could impact the Veteran’s eligibility for a TDIU. Therefore, the TDIU claim is inextricably intertwined with such claim and, consequently, adjudication of the former issue must be deferred pending the outcome of the latter issue. 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) The matters are REMANDED for the following action: Forward the record, to include a copy of this Remand, to the clinician who performed the December 2019 VA examination or, if unavailable, an appropriate substitute for an opinion concerning the Veteran’s heart disorder. The need for additional examination is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the clinician should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s diagnosed heart disorders, to include a heart valve condition and cardiac dilatation, are related to his acknowledged in-service exposure to herbicide agents? Why or why not? The examiner is further advised that the sole basis for a negative opinion may not be the fact that the Veteran’s diagnosed heart disease is not on the list of diseases acknowledged to be presumptively related to exposure to herbicide agents. (C) Is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s heart disorder manifested within one year of separation from service in December 1967 (i.e. by December 1968)? In rendering his or her opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to a heart disorder. A rationale for any opinion offered should be provided. C. KAMMEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.