Citation Nr: 21012502 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-00 953 DATE: March 4, 2021 ORDER Entitlement to service connection for mental confusion, to include as due to herbicide exposure or secondary to service-connected disabilities, is denied. REMANDED Entitlement to service connection for a thyroid condition, to include as due to herbicide exposure is remanded. FINDING OF FACT The preponderance of the evidence is against finding that mental confusion began during active service, or is otherwise related to an in-service injury or disease or secondary to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for mental confusion are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1968 in the United States Army, to include active duty service in the Republic of Vietnam. In November 2020, the Board remanded the claims for additional development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Entitlement to service connection for mental confusion, to include as due to herbicide exposure or secondary to service-connected disabilities. The Veteran contends that his mental confusion is etiologically related to herbicide exposure. Alternatively, he contends that mental confusion is secondary to service-connected coronary artery disease (CAD) or thyroid condition. 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). 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’s mental confusion does not represent an independent diagnosed mental condition has not 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 July 2018 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of mental confusion, he did not have a diagnosis of any psychiatric or mental disability. This is further confirmed by a second VA medical opinion in March 2020, and a December 2020 VA medical opinion characterizes the condition as “undiagnosed mental confusion.” Turning to the other contention, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated by service-connected disability. The Board notes that, as stated above, the competent medical evidence does not support mental confusion as an independent psychiatric condition. Nevertheless, development has been conducted throughout the appeal to determine whether the Veteran’s mental confusion represents a symptom that is caused or aggravated by his service-connected coronary artery disease or thyroid condition. The Veteran’s thyroid condition, hyperthyroidism, is not a currently service-connected disability, however the March 2020 VA examiner opined that the Veteran’s mental confusion is not secondary to his hyperthyroidism, and instead more likely a symptom of aging. The examiner cited the infrequent and momentary nature of the confusion and the opinion of the Veteran’s primary care provider that this was symptomatic of aging. In December 2020 a VA medical opinion was obtained to determine the same question with regard to the Veteran’s service-connected CAD. The examiner opined that the Veteran’s mental confusion is not secondary to his service-connected CAD, citing that the experiences the Veteran describes are “intimately linked to hypotension (low blood pressure)” which the Veteran does not have a diagnosis for. The examiner further noted that with respect to the heart procedure the Veteran underwent due to his CAD, “any impact on the brain would have been immediate and constant, rather than the delayed/intermittent symptoms described by the patient.” The Veteran believes his mental confusion is proximately due to or the result of, or by a service-connected disability. The Veteran in this case is not competent to provide a diagnosis or nexus opinion. The issue is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the adequate VA medical opinions. Therefore, there is no basis to establish service-connection for mental confusion as it is neither a separately diagnoseable disability related to active duty service or secondary to service-connected disability. REASONS FOR REMAND Entitlement to service connection for a thyroid condition, to include as due to herbicide exposure is remanded. The claim must be remanded again because the medical opinions obtained to date are inadequate as to a possible connection to the Veteran’s conceded herbicide exposure in Vietnam. A December 2020 VA opinion included a negative nexus opinion. In support of this conclusion the examiner cited the update to the National Academies of Science’s Agent Orange reference book, which the examiner noted reports studies that have “shown both increased incidences of and decreased incidence of hyperthyroidism among people exposed to dioxin-like chemicals.” The examiner also cited portions of the material that indicate “the use of 2,4,5-TP was found to be associated with a decreased risk of hyperthyroidism” and 2, 3, 7, 8-Tetrachlorodibenzo-p dioxin (TCDD) exposure, a chemical found in agent orange, is associated with increases in hypothyroidism. However, agent orange as used in the Republic of Vietnam was also comprised of the chemicals 2,4-D and 2,4,5-T. The examiner’s cited rationale, while identifying these chemicals, does not address these two chemicals in the context of hyperthyroidism. Further clarification is required. Additional private treatment records were associated with the record after the Agency of Original Jurisdiction (AOJ) issued the January 2021 SSOC. That evidence must be reviewed on remand. Evidence indicates that there may be outstanding relevant VA treatment records. The Veteran indicated in a February 2020 correspondence that he may have outstanding VA clinical treatment records pertaining to his thyroid condition. The Veteran reported that he was treated at the Murphy VA Medical Center in February 2020 and was advised of “substantial abnormality.” Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2020 to the Present. 2. After completion of the above, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hyperthyroidism is at least as likely as not related to conceded herbicide exposure during active duty service. The examiner must address any connection between hyperthyroidism and all of the chemicals composing the herbicide Agent Orange, specifically 2,4-D and 2,4,5-T. Copies of all pertinent records must be made available to the provider. The examiner must review treatment records associated with record in February 2021. For any medical literature cited or relied on, the examiner must identify such literature so that its relevance to the specific medical questions raised and probative value may be assessed. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner’s own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.