Citation Nr: 21014535 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 19-32 556 DATE: March 12, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for unspecified anxiety disorder is granted. REMANDED Entitlement to service connection for renal disease, claimed as due to herbicide exposure or secondary to service-connected coronary artery disease (CAD), is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a) at any time during or approximate to the pendency of the claim. 3. Resolving all reasonable doubt in the Veteran’s favor, his unspecified anxiety disorder is at least as likely as not related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125(a). 2. The criteria for service connection for unspecified anxiety disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1969 to February 1971. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in February 2018, that in pertinent part, denied service connection for unspecified anxiety disorder and renal failure. There are other issues that are not before the Board. In a May 2017 rating decision, the AOJ granted service connection and a 10 percent rating for coronary artery disease (CAD), and denied service connection for hypertension and skin cancer. A notice of disagreement was received from the Veteran in May 2017 as to these issues. In a February 2020 rating decision, the AOJ granted a 100 percent rating for service-connected CAD throughout the rating period on appeal. As this issue has been granted in full, it is not in appellate status. With regard to the issues of service connection for hypertension and skin cancer, a statement of the case was issued in February 2020. As a timely substantive appeal has not been received from the Veteran as to these issues, they are not in appellate status. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.22, 19.52 (2020). 1. Service connection for an acquired psychiatric disorder The Veteran contends that he incurred anxiety disorder due to traumatic events in service. Specifically, he asserts that during service in Vietnam, he was exposed to rocket, mortar, and small arms fire, saw a solder fall off a truck, break his neck and die, personally carried wounded soldiers to the landing zone for evacuation, and was exposed to friendly fire. He said he feared for his safety and life for more than 14 months. See Veteran’s statements in January 2017, August 2017, and March 2018. In March 2018, he said that during service, he was a company clerk and processed paperwork to make sure soldiers’ remains and personal effects were properly taken care of. In October 2019, he asserted that his anxiety disorder was due to unloading dead and wounded soldiers in service. The question for the Board is whether the Veteran has a current acquired psychiatric disorder, to include PTSD and anxiety disorder, that began during service or is at least as likely as not related to an in-service injury, event, or disease. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). 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-elements required to establish service connection are: (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 be granted for a disability diagnosed after service when the evidence establishes that the disability was incurred in service. See 38 C.F.R. § 3.303 (d). Service connection for posttraumatic stress disorder (PTSD) requires a medical diagnosis of PTSD 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). The evidence required to support the occurrence of an in-service stressor varies depending on whether the Veteran was engaged in combat with the enemy. If the evidence establishes that a Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such veteran’s service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f). If a stressor claimed by a Veteran is related to the Veteran’s fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304 (f)(3). “Fear of hostile military activity” is defined to mean that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, and the Veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes vehicle-imbedded explosive devices, incoming artillery, rocket, or mortar fire, and small arms fire, including suspected sniper fire. Id. The Veteran’s service personnel records show that his primary military occupational specialty (MOS) was personnel specialist, and he served in the Republic of Vietnam from January 1970 to February 1971. During service in Vietnam he was assigned to an Ordinance Company and his principal duties were personnel specialist and company clerk. He was awarded the Vietnam Service Medal and Vietnam Campaign Medal, and participated in an unnamed campaign in January 1970. Upon review of the record, the Board finds that the evidence of record does not show a medical diagnosis of PTSD meeting the criteria set forth in 38 C.F.R. §§ 3.304 (f) and 4.125(a), and he has not had one 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). However, resolving reasonable doubt in his favor, the Board concludes that the Veteran has a current psychiatric disorder that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The evidence weighing against the claim of service connection for an acquired psychiatric disorder includes the fact that service treatment records are negative for complaints, treatment or diagnosis of a psychiatric disorder. Post-service medical records are negative for complaints or diagnosis of a psychiatric disorder, to include anxiety disorder until 2005, decades after separation from service. VA outpatient treatment records show that PTSD screenings were negative in August 2014 and August 2015. The evidence in favor of the claim of service connection for anxiety disorder includes a January 2005 VA Agent Orange protocol examination in which the Veteran reported anxiety, and said this was a generalized social anxiety he has had for all his adult life. He reported that he sometimes had outbursts, was on Clonazepam for many years, and now used Valium as needed. He did not want a referral to mental health. He denied PTSD, stress, phobia, and depression. He reported the following alcohol history: 6-12 beers on Friday nights since 1999, and previously drank on average 4 beers daily for 31 yrs while working on the railroad. A March 2013 private medical record reflects a diagnosis of generalized anxiety disorder; Xanax was prescribed. Subsequent private medical records reflect ongoing treatment for unspecified anxiety disorder. An August 2013 PTSD screen was positive, but the Veteran refused a referral to mental health. The May 2017 VA PTSD examiner opined that the Veteran’s reported stressor of being exposed to rocket and mortar fire in Vietnam and unloading of wounded soldiers on the landing zone met criterion A (were adequate to support a diagnosis of PTSD), and were related to his fear of hostile military or terrorist activity. However, the VA examiner explained that while the Veteran displayed some of the symptoms of PTSD, he did not meet the full diagnostic criteria for the disorder, and instead diagnosed unspecified anxiety disorder and opined that it is at least as likely as not related to an in-service stressor. The rationale was that he did not experience anxiety prior to the military. The examiner stated that there are no records of the Veteran experiencing anxiety, but he is prescribed Xanax and reports being prescribed other medications for anxiety in the past. The examiner opined that unspecified anxiety disorder at least as likely as not related to hostile military activity due to Vietnam duty. The examiner opined that the Veteran does not meet the diagnostic criteria for a diagnosis of PTSD. The Veteran’s reported stressors of being exposed to rocket, mortar, and small arms fire, and personally carrying wounded soldiers to the landing zone for evacuation, during active duty service in Vietnam from 1970 to 1971 are related to the Veteran’s fear of hostile military activity, and a VA psychologist has confirmed that the claimed stressor is adequate to support a diagnosis of PTSD. Thus, the Board finds that his lay testimony establishes the occurrence of this claimed in-service stressor, which is consistent with the places, types, and circumstances of his service, and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304 (f)(3). With regard to the claim of service connection for an acquired psychiatric disorder other than PTSD, the medical evidence shows that the Veteran has a current diagnosis of unspecified anxiety disorder, and the May 2017 VA medical opinion links this current psychiatric disorder to the Veteran’s reported stressors of being exposed to rocket and mortar fire in Vietnam and unloading of wounded soldiers on the landing zone during active duty. This opinion is competent and highly probative, and is based on the Veteran’s established in-service stressors. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current unspecified anxiety disorder is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for unspecified anxiety disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Service connection for renal disease, claimed as due to herbicide exposure, is remanded. The Veteran contends that his renal failure is due to herbicide exposure during service in Vietnam, or that herbicide exposure caused hypertension which then caused renal failure. Alternatively, he contends that this condition is secondary to service-connected CAD. Renal disease and hypertension are not currently among the diseases for which presumptive service connection is warranted based on exposure to an herbicide agent under 38 C.F.R. § 3.309 (e). The Board cannot make a fully-informed decision on the issue of service connection for renal disease because no VA examiner has opined whether this condition is related to his presumed exposure to herbicide agents, or is secondary to service-connected CAD. Updated relevant VA and private medical records should also be obtained. The matters are REMANDED for the following action: 1. Obtain updated relevant VA and private medical records of treatment or evaluation of a kidney/renal condition. 2. Schedule the Veteran for a VA examination to determine the etiology of the Veteran’s claimed renal disease. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is renal disease at least as likely as not related to service, including presumed exposure to an herbicide agent? The Veteran contends that his herbicide exposure caused renal failure, or that it caused hypertension, which caused renal failure. The examiner is advised that a negative opinion cannot be based solely on the fact that renal disease is not on the list of diseases that are presumptively associated with exposure to herbicide agents. (b) Is renal disease at least as likely as not proximately due to service-connected CAD? (c) Is renal disease at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected CAD? (d) Is it at least as likely as not that renal disease (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). (Continued on the next page)   If it is not possible to provide the requested opinions without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.