Citation Nr: 21015572 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-52 605 DATE: March 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is denied. FINDINGS OF FACT The Veteran’s acquired psychiatric disorder was not incurred in, caused by, or aggravated by active service. CONCLUSIONS OF LAW The criteria for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 3.304(f), 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to August 1965. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in January 2020. The transcript has been added to the record. In addition to PTSD, the record also shows a diagnosis of unspecified depressive disorder. Therefore, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds that it is appropriate to recharacterize the claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and unspecified depressive disorder. In a February 2020 Board decision, the issues of service connection for an acquired psychiatric disorder, kidney disorder, and hypertension were remanded for further development. Specifically, for the acquired psychiatric disorder issue to obtain the most recent VA treatment records and to obtain a VA examination. For the hypertension and kidney disorders, VA was asked to determine whether the Veteran served aboard a vessel that was within the 12 nautical mile territorial sea of Vietnam, to schedule the Veteran for a VA examination for both disorders, and to obtain a medical opinion as to whether the Agent Orange exposure caused the Veteran’s disorders. While VA followed all the remand instructions, the Board finds that the VA examinations and opinions were inadequate for the kidney and hypertension disorders and the matters must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that there has been substantial compliance for the issue of service connection for an acquired psychiatric disorder and that it is properly before the Board for adjudication. By this remand, the Board intends no determination, explicit or implied, as to the credibility of any statements of record. Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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 for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that service connection for an acquired psychiatric disorder, to include PTSD and unspecified depressive disorder, is warranted as directly related to events experienced during active service. The Veteran asserted multiple stressors that he considered traumatic and to be the cause for his mental health disorder. He first reported that in 1965 while he was stationed on an aircraft carrier, he witnessed a sailor walk into a propeller and subsequently saw his body be scattered all over the deck. The Veteran reported that others had to hose the dead sailor off into the ocean. He reported that this incident caused him to be more careful of being on the flight deck. The Veteran reported another stressor where he would see planes leave and return riddled with bullet holes. He furthered that he watched a few planes fall off the carrier while taking off. He also reported that he was in constant fear of his life while he was deployed. Service treatment records (STRs) are silent as to any complaints of or treatment for psychiatric problems. There is no indication that the Veteran experienced any mental disabilities during military service. His August 1965 separation examination did not indicate any psychiatric issues, and he did not make any psychiatric complaints at his September 1966 report of medical history. Post-service treatment records reflect the Veteran was afforded a VA PTSD examination and the examiner assessed that the Veteran did not have a mental health problem and did not diagnose him with any disorder. Moreover, the examiner noted that the Veteran did not exhibit any symptoms that would be related to PTSD or to another mental health disorder. The examiner noted that the Veteran has never had a reason to pursue any mental health treatment in the 50 years since he has been out of the Navy. Mental health treatment records began from October 2015 when he was seen for a mental health consultation regarding road rage and difficulty sleeping. In a December 2015 VA treatment record, the examiner reported that the Veteran stated that he would consider attending a group at the VAMC if it would help him get the PTSD compensation that he applied for. In a February 2016 VA treatment record it was noted that the Veteran requested his primary care physician to diagnose him with PTSD. In a February 2016 VA treatment record, the Veteran again repeated that he needed a diagnosis of PTSD in his chart and also reported that he gets a lot of nightmares. A March 2016 VA treatment record reported that the Veteran explained he never saw a psychiatrist before but that he suffered from nightmares and flashbacks since his time in the Navy during the Vietnam War. He reported never seeing a mental health professional because he thought he could deal with his problems himself. A June 2016 VA treatment record reported that the Veteran was diagnosed with PTSD recently, but this diagnosis was provided to the provider by the Veteran. A July 2017 PTSD screening came out negative. A July 2019 VA treatment record listed PTSD as a past medical history and reported that the Veteran was no longer followed by BHOST and that the Veteran will let the physician know when he needs to see him again. The Veteran was afforded another examination in July 2020. The examiner reported that the Veteran did not have a diagnosis of PTSD, but that he did have a diagnosis of unspecified depressive disorder. The examiner noted that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted that the Veteran began mental health treatment in 2014 at a VA treatment center, but that currently he was not seeking any treatment. The Veteran reported two stressors that the Veteran considered traumatic and to be the cause for his mental health disorder. He first reported that in 1965 while he was stationed on an aircraft carrier, he witnessed a sailor walk into a propeller and subsequently saw his body be scattered all over the deck. The Veteran reported that others had to hose the dead sailor off into the ocean. He reported that this incident caused him to be more careful of being on the flight deck. The examiner reported that while this stressor was adequate to support the diagnosis of PTSD, it did not relate to the Veteran’s fear of hostile military activity since he had witnessed a fellow sailor’s accidental death. The Veteran reported another stressor where he would see planes leave and return riddled with bullet holes. He furthered that he watched a few planes fall off the carrier while taking off. The examiner reported that this stressor was adequate to support the diagnosis of PTSD and it also related to his fear of hostile military activity. The Veteran reported that he feels as if his anxiety is increasing and that he has not been able to watch the news about funerals or anything with death since he separated from the Navy. While the examiner opined that the Veteran’s medical records do not support a claim for a diagnosis of PTSD, he was diagnosed with another psychiatric disorder. The examiner furthered that the diagnosis of unspecified depressive disorder is less likely than not a result of an in-service stressor related event since the medical records do not support the claim that any current mental health diagnoses incurred in or a result of any in-service related event. The examiner opined that it is more likely that the Veteran’s diagnosis of unspecified depressive disorder is a result of current and ongoing life stressors such as retirement and age. With regard to the Veteran’s claim for PTSD, the Board finds that there is no probative evidence of record providing a diagnosis for, or otherwise indicated the presence of, PTSD. While VA treatment records reflect a PTSD diagnosis in some records, this was due to the Veteran reporting to a provider that he was recently diagnosed with PTSD. No VA provider examined the Veteran and reported that he had PTSD. Moreover, both of the VA examiners from the VA examinations reported that the Veteran did not have a diagnosis of PTSD. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1101. Thus, evidence of a current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran has, however, received a diagnosis for unspecified depressive disorder. After review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s psychiatric disorder is related to his military service. There is no evidence of record that a psychiatric disorder was present during his period of active duty. The evidence weighs against warranting service connection for an acquired psychiatric disorder. As stated above, there was no complaint or symptoms of an acquired psychiatric disorder during military service. Moreover, there is no probative evidence showing continuity of symptoms since service related to any psychiatric disability. The only evidence are lay statements by the Veteran himself claiming that he has experienced psychiatric problems since leaving military service. Additionally, the earliest medical evidence of record indicating the presence of a psychiatric disorder is about 49 years after separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Given the rather large gap in time between service and when the Veteran sought treatment for psychiatric disability, coupled with the records showing the Veteran was pressing his clinicians for a diagnosis in connection with his claim for VA compensation, the Board finds the Veteran’s account of symptoms since service to lack credibility. Furthermore, the Board notes that the record lacks any evidence connecting his currently diagnosed unspecified depressive disorder and his period of active service. The record in this case is negative for any indication, other than the general assertions of the Veteran that an acquired psychiatric disorder is related to his period of active military service. The Board notes that a lay person is competent to give evidence about observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the questions of diagnosis and causation extend beyond an immediately observable cause-and-effect relationship. Thus, neither the Veteran nor his attorney is competent to address the diagnosis or etiology of the Veteran’s disability. Therefore, the Board finds that there is no probative evidence of record, lay or medical, indicating that the Veteran’s current psychiatric disorder was incurred in or otherwise related to active service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REMANDED Entitlement to service connection for a kidney disorder secondary to Agent Orange exposure is remanded. Entitlement to service connection for hypertension secondary to Agent Orange exposure is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a kidney disorder secondary to Agent Orange exposure is remanded. 2. Entitlement to service connection for hypertension secondary to Agent Orange exposure is remanded. The February 2020 Board decision remanded the issues of a kidney disorder and hypertension to confirm whether the Veteran was within the 12 nautical miles off the coast of Vietnam to see if he fell under the herbicide exposure presumption. After development made by VA, it was confirmed that the Veteran’s ship was within the 12 nautical miles off the coast of Vietnam and that herbicide exposure was conceded. VA then obtained VA examinations for both disorders in August 2020. According to an email correspondence in August 2020, the examiners were unable to complete a medical opinion due to the topic of determining if each disorder is related to herbicide exposure. The VA examinations were reviewed by another medical provider and opined on both disorders. The examiner reported that the Veteran’s electronic folder was reviewed where the Veteran has been diagnosed with hypertension. The examiner furthered that hypertension is not a presumptive medical condition associated with herbicide exposure. There was no further rationale or explanation. Then the examiner noted that kidney failure is not a presumptive condition of herbicide exposure. The examiner furthered that the Veteran does have kidney failure, but that he has several conditions that lead to kidney disease and failure. The examiner listed type II diabetes, hypertension, and renal cancer as conditions that can lead to kidney disease. The examiner ultimately opined that it would be mere speculation to determine the etiology of the Veteran’s kidney disorder. The Board finds these medical opinions to be inadequate as there is no rationale provided other than a conclusory statement that each disorder is not a presumptive disorder associated with herbicide exposure. While the examiner did note that the Veteran has several disorders that could lead to kidney disease and failure, his statements were not corroborated by any medical evidence. When VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). Moreover, there is evidence that hypertension may be linked to Agent Orange exposure during the Vietnam War. The National Academies of Sciences, Engineering, and Medicine issued a report on November 15, 2018 reporting that hypertension “was moved to the category of ‘sufficient’ evidence of an association from its previous classification in the ‘limited or suggestive’ category.” The report furthered that “the sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association.” The Board finds that a remand for new VA medical opinions is necessary to rectify this duty to assist error. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a new clinician regarding whether the Veteran’s kidney disorder is at least as likely as not related to Agent Orange herbicide exposure. The examiner cannot make a conclusory statement claiming that kidney disorders are not under the herbicide exposure presumptive list. The examiner must provide a thorough rationale as to the Veteran’s specific situation. 2. Obtain an addendum opinion from a new clinician regarding whether the Veteran’s hypertension is at least as likely as not related to Agent Orange herbicide exposure. The examiner cannot make a conclusory statement claiming that hypertension is not under the herbicide exposure presumptive list. The examiner must consider the findings of the National Academies of Sciences, Engineering, and Medicine report from November 15, 2018 that moved hypertension to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.