Citation Nr: 21015624 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 13-28 438A DATE: March 18, 2021 ORDER Entitlement to service connection for chloracne, to include as due to in-service exposure to herbicide, is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) with alcohol dependence is granted. Entitlement to service connection for acquired psychiatric disorder, including anxiety and major depressive disorder, is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his chloracne was at least as likely as not related to exposure to Agent Orange during service. 2. The Veteran’s PTSD with alcohol dependence were related to the stressors the Veteran experienced as a combat engineer during service. 3. The Veteran did not have diagnoses for anxiety and major depressive disorder during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for chloracne are 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 PTSD with alcohol dependence are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for acquired psychiatric disorder, including anxiety and major depressive disorder, have not 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 had active military service from February 1969 to September 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in January 2016. The appellant is the Veteran’s surviving spouse. She has been accepted the Veteran’s substitute for purposes of processing his appeal to completion. The Veteran served as a combat engineer in Vietnam War. The Veteran requested a hearing in the October 2013 substantive appeal. The appellants withdrew this request in March 2020. The issues of entitlement to service connection for peripheral neuropathy of the upper and lower extremities, hypertension, hearing loss, tinnitus, dental conditions, and a hole in the stomach are not currently before the Board as the Veteran did not file a timely substantive appeal with the September 2015 statement of the case. The issues of entitlement to service connection for an eye disability and aid and assistance are also not before the Board as the Veteran did not file a substantive appeal with the September 2015 statement of the case. 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). 1. Entitlement to service connection for chloracne The Veteran contends that his chloracne is related to his exposure to Agent Orange during service in Vietnam. The Board concludes that the Veteran has a current disability that is related to his military 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). Pursuant to VA regulations, service connection may be established on a presumptive basis for chloracne if a veteran was exposed to an herbicide agent such as Agent Orange during service. See 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran participated in active duty in Vietnam during the Vietnam war. Therefore, he is presumed to have be exposed to herbicide. The evidence is in equipoise as to whether the Veteran had a diagnosis of chloracne during the appeal period. The December 2009 physician who conducted an Agent Orange examination noted that the Veteran had cystic skin lesions that were suggestive of chloracne. The examiner concluded that the Veteran had a diagnosis of chloracne. The examiner noted that the Veteran was in an area that had recently been sprayed with Agent Orange in Vietnam. He also ate food or drink that could have been sprayed with Agent Orange. The March 2011 examiner opined that the Veteran had a single sebaceous cyst of the right lower extremity and that the Veteran had no typical findings of acneform lesions, comedones or other cystic lesions of note on the face suggestive of present or past chloracne. Although the examiner reviewed the “computer file” for the Veteran at the time of the examination, the Veteran’s claims file was not available to the examiner. Resolving all doubt in the favor of the Veteran, the Board finds that the Veteran had a diagnosis of chloracne during the appeal period. Therefore, entitlement to service connection for chloracne is granted due to the Veteran’s presumed exposure to herbicide agents. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) with alcohol dependence 3. Entitlement to service connection for acquired psychiatric disorder, including anxiety and major depressive disorder The appellant contended that the Veteran’s psychiatric disabilities are due to the Veteran’s combat experiences during service. The Veteran had a current diagnosis of PTSD with alcohol dependence as evidenced by the May 2015 examination. Although the May 2011 examiner did not find a diagnosis of PTSD but instead a diagnosis of alcohol dependence, the Board resolves all doubt in the Veteran’s favor and finds that the Veteran had a diagnosis of PTSD with alcohol dependence during the appeal period. The May 2015 examining psychologist also noted that the Veteran did not have clinical anxiety. The psychologist instead found only a psychiatric disability of PTSD and noted that he had alcohol dependence that was associated with his PTSD. Therefore, as there is no diagnosis of anxiety or major depressive disorders, entitlement to service connection for these psychiatric disabilities is denied. The Veteran’s DD 214 shows that the Veteran had active service from February 1969 to September 1970 as a combat engineer. He reported seeing dead bodies on the road, and he used his weapon on the enemy. The May 2015 examiner found that these events clearly meet the Criteria A for PTSD. The evidence shows the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat. There is no clear and convincing evidence to the contrary. Since the claimed stressors are consistent with the circumstances, conditions or hardships of the Veteran’s service, the Veteran’s lay testimony alone establishes the occurrence of the claimed in-service stressor. 38 C.R.R. § 3.304(f)(2). The May 2015 examiner opined that the it is at least as likely as not that the PTSD diagnosis and alcohol dependence were due to the stressors that he experienced while at Da Nang during the Vietnam War. As the Veteran had a current diagnosis of PTSD with alcohol dependence, a nexus medical opinion linking PTSD to service and stressors related to his combat experiences in service, entitlement to service connection for PTSD with alcohol dependence is granted. See 38 C.R.R. § 3.304(f)(2). REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a neck disability is remanded. During the appeal period, the Veteran was diagnosed with degenerative disc disease of the cervical spine and C2-3 left-sided posterior lateral non-specific edema involving bony structures and soft tissues which may be related to acute injury and degenerative joint disease of the back. See July 2007 MRI of cervical spine; see also July 2014 VA treatment record. While serving as a combat engineer in Vietnam, the Veteran reported that he had to attach towers to helicopters and then quickly descend the towers before the helicopter took off. He explained that he had to jump 15 to 30 feet from the towers because the helicopters would be ascending. The terrain was uneven. He believed his back and neck disabilities are due to jumping off these towers during service. The Veteran was not afforded examinations for these disabilities during his lifetime. An opinion is needed to determine whether the diagnoses for the back and neck during the appeal period are related to the Veteran’s military service. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s back and neck disabilities were at least as likely as not related to injuries sustained during service, to include jumping off towers about 15 to 30 feet. 2. Readjudicate the Veteran’s claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.