Citation Nr: 21015681 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-06 064 DATE: March 18, 2021 ORDER Service connection for acquired psychiatric disability is denied. REMANDED Service connection for chronic sinusitis is remanded. Service connection for hypertension is remanded. FINDINGS OF FACT The record does not show that the Veteran has a psychiatric disability with a diagnosis. CONCLUSIONS OF LAW The criteria for service connection for acquired psychiatry disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1961 to October 1963. In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in September 2019 and remanded for additional development. The Veteran’s claim of acquired mental disorders has been recharacterized to include all psychiatric disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). The United States Court of Appeals for the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “to function under the ordinary conditions of daily life including employment.” Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Psychiatry disability The Veteran seeks service connection for an acquired psychiatric disability. In support, he reports that the “kill or be killed” mentality that he learned during his military training caused the anxiety and depression that he still experiences. See BVA hearing transcript (May 2019). In September 2019, the Board remanded this issue with instructions for the examiner to consider the Veteran’s psychiatric contentions, medical and lay evidence and to include or exclude a diagnosis of a psychiatric disability. Subsequently, in February 2020, the Veteran was provided a VA examination and the examiner opined that the condition was less likely than not related to service. See VA medical examination (February 2020). The examiner stated that the Veteran does not have a current mental disorder diagnosis that meets DSM criteria. In addition, the evidence on record does not show treatment or a diagnosis for apsychiatric disability or that the condition is related to service or occurred within one year after service. As such, the Board finds that service connection is not warranted. The Board acknowledges that the Veteran credibly provided sworn testimony about the anxiety and depression caused by his experiences in service. However, the evidence on record does not show that the Veteran suffers from a psychiatric condition. Additionally, the Court has held that the plain language of § 4.130 requires a DSM-5 diagnosis to compensate a psychiatric disability and that the most reasonable interpretation of § 4.125(a), when read in conjunction with § 4.130, requires the same. Having provided an interpretation for these regulations, we further hold that the Saunders definition of a “disability” is constrained as relevant by VA's decision to limit the psychiatric disabilities it would compensate. See Martinez- Bodon v. Wilkie, 32 Vet. App. 393, 401 (2020). In reaching this determination, the Board observes that questions of whether the Veteran has a diagnosis of an acquired psychiatric disability involves a complex medical issue to which the Veteran, as a lay person, is not competent to opine. Whether the Veteran has a psychiatric disability is a medically complex issue as it requires knowledge of medicine; hence, his statement does not provide an indication of a nexus to service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011); 38 C.F.R. § 3.159(a) (1-2). Therefore, service connection is not warranted since the record does not have a diagnosis for a psychiatric disability. In light of the forgoing, the Board finds that the February 2020 VA examination and the absence of medical evidence reflecting a diagnosis for a psychiatry disability to be persuasive and of the greatest probative value. Because the evidence shows that the Veteran does not have a current psychiatry disability service connection is not warranted. As such, the preponderance of the evidence is against the claim of service connection is not warranted. Therefore, the Veteran does not warrant service connection for an acquired psychiatric disability. REASONS FOR REMAND Sinusitis and Hypertension The Veteran reports that he is entitled to service connection for his hypertension and sinusitis conditions. In Support, he provided credible testimony regarding the relation of his conditions to service. See BVA hearing transcript (May 2019). On September 2019 the Board remanded this case for further VA medical examinations on the Veteran’s hypertension and sinus conditions. The Board instructed the RO to make at least two attempts to obtain records from Kaiser Permanente hospital since the Veteran credibly testified that his hypertension condition was diagnosed in 1964 at this facility. The record does not show that these attempts were made. In addition, the Board also instructed the RO to schedule a VA examination for his hypertension and for the examiner to opine as to whether it is at least as likely as not that his hypertension is related to an in-service injury, event, or disease or had its onset in service. On February 2020, a VA examiner provided only an opinion stating that the Veteran's condition was less likely related to service. The rationale was that the condition did not incur during service and his blood pressure at separation was 116/68 without mention of a hypertension diagnosis. However, the Board finds that the Veteran should be afforded a complete examination to determine the onset, etiology and nature of his hypertension condition. Additionally, the examiner must opine if his hypertension is aggravated or caused by his service-connected conditions. Further, the examiner should consider the credible lay statements regarding the onset of his hypertension condition. Indeed, the record shows treatment and a diagnosis of hypertension. Regarding his sinusitis condition, the record does not show that the Veteran has been afforded a VA examination. Therefore, the Board finds that the Veteran should be afforded a VA medical examination to determine the onset, etiology and nature of his sinus condition. Additionally, the examiner must opine if his sinus condition is aggravated or caused by his service-connected conditions. Further, the examiner should consider the credible lay statements regarding the onset of his sinus condition. Indeed, the record shows treatment and a diagnosis of chronic sinusitis. As there is no adequate examination to determine the cause, onset, etiology of his sinus and hypertension conditions, a remand is necessary to have the Veteran examined and for an examiner to provide opinions necessary to adjudicate this appeal. Therefore, the Board must remand this matter for new medical examinations that comply with this decision and the Board’s December 2019 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain complete VA and Non-VA treatment records of the Veteran’s sinus and hypertension conditions. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service sinus and hypertension symptoms. The Veteran should be provided an appropriate amount of time to submit this lay and medical evidence. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner to determine the nature, onset, etiology of his sinus and hypertension conditions. a) If a condition is currently present, the examiner should provide a full description of his sinus and hypertension problems and report all signs and symptoms necessary for evaluating the Veteran’s disabilities. b) The examiner must opine as to whether it is at least as likely as not that the Veteran’s sinus and hypertension problems, are related to or had its onset in service. c) The examiner must opine if his service-connected conditions cause or aggravate his sinus and hypertension conditions. In doing so the examiner must specifically acknowledge and discuss the Veteran’s medical and competent lay reports regarding the onset of sinus and hypertension conditions problems and treatment. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.