Citation Nr: 21030384 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-26 210 DATE: May 18, 2021 ORDER Entitlement to service connection for a respiratory disability, to include as due to environmental exposures during Persian Gulf War service, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his respiratory disability is etiologically related to his active duty military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability, to include as due to environmental exposures during Persian Gulf War service, have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to April 1973, November 1990 to July 1991, January 2003 to July 2005, and August 2010 to September 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) regional office (RO) which denied the Veteran's claims of entitlement to service connection for a respiratory disability, to include as due to environmental exposures during Gulf War service, and PTSD. The Veteran timely appealed. In light of the Court's decision in Clemons, the Board has re-characterized the psychiatric issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In July 2019, the Board remanded the issues on appeal for additional evidentiary development. As the requested development has been completed, the matter has been properly returned to the Board for adjudication. Entitlement to service connection for a respiratory disability, to include as due to environmental exposures during Gulf War service, is granted. The Veteran maintains that he has a current respiratory disability that he believes developed due to environmental exposures during his active duty service in the Persian Gulf War. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board finds that the first Shedden element is met. The record demonstrates current diagnoses of respiratory disabilities, including allergic rhinitis/sinusitis and asthma. The Board also finds that the second Shedden element is met. The Veteran is competent to report the onset of symptoms including nasal stuffiness and congestion, throat irritation, cold-like symptoms, shortness of breath, coughing, wheezing, and trouble sleeping. He is also competent to report his exposure to environmental hazards during service. The Board finds that his reports are credible as they are consistent with the circumstances of his verified overseas service during the Persian Gulf War. At issue is whether there is a causal or etiological relationship between the Veteran's current respiratory diagnoses and the onset of the aforementioned symptomatology and environmental exposures during his active duty service. There are two medical opinions of record that directly address this issue. The Board acknowledges the presence of the negative December 2019 VA medical opinion. The VA examiner interviewed the Veteran, reviewed the claims file, and provided a clinical evaluation prior to determining that the Veteran's claimed respiratory condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He reasoned that the Veteran had a history of asthma that was initially diagnosed during service. The examiner went on to define asthma. He found that, while exposure to sand and dust while serving in Afghanistan could have caused an exacerbation of the Veteran's asthma, it was unlikely that such exposure was causing the current claimed intermittent asthma symptoms. While the examiner's ultimate opinion is negative, the Board notes the examiner's admission that the Veteran was first diagnosed with the claimed disability during his military service, a fact that actually weighs in the Veteran's favor, as it supports his assertion of the in-service incurrence of the disability. Thus, the Board finds it is internally inconsistent and is afforded no probative value. See Obert v. Brown, 5 Vet. App. at 30, 33 (1993). The Board further acknowledges the presence of the positive October 2020 private medical opinion. The private examiner evidenced a thorough review of the claims file, including the Veteran's lay statements, service treatment records, and contemporaneous medical records in her opinion. Based on this information and copious medical treatise evidence, she determined that it was more likely than not that the Veteran first developed allergic rhinitis in service and that with time this disability became chronic and complicated with sinus involvement due to his in-service exposure to numerous substances. These substances had an antigenic capability against which the Veteran's immune system developed sensitivity manifesting with allergic episodes of rhinosinusitis causing impairment of his quality of life and leading to compromise of his bronchial airway. She found that the Veteran's compromised bronchial airway, combined with the Veteran's in-service exposure to airborne hazards, including oil wells, fire, smoke, waste burning pits, smoke, fumes, sprayed insecticides and pesticides, motor vehicle exhaust fumes, and inhaled dust and sand, resulted in his development of asthma. The Board finds that this medical opinion is the most probative evidence regarding a nexus as it is fully accurate, fully articulated, and contains sound reasoning for the conclusions therein. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for a respiratory disability is warranted. As the evidence indicates that service connection is warranted on a direct basis, the Board need not discuss any other theories of entitlement. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran maintains entitlement to service connection for an acquired psychiatric disability. The VA must obtain an examination in service connection claims when there is an indication that the current disability may be associated with the Veteran's service and there is a lack of sufficient evidence to decide the claim. See McClendon v. Nicholson, 20 Vet. App 79, 83 (2006). In July 2016, the Veteran underwent a VA examination and no mental disorder was diagnosed. The Veteran proffered a private mental health evaluation that contained DSM-IV/V Axis I diagnoses of PTSD, generalized anxiety disorder, social phobia, and Axis II diagnoses of dependent personality disorder, avoidant personality disorder, and obsessive-compulsive personality disorder in June 2018. He also provided a private Disability Benefits Questionnaire (DBQ) in September 2018 which documented DSM-IV Axis I diagnoses of PTSD, major depressive disorder, and generalized anxiety disorder, and Axis II diagnoses of avoidant personality disorder. The Veteran underwent another VA examination in January 2020 where he was diagnosed with major depressive disorder, recurrent, moderate, with anxious distress that conformed to the DSM-V. The examiner found that the Veteran did not meet the DSM-V requirements for a diagnosis of PTSD. The examiner determined that the Veteran's depression was less likely than not incurred in or caused by service. He found that, despite his conceptualization, the Veteran's depression stemmed from other variables, including thyroid disease, financial disappointments, chronic pain, and limited social support. The Board notes that this opinion is inadequate, as the examiner failed to adequately address the Veteran's contentions concerning his disability and gave no rationale for his conclusion that the Veteran's disability was attributable to non-service-related factors. In October 2020, the Veteran submitted another private mental health evaluation. The private examiner diagnosed the Veteran with subthreshold PTSD and unspecified depressive disorder under the DSM-V. The Board notes that by its very definition, subthreshold PTSD is not a diagnosis of PTSD; it is an acknowledgement that the Veteran has some of the symptomatology related to such a diagnosis but does not meet the full requirements under the DSM for PTSD. Further, while the private physician also confirmed a diagnosis of depression, she attributed this to his subthreshold PTSD and chronic ankle pain, neither of which are service-connected at this time. Thus, this private evaluation and medical opinion are insufficient to substantiate the Veteran's service connection claim. As shown above, the Veteran has been variously diagnosed with several acquired psychiatric disabilities. However, the medical opinions of record are not probative on the question of whether any of these disabilities are related to the experiences the Veteran had in service. Thus, a remand for an addendum opinion is required. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran's claims file. 2. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed acquired psychiatric disorder, to include PTSD, generalized anxiety disorder, social phobia, dependent personality disorder, avoidant personality disorder, and obsessive-compulsive personality disorder, and major depressive disorder. The examiner is asked to clearly denote all diagnosed psychiatric conditions and then provide an opinion as to whether it is at least as likely as not that any such diagnosed condition is related to an in-service injury, event, or disease. In so doing, the examiner is asked to consider all evidence of record, including the Veteran's lay statements concerning his in-service experiences. A complete rationale must be provided for all opinions. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.