Citation Nr: 21031287 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-40 924 DATE: May 21, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for esophageal cancer, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2016 by a Department of Veterans Affairs (VA) Regional Office. In October 2019, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, as a result of his fear of hostile military activity while serving in the Republic of Vietnam, to include being subject to an explosion near his base camp. In October 2019, the Board noted that, while a December 2015 VA examination found that the Veteran did not meet the DSM-5 criteria for a diagnosis of a psychiatric disorder, to include PTSD, VA treatment records showed a subsequent diagnosis of depressive disorder in June 2017. Accordingly, the Board remanded the claim to afford the Veteran a new VA examination so as to determine the nature and etiology of his psychiatric disorder. In January 2020, the Veteran was afforded a VA examination, at which time the VA examiner determined that the Veteran's symptoms did not meet the DSM-5 diagnostic criteria for PTSD. Rather, she diagnosed unspecified anxiety disorder, but opined that such disorder was less likely than not related to the Veteran's military service. In this regard, the examiner noted that there was no record of anxiety after service, and he related his symptoms to life stressors and a stroke he suffered in 2017. Moreover, in an August 2020 addendum opinion, the examiner stated that the Veteran's anxiety disorder is a progression of his previously diagnosed depressive disorder as evidenced by the increase in worry, apprehension, nervousness, tension, and simultaneous reduction of depressive symptoms since the prior evaluation. She further indicated that he no longer met the diagnostic criteria for depressive disorder. However, the Board finds that, as the January 2020/August 2020 VA examiner did not address all relevant facts in offering her opinions, a remand is necessary in order to obtain an addendum opinion. Specifically, while she noted the Veteran's report of seeing a psychiatrist approximately 20 years prior to the January 2020 VA examination (which was identified in a June 2017 VA treatment record as occurring in 1996 or 1997) for various psychiatric symptoms, to include distressing dreams, avoidance of crowds, and chronic sleep impairment, at which time he was informed that he likely had PTSD, she did not consider such reported symptoms, which had their onset prior to his stroke. Moreover, the Board notes that, in the Veteran's representative's May 2021 Written Brief Presentation, he cited to medical articles that suggested a relationship between chronic sleep disruption and an elevated risk for meeting the criteria for PTSD, generalized anxiety disorder, and major depressive disorder. Accordingly, the Board finds a remand is necessary in order to obtain an addendum opinion that addresses such matters. Furthermore, on remand, the Veteran should be provided an opportunity to submit, or authorize VA to obtain, the private treatment records pertaining to his psychiatric treatment in 1996 or 1997. 2. Entitlement to service connection for esophageal cancer, to include as due to exposure to herbicide agents. The Veteran claims that his currently diagnosed esophageal cancer is the result of exposure to herbicide agents coincident with his service in the Republic of Vietnam. In the October 2019 remand, the Board noted that, while esophageal cancer is not acknowledged to be presumptively related to exposure to herbicide agents, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the claim was remanded in order to obtain an opinion addressing whether his esophageal cancer is related to his exposure to his military service, to include his exposure to herbicide agents. Accordingly, the Veteran was afforded a VA examination in January 2020, at which time the examiner opined that his currently diagnosed esophageal cancer was less likely as not related to his military service, to include in-service exposure to herbicide agents. In support thereof, he noted that the causes of esophageal cancer is not known and includes risk factors of smoking and drinking alcohol, but does not include exposure to herbicide agents, sore throat, or upper respiratory infection. However, in the Veteran's representative's May 2021 Written Brief Presentation, he cited to medical articles indicating that Agent Orange herbicide is a known human carcinogen that alters gene expression. Thus, he argued that, while the Veteran had risk factors for esophageal cancer, the additional risk factor of being exposed to such toxins altered his DNA and resulted in esophageal cancer. Accordingly, a remand is necessary to obtain an addendum opinion that addresses such matter. The matters are REMANDED for the following action: 1. Request that the Veteran submit, or authorize VA to obtain, the private treatment records pertaining to his psychiatric treatment in 1996 or 1997. After obtaining any necessary authorization from the Veteran, make at least two (2) attempts to obtain records from any identified source. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Return the record, to include a copy of this remand, to the January 2020/August 2020 VA examiner who offered the opinion as to the etiology of the Veteran's acquired psychiatric disorder. If she is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. After a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's currently diagnosed acquired psychiatric disorder, characterized unspecified anxiety disorder (as a progression from an earlier diagnosis of depressive disorder) had its onset in, or is otherwise related to, his fear of hostile military activity while serving in the Republic of Vietnam. In offering such opinion, the examiner should consider the Veteran's reports of seeing a psychiatrist in 1996 or 1997 for various psychiatric symptoms, to include distressing dreams, avoidance of crowds, and chronic sleep impairment, at which time he was informed that he likely had PTSD, and the medical articles cited by the Veteran's representative in his May 2021 Written Brief Presentation that suggests that individuals endorsing sleep disruption are more likely to meet the criteria for PTSD, generalized anxiety disorder, and major depressive disorder. A rationale for any opinion offered should be provided. 3. Return the record, to include a copy of this remand, to the January 2020 VA examiner who offered the opinion as to the etiology of the Veteran's esophageal cancer. If he is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. After a review of the record, the examiner should offer an opinion as to whether the Veteran's esophageal cancer is at least as likely as not (i.e., a 50 percent or greater probability) related to his acknowledged in-service exposure to herbicide agents. In offering such opinion, the examiner should consider the medical articles cited by the Veteran's representative in his May 2021 Written Brief Presentation that Agent Orange herbicide is a known human carcinogen that alters gene expression, and his argument that, while the Veteran had risk factors for esophageal cancer, the additional risk factor of being exposed to such toxins altered his DNA and resulted in esophageal cancer. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.