Citation Nr: 21041084 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-40 250 DATE: July 8, 2021 ORDER Entitlement to service connection for gout is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a right foot disorder, claimed as a right foot ingrown toenail is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) is remanded. Entitlement to an initial compensable rating for bilateral hearing is remanded. FINDINGS OF FACT 1. The Veteran's gout was not caused by or related to active duty service. 2. The Veteran's hypertension was not caused by or related to active duty service. 3. Resolving all doubt in his favor, it is at least as likely as not that the Veteran's right foot disorder had its onset during service and/or was otherwise related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for gout have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 3. The criteria for service connection for a right foot disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. The Veteran served on active duty from May 1972 to May 1975. In April 2018, the Veteran testified before the undersigned Veterans Law Judge during a video-conference hearing at the Regional Office (RO), and a transcript is of record. The Board acknowledges that the Veteran is claiming entitlement to service connection for a psychiatric disorder. During the course of this appeal, his psychiatric symptoms have been diagnosed as PTSD, depression, and anxiety. However, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, as reflected in the title page, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In July 2018, the Board remanded the above claims for additional development. There has been only partial substantial compliance with the remand in connection with the claim decided here and the Board apologizes for further delay and can only partially proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection may also 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). Additionally, VA has determined that certain diseases are deemed associated with herbicide exposure. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307, 3.309(e). Such identified diseases shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, subject to the requirements of 38 C.F.R. § 3.307 (a)(6), even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. See 38 C.F.R. § 3.309 (e). 1. Entitlement to service connection for gout 2. Entitlement to service connection for hypertension The Veteran asserts that his gout and hypertension are related to active duty service, to include as secondary to toxic herbicide exposure. As an initial matter, the Veteran's military personnel records confirm he has one year and one day of foreign service, which included service in Vietnam. Thus, the Board finds the Veteran was presumptively exposed to herbicides during active duty service. However, the Veteran does not have a disorder on appeal that is presumptively related to toxic herbicides. Therefore, service connection is not warranted on this basis. However, although service connection is not warranted on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). With respect to hypertension and gout, the Board concludes that while the Veteran has a current diagnosis of these disorders, the preponderance of the evidence weighs against finding that his hypertension or gout began during service or is otherwise etiologically related to an in-service injury, event, or disease. 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), (d), 3.304, 3.307, 3.309. Specifically, aside from occasional and acute episodes of joint pain, the service treatment records are silent for any chronic complaints, symptoms, or a diagnosis relating to gout. With respect to hypertension, there are no service treatment records reflecting treatment, complaints or diagnosis of such although it was slightly elevated during his separation examination in February in 1975. However, his February 1975 separation examination was silent for any health issues. Next, while the Veteran's post-service treatment records include statements to his medical providers regarding symptoms of these disorders since service, the objective medical evidence does not demonstrate any chronic symptoms, or a diagnosis of hypertension or gout until 2013. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While the Veteran is competent to report that he experienced certain symptoms of hypertension and gout, including high blood pressure and foot pain, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his hypertension and gout has persisted since service, the Board determines that the Veteran's reported history of continued symptoms while competent, is nonetheless not sufficient by itself to establish a relationship between his complaints and active duty. As an initial matter, the large gap in treatment for these disorders weighs against the Veteran's claims. Moreover, the Veteran's February 1975 separation examination is inconsistent with the assertions that his symptoms have persisted since service. As such, the Veteran's assertions alone are not sufficient to establish a relationship between his disorders and service. Although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorders on appeal, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. With regard to hypertension, the Board places significant probative value on the opinion from the February 2019 VA examiner that performed a detailed review of the Veteran's service, medical treatment records and examined the Veteran. In this case, the examiner opined that the Veteran's hypertension was not related to service. In support, the examiner noted that the Veteran was not diagnosed or treated until many years after discharge for hypertension, and this disorder was not known to be caused by environmental exposures or toxins. With respect to, the Veteran's gout the Board places significant probative value on the February 2019 VA examiner's opinion that the Veteran's gout was less likely than not related to service. The examiner provided the same rationale as above. Additionally, the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence to establish a nexus between his complaints and active service. As part of this claim, the Board recognizes the statements from the Veteran regarding the relationship between his hypertension, gout and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as high blood pressure and foot pain, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran's disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claim of service connection for hypertension or gout, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 3. Entitlement to service connection for a right foot disorder, claimed as residuals of an ingrown toenail. The Veteran asserts that he is entitled to service connection for a right foot disorder because the disorder originated during active duty service. Alternatively, the Veteran argued that this disorder is secondary to gout. However, this argument is not cogent as he is not service connected for gout. The evidence reflects that the Veteran was diagnosed with a right foot disorder in approximately 2013 per VA treatment records. Accordingly, the first element necessary to establish service connection has been demonstrated. Concerning the second element to establish service connection, the Veteran's service treatment records reflect a right foot in grown toenail that required removal from the right great toe in August 1973. Based on this evidence, the Board concludes that the second element has been demonstrated. Regarding the third element, the Board acknowledges the March 2014 VA examination where the examiner noted a right foot disorder but determined that the condition was not related to active duty service. However, a lack of a medical nexus is not fatal to the Veteran's claim because service connection may be established for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service, to include evidence showing continuity of symptoms during and after service. 38 C.F.R. § 3.303 (d). Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for a right foot disorder is warranted. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran underwent a VA examination in January 2019 to determine the nature of his acquired psychiatric disorder and if it was related to active duty. The VA examiner determined that while the Veteran did not have a PTSD diagnosis, he did have a psychiatric disorder, specifically unspecified depressive disorder. However, because the examiner did not have full access to the Veteran's records he did not opine if the Veteran's disorder was related to active duty service. Thus, a second opinion was obtained in October 2020. At that time, the VA examiner confirmed that the Veteran did not have a diagnosis of PTSD, but he failed to opine on if the Veteran's unspecified depressive disorder was related to active duty service. Therefore, as of right now, these examinations are incomplete, and an addendum opinion is required. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 2. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The July 2018 remand included, the evidence including the credible statements from the Veteran and his fiancée, suggests that his service-connected hearing loss has worsened since his last VA audiological examination in January 2014. Therefore, the Veteran should be afforded a new examination in order to accurately assess the current level of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The Veteran was never afforded this examination and this directive should be complied with in order to properly adjudicate the claim. Moreover, the record reflects that he underwent a VA audiological evaluation in December 2019, but the specific tonal thresholds were never added to the record. On remand, these records should also be obtained. The matters are REMANDED for the following action: 1. Obtain any and all treatment records from the VA Medical Center in New Orleans, Louisiana since March 2014, and any other VA facility from which the Veteran has received treatment. The RO should also obtain the specific audiometric results from any outpatient audiological evaluations performed at a VA facility, such as the one performed in December 2019. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. Return the claims file to the VA examiner who provided the prior opinions regarding the Veteran's acquired psychiatric disorder. The examiner is asked to provide an addendum opinion as to the nature and etiology of any psychiatric disorder other than PTSD, to include as secondary to exposure to hazardous chemicals and/or a service-connected disability. The examiner should opine whether it is at least as likely as not that the Veteran's psychiatric disorder(s) is/are etiologically related to an in-service injury, event, or disease, to include as secondary to exposure to hazardous chemicals and/or a service-connected disability. 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his bilateral hearing disability. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, Associate Counsel