Citation Nr: 21041520 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 13-30 737 DATE: July 9, 2021 ORDER A rating in excess of 70 percent for an anxiety disorder, not otherwise specified, is denied. An effective date earlier than February 27, 2004, for the grant of service connection for an anxiety disorder is denied. Service connection for diverticulosis is denied. Special monthly compensation (SMC) based on loss of use of a creative organ is denied. REMANDED Service connection for hypertension (HTN). FINDINGS OF FACT 1. The Veteran had active duty from July 1969 to July 1971, including service in the Republic of Vietnam. He has been 100 percent disabled based on unemployability since February 2004. 2. A psychiatric disorder has been manifested by subjective complaints of anxiety, hypervigilance, and intrusive thoughts; objective findings include depressed mood, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. 3. In a February 1972 rating decision, the Regional Office (RO) denied a claim for an acquired psychiatric disability, claimed as a nervous condition. The Veteran did not appeal that decision and new and material evidence was not received within one year. 4. On February 27, 2004, a claim for service connection for posttraumatic stress disorder (PTSD) was received. 5. In June 2011, the RO granted service connection for an anxiety disorder, not otherwise specified, claimed as PTSD, effective February 27, 2004. 6. The RO associated the Veteran's service treatment records (STRs) with the claims file after the February 1972 rating decision and prior to the June 2011 rating decision. 7. There is no unadjudicated formal or informal claim of service connection for any acquired psychiatric disorder subsequent to the February 1972 decision and prior to the February 27, 2004, claim. 8. The STRs are not relevant service department records as they were not pertinent to the matter at issue in the case because they did not relate to or contribute to establishing any element of service connection and were not the basis for the grant of service connection. 9. Diverticulosis was not shown in-service and is not causally or etiologically related to service, to include as due to herbicide exposure. 10. The Veteran does not have loss, atrophy, or reduction in size of one or more testicles, an absence of spermatozoa, or loss of use of any creative organ stemming solely from a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for an anxiety disorder, not otherwise specified, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9413 (2020). 2. The criteria for an effective date earlier than February 27, 2004, for the grant of service connection for an anxiety disorder, not otherwise specified, have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.156(c), 3.400 (2020). 3. Diverticulosis was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). 4. The criteria for SMC based on loss of use of a creative organ have not been met. 38 U.S.C. §§ 1114(k), 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 3.350 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for an Anxiety Disorder Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Under DC 9411 and the General Rating Formula for Mental Disorders, a 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation for a psychiatric disability is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Turning to the medical evidence, a July 2018 VA examiner reflected that an anxiety disorder resulted in total and occupational and social impairment. Symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships. Further, the examiner's behavioral observations noted that the Veteran was anxious, talkative, hyper-alert, coherent, relevant, logical, appropriate, and very concerned about the consequences of the examination. He was oriented to time, place, and person and there was no evidence of suicidal or homicidal intent. In addition, judgment and insight were good there was no indication of a perceptual or thought disorder and the Veteran seemed in good contact with reality. Further, clinical treatment records reflect that the Veteran continued to receive psychiatric treatment at VA medical centers throughout 2019 and 2020. In April 2019, he was reported as anxious and stressful with traumatic memories, intrusive ideas, hypervigilance, distrust, safety issues, and poor tolerance to stress and frustrations. He also complained of excessive worry and anticipatory anxiety. In August 2019, the Veteran stated that he was anxious and concerned with the situation in Puerto Rico. He reported issues with trust, safety, self-esteem, hypervigilance, reexperiencing traumatic events, and flashbacks. The mental status examination reflected that he was alert and attentive, oriented to time, person, and place, cooperative, and reasonable. He was appropriately groomed, and his speech had a normal rate and rhythm. His language was intact, mood was anxious, and affect was congruent with mood. There was no evidence of perceptual disturbances or suicidal or homicidal intent. Further, thought processes were normal, coherent, and circumstantial. The examiner also noted that thought content was normal but contained excessive worries and traumatic memories. Finally, his insight and judgment were fair, and his memory was grossly intact. A September 2019 treatment record indicated that the Veteran was oriented in time, place, and person and was well-groomed. In July 2020, a VA psychiatrist noted that the Veteran was dysfunctional in several areas because of the impact of combat events, but he was not a danger to himself or others. In September 2020, the Veteran complained of anxiety and intermittent palpitations. He denied suicidal or homicidal intent and hallucinations. Accordingly, the medical evidence does not support a rating in excess of 70 percent. The evidence does not reflect gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name as contemplated by the rating criteria. Further, the clinical treatment records reflect that the Veteran maintains a relationship with his family, including his wife and children. The records also showed that he was able to interact with others and performed satisfactorily in social situations, including crowds. Therefore, the medical evidence does not support a rating of 100 percent for a psychiatric disability. The Board has considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's anxiety disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Earlier Effective Date for the Grant of Service Connection for an Anxiety Disorder Turning to the relevant laws and regulations, unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). The Veteran is seeking an effective date earlier than February 27, 2004, for the grant of service connection for an anxiety disorder. He has argued that the prior rating decision which denied service connection for an anxiety disorder was incorrectly decided as a result of missing service records. He claims that the effective date should be July 8, 1971, the day after his discharge from active duty. As a historical matter, the RO initially denied the claim for a nervous disorder in February 1972 on the basis that a nervous condition was not shown by the evidence. At the time of the denial, the Veteran's DD-214 was a part of the claims file, but no other service records had been obtained. The DD-214 reflected his dates of service, military occupational specialty, and awarded medals, but it did not specifically show combat. The Veteran did not appeal the February 1972 rating decision and it became final. At some point after the February 1972 rating decision, the Veteran's service records were obtained; however, the date-stamp is eligible and it is therefore impossible to know exactly when the records became a part of the file. On February 27, 2004, the Veteran submitted a claim for service connection for PTSD. The RO treated the claim as a new claim rather than as an application to reopen. In July 2004, the RO denied service connection for PTSD, which specifically considered the STRs as evidence in the claim. The Veteran appealed this decision and the Board denied the appeal in October 2008. Specifically, the Board listed the Veteran's medals that were awarded on the DD-214 and found that he did not engage in combat with an enemy force while stationed in Vietnam. The Board noted the Veteran's statement that the ammunition storage facility where he was stationed frequently came under enemy attack. He also stated that his friend died during one of these attacks, but this incident was not verified by JSRRC. The Veteran appealed the Board decision to the Court, and in a July 2009 Joint Motion for Remand (JMR), the Court Clerk vacated the October 2008 decision and remanded to the Board for further development. In April 2011, a VA examination report reflected that the examiner did not review the STRs because the Veteran stated that they were destroyed in fire. Even so, the examiner found that the Veteran expressed fear for military hostility and opined that the psychiatric disorder was at least as likely as not caused by combat exposure. Thereafter, the RO granted service connection for an anxiety disorder in a June 2011 rating decision. Generally, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c)(1). As used in this section, "relevant" means noncumulative and pertinent to the matter at issue in the case. Kisor v. Shulkin, 869 F.3d 1360, 1368-69 (Fed. Cir. 2017). Such "relevant official service department records" include, but are not limited to service records that are related to a claimed in-service event, injury, or disease, additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records, and declassified records that could not have been obtained because the records were classified when VA decided the claim. An award made based all or in part on such relevant official service department records is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later, or such other date as may be authorized by the provisions of this regulation applicable to the previously denied claim. 38 C.F.R. § 3.156(c)(3). Here, official service department records, specifically the STRs, existed and had not been associated with the claims file when VA first decided the claim in February 1972. The Veteran contends that these records are relevant because they corroborated his lay statements regarding fear of hostile military action. For the following reasons, the Board finds that these service records are not relevant to the claim for service connection that was granted. The grant of service connection for an anxiety disorder, not otherwise specified, claimed as PTSD, was based on the April 2011 VA examiner's medical opinion. This opinion did not rely on the service department records, including STRs or service personnel records. At the time of the examination, the Veteran indicated to the examiner that the STRs had been destroyed in a fire. Although the records were not actually destroyed, the examiner proceeded under the assumption that they were and formulated his medical opinion based on the evidence of record. Therefore, he did not rely on the STRs to make his conclusion. Rather, the April 2011 VA examiner relied on the Veteran's lay statements, which indicated that the ammunition storage center where he was stationed was constantly under fire and he feared for his life. As such, the VA examiner found that the Veteran experienced fear of military hostility. Further, upon review, the STRs are negative for any complaints of, treatment for, or diagnosis of a psychiatric disorder. Importantly, the July 1971 separation examination reflected a normal clinical psychiatric evaluation. Therefore, the STRs are not pertinent because the grant of service connection was based on the April 2011 medical opinion that found the Veteran's psychiatric disorder was due to fear of hostile military activity based on his own description of service. The STRs are therefore not relevant under 38 C.F.R. § 3.156(c). In addition, service department records, including the service personnel records, which noted the Veteran's assignment to the 611th Ordinance Company in Vietnam as an ammunition storage specialist, were added to the record after the 1972 rating decision. The Veteran contends that these records corroborated his account of having been assigned to an ammunition storage depot that came under frequent attack. As such, he argues that this evidence supports an earlier effective date. However, these personnel records are not relevant because the VA examiner had already considered the Veteran's fear of hostile military activity based on his lay statements. Additionally, the VA examiner's opinion was based on the fact that the Veteran's ammunition storage depot came under frequent attack, regardless of the service department records. As such, the personnel records were not pertinent to the matter and were therefore not relevant under 38 C.F.R. § 3.156(c). Accordingly, reconsideration of the Veteran's claim on a de novo basis under 38 C.F.R. § 3.156(c) is not required based upon the additionally received documents and the provisions of 38 C.F.R. § 3.156(c) are not for application in this case and cannot serve as the basis for the grant of an earlier effective date. Further, there is no evidence of any unadjudicated formal application to reopen the claim of service connection for a psychiatric disability subsequent to the February 1972 rating decision and prior to the February 27, 2004 claim, nor is there any prior communication in the record that could be considered an informal claim for VA compensation. In addition, while the service department records associated with the claims file after VA denied the Veteran's claim in February 1972, they are not relevant service department records under 38 C.F.R. § 3.156(c). Accordingly, February 27, 2004, is the earliest possible effective date for the grant of service connection for an anxiety disorder. Therefore, the appeal for an earlier effective date for the award of service connection for an anxiety disorder must be denied. Service Connection for Diverticulosis Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served between April 1968 and August 1971 in or near the Korean Demilitarized Zone. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the medical evidence, the clinical records and VA examinations reflect that the Veteran was diagnosed with diverticulosis in 2003. Accordingly, a current disorder has been shown and the first element of service connection has been met. As to in-service incurrence, the STRs do not show complaints of, treatment for, or a diagnosis of diverticulosis during service. Importantly, the July 1971 separation examination reflected a normal clinical evaluation of the abdomen and viscera. Therefore, the medical evidence does not reflect the in-service incurrence of diverticulosis and the second element of direct service connection has not been met. Next, the Veteran contends that diverticulosis was due to exposure to herbicides, including Agent Orange, during service. Personnel records reflect that the Veteran had active service in the Republic of Vietnam. As such, exposure to Agent Orange is conceded. Although exposure to Agent Orange has been conceded, the enumerated diseases which are associated with herbicide exposure do not include diverticulosis. 38 C.F.R. § 3.309. Therefore, service connection is not warranted on a presumptive basis. As to service connection with proof of direct causation, a March 2020 private opinion reflected that exposure to herbicides, including Agent Orange, had been related to many human diseases and conditions in which complex and multiple inflammation processes were a common pathophysiologic hallmark. The clinician noted that there is no definite relationship between gastrointestinal conditions, including diverticulosis, and Agent Orange exposure based on current medical studies. Despite this, she concluded that diverticulosis was at least as likely as not a result of in-service exposure to toxicants contained in herbicides, including Agent Orange. The nexus opinion was written by S.D.P., Doctor in Medicine, CMC, MSAS, Venezuela. As noted in the previous Board remand, S.D.P. provided her residential address and telephone number but no business contact information or additional information regarding her education, experience, or credentials. As such, this lack of information makes it unclear whether S.D.P. is credible to render a medical opinion on behalf of the Veteran. See Sklar v. Brown, 5. Vet. App. 140, 146 (1993) (professional credentials and experience of opinion providers are properly considered in assigning probative value). Further, this opinion is afforded lesser probative value as S.D.P. based her opinion on medical studies which she specifically indicated found no definite relationship between gastrointestinal disorders and Agent Orange exposure. This inconsistency renders the opinion of lesser probative value. On the other hand, an August 2020 VA examiner found it less likely than not that diverticulosis was incurred in or caused by service, to include exposure to Agent Orange. The examiner noted that the STRs were silent for diagnosis or symptoms of diverticulosis during service and the Veteran was not diagnosed with diverticulosis until 2003, approximately 33 years after separation from service. Further, he indicated that diverticulosis was not a disease associated with Agent Orange exposure. This opinion is afforded more probative value as it was provided by a credible VA physician and was based on the Veteran's medical history. As such, the weight of the medical evidence does not support the claim on a direct causation basis. The Board has considered the Veteran's lay statements that his disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examination obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Special Monthly Compensation SMC is a statutory award in addition to awards based on the schedular evaluations provided by the diagnostic codes in the VA Rating Schedule. SMC claims based on loss or loss of use of a creative organ are governed by 38 U.S.C. § 1114(k) and 38 C.F.R. §§ 3.350(a)(1), 3.352. SMC is payable at a specified rate if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organ. Loss or loss of use includes physical absence of a testicle as well as a reduction in size or atrophy of the testes or the absence of spermatozoa. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). When loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted. 38 C.F.R. § 3.350(a)(1)(i-ii). In the present case, Veteran has not alleged either of his testicles is absent, that one of his testicles is smaller or of different consistency than the other, or that he lacks sperm production; i.e., that he is sterile. He also has not alleged that he incurred wounds or trauma in service involving the creative organs, that he underwent any operation involving either testicle, or that he had any disorder in service directly resulting in impairment of the creative organs. On VA examination in August 2020, the examiner described the Veteran's genitalia as benign, without abnormality, and the Veteran has not alleged otherwise. Rather, he has only alleged impairment in the ability to obtain and maintain an erection. After thorough consideration of the evidence of record, the Board concludes that entitlement to SMC based on loss of use of a creative organ is not warranted. There is no evidence of record to suggest that he currently has an anatomical loss, or loss of use of a creative organ, as defined in the regulations. Additionally, there is no evidence of acquired absence of one or both testicles or other creative organs, and the Veteran does not contend that he has such anatomical loss. He asserts that a service-connected psychiatric disorder impairs his ability to maintain an erection; however, ED not related to an anatomical loss, or loss of use, of a creative organ does not entitle the Veteran to SMC under the pertinent regulations. By the Veteran's own admission upon examinations, he is able to obtain an erection with the use of medication. Accordingly, entitlement to SMC based on loss, or loss of use, of a creative organ is not warranted and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In a May 2020 decision, the Board noted that current medical literature suggested a possible association between HTN and Agent orange exposure. As such, the Board remanded the claim for entitlement to service connection to obtain a VA medical opinion to determine the etiology of currently diagnosed HTN. In August 2020, a VA examiner opined that HTN was less likely than not caused by or a result of active service. Regarding herbicides, he stated that there was no evidence of Agent Orange exposure as the patient was not a Vietnam War Veteran. As such, he did not offer an opinion concerning HTN and Agent Orange; however, the record clearly reflects that the Veteran had service in the Republic of Vietnam. Therefore, an additional remand is required to obtain an appropriate medical opinion. The matter is REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and clinical treatment records and associate them with the claims file. 2. Direct the claims file to a clinician for an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that HTN is etiologically related to service, to specifically include in-service exposure to Agent Orange. A rationale for must be provided for any opinion rendered. 3. If the clinician determines that an examination is necessary in order to provide the requested opinion, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kokolas, 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.