Citation Nr: 21042699 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-24 999A DATE: July 13, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for a kidney disorder is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is remanded. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed as having been exposed to herbicides during such service. 2. The Veteran has hypertension that likely resulted from in-service herbicide exposure. 3. The Veteran was treated in 2009 and 2010 for kidney stones that were not incurred during active duty service, did not result from an in-service injury, illness, or event, and neither resulted from nor were aggravated by the Veteran's service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for a kidney disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from April 1964 through April 1966, to include service in Vietnam. The issues on appeal arise from the Veteran's November 2012 claim and the agency of original jurisdiction's (AOJ's) April 2013 rating decision. The issues were remanded previously by the Board in February 2018 and in October 2020. The AOJ has completed development that complies substantially with the remand actions ordered by the Board. The matter now returns to the Board for review. Service Connection Generally, service connection will be granted if the evidence shows that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires an evidentiary showing of three essential elements: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection for certain listed chronic diseases may also be awarded under 38 C.F.R. § 3.309(a) on a presumptive basis even in the absence of evidence showing the onset of that disability during service, provided that such disability is shown as having been manifest to a compensable degree within one year of separation from active duty. In such instances, the disease at issue is presumed as having been incurred during active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through an evidentiary showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease that was first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for hypertension. The Veteran's service department records and DD Form 214 show that the Veteran served in Vietnam. He is therefore presumed as having been exposed to herbicides during service. 38 C.F.R. § 3.307(a)(6)(iii). That presumption is not rebutted in the record by any contrary evidence. The records show that the Veteran has remained under treatment for hypertension since 2000. A December 2020 examination confirmed the Veteran's continuing hypertension. Based on facts shown in the current medical literature, the examiner opined that it is at least as likely as not that the Veteran's hypertension resulted from his in-service herbicide exposure. The Veteran is entitled to service connection for hypertension. To that extent, this appeal is granted. 2. Entitlement to service connection for a kidney disorder. The Veteran asserts broadly in his November 2012 claim that he is entitled to service connection for an unspecified kidney disorder which he believes resulted from his presumed herbicide exposure during service. The evidence shows that the Veteran was treated for nephrolithiasis (kidney stones) manifested by abdominal pain and hematuria in the summer of 2009. The Veteran ultimately underwent nephrolithotomies in February and May of 2010. Nonetheless, the evidence does not support the conclusion that the Veteran's kidney stones were incurred during service, that they resulted from an in-service event, or that they either resulted from or were aggravated by any service-connected disabilities. The Veteran's service treatment records are entirely silent for any kidney-related complaints, findings, or treatment. Indeed, both the Veteran's February 1964 pre-enlistment examination and April 1966 separation examination revealed normal findings of the Veteran's abdomen and viscera. The post-service treatment records are silent for any kidney-related problems other than the kidney stones mentioned above. The records show no subsequent recurrence of kidney stones or any underlying condition causing the kidney stones. Similarly, the records express no opinion as to the cause or origin of the Veteran's kidney stones in 2009. A September 2019 kidney examination concluded that the Veteran did not have an ongoing kidney disorder. During a repeat examination conducted in December 2020, the examiner noted the same medical history reported above and noted that there is no evidence in the record of renal dysfunction, recurrent urinary tract infections, kidney infections, transplant or removal, or tumors or neoplasms. Laboratory tests and urinalysis studies conducted as part of the examination were normal. The examiner opined that it is less likely than not that the Veteran's kidney stones were incurred during service or that they resulted from an in-service injury, illness, or event. As rationale, the examiner noted that the Veteran's own reported history and the evidence in the record both showed that the Veteran's kidney stones were incurred more than 30 years after his separation from service. Further, the examiner states, a review of the medical literature shows no known relationship between kidney stones and herbicide exposure. The examiner added a revised opinion that it is also less likely as not that the Veteran's kidney stones are due to or the result of, or aggravated by, the Veteran's diabetes. Citing medical literature again, the examiner stated that there is also no known etiological relationship between kidney stones and diabetes. To that end, the examiner points out that the two disorders represent different disease entities with different pathophysiological processes that are not related etiologically. Although the Board sympathizes with the Veteran's earnest belief that his kidney stones were caused in some way by his herbicide exposure during service, the Board is unable to assign the Veteran's assertions in that regard any probative weight. The Veteran is not qualified to render a probative opinion as to such a complex question as to whether such an etiological relationship exists. Rather, the Board is persuaded by the December 2020 examiner's negative opinion, which is consistent with the medical history and other evidence in the record and is supported by medical literature. The Veteran is not entitled to service connection for a kidney disorder. To that extent, this appeal is denied. REASONS FOR REMAND 3. Private mental health treatment records from Dr. M.A.R.C. The Board requested in its previous October 2020 remand that VA undertake efforts to locate and obtain the Veteran's private mental health treatment records from Dr. M.A.R.C. The AOJ wrote to the Veteran in November 2020 and requested that the Veteran provide a signed VA Form 21-4138 release for Dr. M.A.R.C.'s records. The Veteran did not reply. As explained below, further remand is required in order to afford the Veteran a new mental health examination. Certainly, the information and findings expressed in Dr. M.A.R.C.'s treatment records would be of assistance to the examiner, and also, assist the Board in its review of the matter. As such, the AOJ should attempt again to contact the Veteran and request additional information and his assistance in obtaining Dr. M.A.R.C.'s records, to include a signed VA Form 21-4138 release. After such information and assistance has been obtained, the AOJ should undertake efforts to obtain those records. 4. Mental health examination. The Veteran asserts in his November 2012 claim that he is entitled to service connection for PTSD. As mentioned above, the Veteran served in Vietnam and his DD Form 214 indicates that he performed duties as a combat engineer. The Veteran has asserted various combat-related stressors in his claim and during mental health examinations conducted in February 2013, October 2014, November 2016, and September 2019. The previous mental health examination concluded that, although the Veteran's reported combat stressors meet the criteria for a PTSD diagnosis, the Veteran's symptoms and overall presentation did not. The examiners concluded that the Veteran did not have PTSD but instead had a depressive disorder. Although the Veteran asserts expressly entitlement to service connection for PTSD, where the evidence shows a diagnosis for depressive disorder, the Board is compelled to consider whether service connection is warranted for that disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Neither the February 2013 nor the October 2014 examiner rendered any opinion as to whether the Veteran's depression is related etiologically to the Veteran's active duty service. The November 2016 and September 2019 examiners both opined that it is less likely than not that the Veteran's depression was incurred during service or caused by an in-service injury, illness, or event. Those opinions, however, appear to have been based largely on the examiners' findings that the Veteran did not seek mental health treatment in service and did not receive a diagnosis for depressive disorder until decades after his period of active duty service. To that end, both examiners fail to consider or address in their opinion whether the Veteran's depressive disorder resulted from his experiences in Vietnam. For these reasons, the previous mental health examinations afforded to the Veteran are incomplete and insufficient for purposes of considering whether service connection is warranted for the Veteran's mental health disorder. Under the circumstances, the Veteran should be scheduled to undergo a new mental health examination to determine whether his mental health disorder is related etiologically to his active duty service. The matters are REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his acquired psychiatric disorder. Records for VA treatment received by the Veteran since December 2020 and any relevant private treatment identified by the Veteran and not already of record should be obtained. If the records are not available, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. Obtain the records for the Veteran's private mental health treatment with Dr. M.A.R.C. If the records are not available, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 3. After the above development is completed, schedule the Veteran for a mental health examination to determine the nature and etiology of any current mental health disorders. The claims file should be made available to the examiner and the examiner should review the claims file in conjunction with the examination. The examiner should conduct all necessary tests and studies and identify all mental health disorders. For each diagnosed disorder, the examiner should provide an explanation as to how the diagnosis fits the diagnostic criteria. For each diagnosed disorder, the examiner should provide an opinion as to whether the disorder at least as likely as not (i.e., at least a 50 percent probability) that: a) the disorder was incurred during the Veteran's active duty service; b) the disorder resulted from an injury, illness, or event that occurred during the Veteran's active duty service, to include the Veteran's experience in Vietnam; c) the disorder resulted from a service-connected disability; and/or d) the disorder was aggravated by a service-connected disability. The examiner should provide a detailed rationale that explains fully all of the reasons for the given opinions. 4. After completion of the above development, the issue remaining on appeal should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Lee 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.