Citation Nr: 21042821 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 19-34 717 DATE: July 13, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) with insomnia, depression, and anxiety is granted. REMANDED Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), hiatal hernia, and diverticulitis, and to include as due to in-service exposure to herbicide agents, is remanded. Entitlement to service connection for basal cell carcinoma, squamous cell carcinoma, and seborrheic keratosis, to include as due to in-service exposure to herbicide agents, is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence of record shows that the Veteran has a diagnosis of PTSD related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD with insomnia, depression, and anxiety is met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1965 to May 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2020 decision, the Board denied the Veteran's claims for service connection for GERD and hiatal hernia, an acquired psychiatric disorder, including PTSD, and for basal cell carcinoma, squamous cell carcinoma, and seborrheic keratosis. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted the parties' (the Veteran and the Secretary of VA) Joint Motion for Partial Remand (JMPR), which vacated the June 2020 Board decision insofar as it denied the Veteran's service connection claims and remanded the appeal to the Board for further action consistent with the JMPR. In the JMPR, the parties agreed that the Board erred by failing to ensure that VA satisfied its duty to assist as there appeared to be outstanding VA treatment records and psychiatric treatment records missing from the record. As to the Veteran's claim for service connection for a gastrointestinal disorder, the parties also agreed that the Board failed to address evidence showing that the Veteran had been diagnosed with diverticulitis. As an initial matter, the June 2020 Board decision also remanded the issues of entitlement to service connection for hypertension and entitlement to service connection for peripheral neuropathy of the right lower extremity. Thereafter, following issuance of the August 2020 Supplemental Statement of the Case (SSOC), the Veteran elected to have his hypertension and peripheral neuropathy of the right lower extremity claims evaluated under the Appeals Modernization Act (AMA) framework. See August 2020 VA Form 20-0996, Decision Review Request: Higher-Level Review. As such, those claims have been withdrawn from the legacy (pre-AMA) appeal process by the Veteran and are not before the Board in this decision. The Board also notes that given the Veteran's various gastrointestinal disorders of record and his initial claim of service connection for a gastrointestinal condition, see March 2018 VA 21-526EZ, the Board has recharacterized the Veteran's claim as entitlement to service connection for a gastrointestinal disorder, to include GERD, hiatal hernia, and diverticulitis, and to include as due to in-service exposure to herbicide agents. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Finally, although additional and pertinent VA treatment records were added to the claims file after issuance of the last Statement of the Case (SOC) in October 2019, there is no prejudice to the Veteran as his claims are either granted in full or remanded to the Agency of Original Jurisdiction (AOJ) for appropriate development. Entitlement to service connection for PTSD with insomnia, depression, and anxiety Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(a). To that end, service connection may also be granted for any disease diagnosed after discharge from 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). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition to the general requirements for service connection, establishing service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f); 4.125. If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "Fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the present case, the Veteran claims that he has a psychiatric disorder related to incidents of service. Specifically, the Veteran asserts that he was exposed to frequent mortar and rocket attacks while stationed at an airbase in the Republic of Vietnam and that he also saw several dead bodies while serving there. See April 2021 Statement in Support of Claim. He explains that he coped with his fear by excessively drinking and kept to himself. See id. Since returning from Vietnam and since his service, he reports experiencing psychiatric symptoms including flashbacks, insomnia, hypervigilance, anger, depression, and anxiety. See id. He further explains that he did not know these emotions were related to PTSD because it was not something discussed at the time of his discharge from service. See id. The Board finds, after careful review of the relevant evidence and resolving all reasonable doubt in the Veteran's favor, that service connection is warranted for PTSD with insomnia, depression, and anxiety. In this regard, the probative medical evidence of record indicates that the Veteran has a current diagnosis of PTSD related to his service. First, review of the Veteran's service treatment records (STRs) do not show any treatment or diagnoses related to a psychiatric disorder, to include PTSD. Nevertheless, an in-service diagnosis is not required to establish service connection for PTSD. See 38 C.F.R. § 3.304(f). Additionally, service personnel records reflect that the Veteran requested his elimination from an undergraduate pilot training program because of a growing feeling of apprehension. See January 1966 Request. His service personnel records also confirm that he served in the Republic of Vietnam, during the Vietnam War era, from March 1967 to March 1968. Given the above, the Board finds that the Veteran's claimed in-service stressor is consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a). Additionally, the Veteran has consistently reported the same stressor, related to fear of hostile military activity while serving in the Republic of Vietnam, and the Board finds no reason to doubt the veracity of the Veteran's claimed stressor. As such, the Board finds that the Veteran's lay statements regarding his claimed stressor are credible and substantiated by the evidence of record. Next, the evidence establishes a link between the Veteran's current psychiatric symptoms and his claimed in-service events. Post-service VA treatment records and private psychological examinations reflect various mental health diagnosis for the Veteran including PTSD, insomnia, unspecified depressive disorder, and unspecified anxiety disorder. See e.g., May 2020 and October 2020 VA mental health treatment notes. Moreover, VA mental health practitioners in treatment records from 2020 to 2021 have at various times diagnosed the Veteran with PTSD in the context of his service in the Republic of Vietnam. Specifically, an August 2020 VA mental health treatment record reflects that a VA mental health professional, treating the Veteran with individual psychotherapy, diagnosed the Veteran with PTSD after treating the Veteran over many sessions where the Veteran had relayed his current psychiatric symptoms in relation to his experience in Vietnam and the current political climate. Similarly, a VA treating psychiatrist also assessed the Veteran with PTSD after undergoing mental health assessments with the Veteran where he explained stressors related to his service in Vietnam. See September 2020 VA mental health note. The Board finds that the VA mental health professionals' notations of psychiatric symptoms relating to the same in-service events support that the Veteran's current psychiatric disability is related to service. Significantly, the Veteran also submitted private opinions reflecting a diagnosis of PTSD and linking that diagnosis to his service. For example, in an October 2018 psychological consultation, a private psychologist diagnosed the Veteran with PTSD, under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria, related to the trauma the Veteran experienced in service. In reaching his conclusion, the private psychologist conducted a clinical interview of the Veteran and noted the Veteran's reports that the base he was stationed at in Vietnam was frequently subjected to mortar and rocket fire and that he saw deceased bodies stacked on top of each other while serving in Vietnam. The private psychologist found that these incidents were sufficient and consistent with the conditions necessary to produce PTSD and that the Veteran's symptoms since his discharge from service, including insomnia, hypervigilance, hyperarousal, anxiety, and obsessive compulsive disorder, were consistent with PTSD. The psychologist also administered a Minnesota Multiphasic Personality Inventory (MMP1-2) test and noted that the results were valid and did not show that an overt attempt was made to either deny or exaggerate psychological symptoms. Thereafter, in an April 2021 private psychological consultation, another private psychologist, after reviewing the Veteran's claims file and interviewing the Veteran, also diagnosed the Veteran with PTSD under the DSM-5 and opined that it is as likely as not that the Veteran's PTSD is due to his military service and related to the fear of hostile military or terroristic activities. The private psychologist documented the Veteran's in-service stressor, including exposure to attacks in Vietnam, detailed the Veteran's psychiatric symptomatology, and explained that the Veteran's self-report was consistent with the available medical record. The private psychologist also addressed the other medical evidence of record indicating that the Veteran had a diagnosis of PTSD. The Board finds the October 2018 and April 2021 private opinions probative evidence in support of the Veteran's claim as the private medical professionals considered the Veteran's lay statements and assessed his current psychiatric symptoms. Additionally, the private opinions serve to link the Veteran's PTSD to service as the opinions reflect full consideration of the Veteran's symptoms and in-service events. Therefore, the Board will accept the above PTSD diagnosis rendered by both VA mental health treatment practitioners and private psychologists as valid because they described the reasons for their conclusions and discussed the Veteran's underlying PTSD symptomatology. The Board acknowledges that the October 2018 VA examiner found that the Veteran did not have a diagnosis of PTSD or any other psychiatric disorder under the DSM-5 that is related to service, in part, due to perceived reliability issues with the Veteran. Specifically, the VA examiner explained that the Veteran did not have a lifetime history of diagnosis or treatment for PTSD in the 48 plus years since his discharge from service and that the only history of diagnosis of PTSD was in the past year by private party providers who specialize in providing single visit disability examinations for Veteran's filing claims with VA. The VA examiner also cited to medical literature noting that delayed onset PTSD is rare to non-existent and that the Veteran was administered an objective screening to assess for malingering, which indicated a statistically significant likelihood of misrepresentation of symptoms. Although this VA opinion is provided some probative weight, this negative opinion is outweighed by all the positive evidence discussed above. Moreover, the April 2021 private psychologist, in rendering his positive nexus opinion, discussed inadequacies with the October 2018 VA examiner's finding that the Veteran did not have PTSD and detailed problems with the VA examiner's rationale. For example, the April 2021 psychologist noted that although the VA examiner explained that the Veteran had no treatment or diagnosis of PTSD for decades after his service in Vietnam, the absence of care is not evidence against the presence of a diagnosable mental illness and that the Veteran, in fact, reported a long history of avoiding and discussing emotional issues especially related to trauma because he worried about stigma and shame both personally and professionally, which contributed to the absence of treatment between military separation and the onset of care around the last five years. The April 2021 private psychologist further explained that some of the medical treatment records document that the Veteran's symptoms, which had been present at a relatively functional baseline, were exacerbated by relatively recent political matters, which the Veteran linked back to Vietnam. Additionally, the April 2021 private psychologist discussed deficiencies with the October 2018 VA examiner's conclusion and rationale that the Veteran was malingering. Finally, the April 2021 VA psychologist noted that although the October 2018 VA examiner made definitive assertions about delayed onset PTSD, the private psychologist found, that in this case, the not uncommon pattern of having kept symptom and impairment severity in check while employed or not exposed to excessive stress or triggers only to be exacerbated after retirement or during tense political circumstances, which for the Veteran were reminiscent of trigger of the political tension during his service, was present with the Veteran. As such, the Board assigns more probative weight to the April 2021 private opinion than the October 2018 VA opinion of record because the April 2021 opinion provides clear conclusions with supporting data, is consistent with the VA mental health treatment records, includes rationale based on all the evidence of record, and explains deficiencies with the only negative nexus opinion of record. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here, the most probative medical evidence weighs in favor of a finding that the Veteran has a PTSD diagnosis in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-5). In light of the above and after resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise with respect to whether the Veteran has a diagnosis of PTSD related to service. In this regard, multiple VA treatment records and private medical opinions reflect that the Veteran has PTSD as related to his claimed in-service stressor. As noted above, the Board finds this is probative evidence in support of the Veteran's claim and lends significant credibility to the Veteran's assertions of claimed in-service stressors. Therefore, service connection for PTSD is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 3.304(f); see also Gilbert, 1 Vet. App. at 53. The Board has also considered whether the Veteran's PTSD claim raised the issue of whether service connection is warranted for any other acquired psychiatric disorder in addition to PTSD. See Clemons, 23 Vet. App. at 5 (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In this regard, VA mental health treatment records dated from 2019 to 2021 show the Veteran has depression, insomnia, and anxiety as secondary to or a component of his now service-connected PTSD. See 38 C.F.R. § 3.310(a). Some of these VA mental health treatment records also attribute his psychiatric symptoms to post-service factors. See April 2021 VA treatment record (reflecting an assessment of PTSD as well as depression due to a general medical condition (cardiac plus multiple other health issues)). Regardless, when it is not possible to separate the effects of a service-connected condition from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board will attribute the Veteran's insomnia, depression, and anxiety to his service-connected PTSD. See also April 2021 private psychologist opinion (noting the Veteran's PTSD symptoms included depressed mood, anxiety, and chronic sleep impairment). In any event, the present decision is considered a full grant of the benefit sought by the Veteran for his acquired psychiatric disorder claim, to include PTSD. In granting service connection for PTSD with insomnia, depression, and anxiety, the AOJ should assign a disability rating or ratings that encompass the symptoms of these disorders. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009) (two defined diagnoses constitute the same disability for purposes of 38 C.F.R. § 4.14 if they have overlapping symptomatology, but bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability). REASONS FOR REMAND 1. Entitlement to service connection for a gastrointestinal disorder, to include GERD, hiatal hernia, and diverticulitis, and to include as due to in-service exposure to herbicide agents The Veteran contends that he has a gastrointestinal disorder that is related to service. Although the Veteran underwent VA examinations in June 2018 to assess his current gastrointestinal disorders, the VA examiner did not diagnose or address that the Veteran had been diagnosed with diverticulitis as shown in his medical treatment records. See June 2018 intestinal conditions and esophageal conditions VA examinations. Since these examinations, the Veteran has also submitted private treatment records reflecting that he may have additional gastrointestinal disorders, including irritable bowel syndrome (IBS). See August 2016 private treatment record. As such, the Board finds that a remand is necessary to obtain a VA examination and opinion that addresses all the Veteran's symptoms and pertinent diagnoses related to his claim in order to accurately decide his service connection claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, although the June 2018 VA examiner provided a negative nexus opinion regarding the Veteran's GERD and hiatal hernia, the examiner did not address whether such disorders are related to the Veteran's conceded in-service herbicide exposure. On remand, the VA examiner should also address whether the Veteran's identified gastrointestinal disorders are related to his in-service herbicide exposure. Finally, the evidence reflects that the Veteran's gastrointestinal problems may be secondary to his now service-connected psychiatric disorder. In this regard, a January 2016 private treatment record reflects that the Veteran had epigastric abdominal pain and that anxiety may be a factor. Accordingly, on remand, the VA examiner should also address whether any identified diagnoses are caused or aggravated by his service-connected PTSD. 2. Entitlement to service connection for basal cell carcinoma, squamous cell carcinoma, and seborrheic keratosis, to include as due to in-service exposure to herbicide agents To date, the Veteran has not been afforded a VA examination to address the nature and origin of his claimed skin cancer/skin disorder, to include whether such is related to exposure to herbicides. Therefore, the Board finds that a remand is warranted to afford the Veteran a VA examination related to this claim as the evidence reflects the Veteran has a current disorder and in-service exposure to herbicides is conceded. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (stating that "[t]his is a low threshold" for meeting the requirement to trigger VA's duty to assist to provide an examination) The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated June 2021. 2. Provide the Veteran another opportunity to identify and/or submit any outstanding private treatment records relevant to his claims. The evidence reflects that the Veteran receives treatment from a private psychologist and psychiatrist. After securing the necessary releases, attempt to obtain and associate any identified treatment records with the claims file. If any identified private treatment records require a fee, notify the Veteran of such, to include that records from Dr. J.L. of CCMH and from Dr. G.G. require a fee, and that he must submit such records to VA if he wishes them to be included in the claims file. Additionally, notify the Veteran that although he reported treatment from Dr. L.K. from January 1980 to present, see September 2020 VA 21-4142, Authorization for Release of Information, the private treatment records obtained in the claims file associated with such treatment only reflect treatment from 2008. 3. Then, schedule the Veteran for a VA examination with an appropriate medical professional to address his claim for service connection for a gastrointestinal disorder, to include GERD, hiatal hernia, and diverticulitis, and to include as due to in-service exposure to herbicide agents. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated tests and studies should be performed. The examiner is asked to respond to the following: (a) Identify all gastrointestinal diagnoses/disorders present during the appeal period, even if such diagnoses are currently asymptomatic or resolved during the pendency of the appeal. The examiner must consider and address the evidence showing the Veteran has diagnoses of GERD, diverticulitis, hiatal hernia, IBS, and colon polyps. (b) For each identified disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such had an onset in service or is otherwise related to service, to include the 1967 and 1968 in-service treatment for gastrointestinal problems, including diarrhea, nervous bowel, and some mild acute enteritis, and/or the Veteran's exposure to herbicide agents. In providing the above opinion, the examiner should consider and address as appropriate (1) the 1967 and 1968 STRs reflecting that the Veteran was treated for diarrhea, cramps, nervous bowels and indigestion, and some mild acute enteritis; and (2) the July 2018 private gastroenterology consultation reflecting that the Veteran had been on daily Metamucil therapy for the past 25 years. The examiner is advised that in-service exposure to herbicide agents is conceded in this case. The mere fact that a legal presumption of service connection has not been established for a particular disorder based on herbicide exposure is not dispositive of the question of a nexus to service. Consideration must still be given to the in-service exposure. (c) For each identified disorder, also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such is (1) caused by or (2) aggravated by his service-connected PTSD with insomnia, depression, and anxiety. In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's PTSD did not cause the Veteran's claimed disability, the examiner should still address whether his PTSD could have aggravated his disability regardless of permanence. If aggravation is found, the examiner should quantify the degree of aggravation, if possible. The examiner should also consider all pertinent lay assertions as to the onset, nature, and continuity of symptoms. The examiner is advised that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide a complete rationale for all opinions. 4. Then, schedule the Veteran for a VA examination with an appropriate medical professional to address his claim for service connection for basal cell carcinoma, squamous cell carcinoma, and seborrheic keratosis, to include as due to in-service exposure to herbicide agents. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated tests and studies should be performed. The examiner is asked to respond to the following: (a) Identify all currently diagnosed skin disorders present during the appeal period as related to the Veteran's claim for service connection for basal cell carcinoma, squamous cell carcinoma, and seborrheic keratosis, even if such diagnoses are currently asymptomatic or resolved during the pendency of the appeal. (b) For each identified disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such had its onset in service or is otherwise related to service, to include as due to herbicide exposure. The examiner is advised that in-service exposure to herbicide agents is conceded in this case. The mere fact that a legal presumption of service connection has not been established for a particular disorder based on herbicide exposure is not dispositive of the question of a nexus to service. Consideration must still be given to the in-service exposure. The examiner should provide a complete rationale for all opinions. A discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. Emily Tamlyn Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.