Citation Nr: 22011024 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 18-48 375 DATE: February 25, 2022 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for essential tremor affecting the upper extremities, claimed as Parkinson's disease, to include as due to in-service exposure to an herbicide agent, is remanded. FINDINGS OF FACT 1. The Veteran served in combat while stationed in the Republic of Vietnam. 2. The Veteran's asserted in-service stressor events are conceded. 3. A diagnosis of PTSD based on conceded in-service stressor events, in accordance with the Diagnostic and Statistical Manual, Fifth Edition (DSM-V), has been offered. CONCLUSION OF LAW The criteria to establish service connection for PTSD are met. 38 U.S.C. §§ 1110, 1111, 1112, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1968 to September 1970. 1. Entitlement to service connection for PTSD Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran asserts that he has PTSD resulting from two in-service incidents that occurred while he was stationed in the Republic of Vietnam: (1) being ordered to shoot a civilian who was "pushing a water buffalo in the red zone;" and (2) being assigned duty involving the storage and transportation of dead bodies. For the reasons discussed below, the Board concludes that the evidence of record supports the Veteran's assertions, and that service connection for PTSD is warranted under the applicable laws. As noted above, the Veteran's service department records reflect that he was stationed in the Republic of Vietnam, and his Military Occupational Specialty (MOS) during this period (light weapons infantry) is congruent with the duties described in the Veteran's in-service stressor events. As the record does not include clear and convincing evidence contrary to his reported stressor events, such events are conceded; service treatment records that are dated in March 1969 also reflect a diagnosis of anxiety reaction. As such, the Board concludes that element (2) to establish service connection has been met. Armed with the above finding, the crux of the Veteran's appeal concerns whether the Veteran incurred PTSD due to these in-service stressor events, congruent with elements (1) and (3) to establish direct service connection. To address the points outlined above, the Veteran was provided a VA psychiatric examination in February 2018 in connection with his claim. After a review of the claims file and an interview with the Veteran, the February 2019 VA examiner stated that the Veteran's psychiatric symptoms did not meet the criteria of PTSD or any other acquired psychiatric disability within the DSM-V. While the VA examination report reflects that the Veteran's claimed psychiatric symptoms were noted, the examiner stated that such did not meet any of the criteria (A I) for a diagnosis of PTSD. Although the Board notes the February 2018 VA examiner's conclusions, such do not appear to be congruent with the facts reflected in the Veteran's file. Specifically, despite the Veteran's reports of being in-service exposure to many dead bodies stored in a warehouse in the Republic of Vietnam, the February 2018 VA examiner stated that Criterion A for a PTSD diagnosis (exposure to actual or threatened death) had not been demonstrated. The Court has firmly held that medical opinions reliant on inaccurate factual premises are devoid of probative weight. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In light of above, the Board concludes that the findings of the February 2018 VA examiner are inadequate for the purpose of readjudicating the Veteran's appeal; however, this is not fatal to the Veteran's appeal. Critically, VA treatment records reflect that the Veteran initially sought VA psychiatric treatment in February 2017, and after conducting an interview with the Veteran, a diagnosis of chronic PTSD meeting the criteria of the DSM-Veteran was rendered based on the Veteran's reported symptoms and in-service stressor events. The Veteran subsequently participated in individual and group therapy sessions, and the PTSD diagnosis was perpetuated through the present, to include by several VA psychologists and psychiatrists. The Board finds that the evidence within the Veteran's VA treatment records, recounted above, is highly probative of the matter forming the crux of the Veteran's appeal. Further, the continued PTSD diagnosis was based on the Veteran's reported symptoms and in-service stressor events, which are congruent with the facts reflected in the Veteran's VA file. Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the Board concludes that the most probative evidence reflects that the Veteran's PTSD is due to his confirmed in-service stressors, and thus, service connection for a psychiatric disability, to include PTSD, is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304. REASONS FOR REMAND 1. Entitlement to service connection for essential tremor affecting the upper extremities, claimed as Parkinson's disease, to include as due to in-service exposure to an herbicide agent At the October 2021 Board hearing, the Veteran stated that Parkinson's disease was initially diagnosed at a VA facility in January 2018, and he asserts that service connection for this disability is warranted on a presumptive basis due to his presumed in-service exposure to an herbicide agent while stationed in the Republic of Vietnam. While further delay is regrettable, for the reasons expressed below, the Board concludes that remand is necessary to ensure that VA fulfills its duty to assist the Veteran in substantiating his appeal. Initially, the Board concedes that the Veteran was presumedly exposed to an herbicide agent while stationed in the Republic of Vietnam, and Parkinson's disease and parkinsonism are among the diseases which VA presumes to be due to in-service herbicide exposure. Notwithstanding the above, contrary to the Veteran's hearing testimony, VA treatment records are devoid of a diagnosis of Parkinson's disease or parkinsonism. Specifically, the file reflects that the Veteran initially sought treatment for tremors affecting the hands in February 2018. Critically, the VA clinician provided a differential diagnosis of "parkinsonism[-]like symptoms," and a neurological consultation was scheduled. After further examination and testing, an essential tremor affecting the upper extremities was diagnosed, and the Veteran was prescribed medication for symptom management. In sum, the current evidence of record is unclear regarding the nature of the Veteran's disability, which may be dispositive in view of the VA presumptions concerning in-service herbicide exposure and the diseases known to be associated with such. In view of the evidence recounted above, the Board concludes that the VA's duty to assist the Veteran by providing him a VA examination to determine the nature and etiology of his claimed disability has been triggered. Lastly, to ensure that the examining physician is fully apprised of the Veteran's complete and contemporaneous medical picture, the AOJ must also obtain and associate with the file all updated records of VA and private treatment. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA and private treatment, with the Veteran's assistance regarding the latter. 2. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate examination to determine the nature and etiology of the disability subject to this remand. The Veteran's complete VA file must be made available to, and reviewed by, the VA examiner prior to completion of the examination. All tests deemed necessary to address the below questions must be completed. Thereafter, the examiner is asked to address the following: a. Identify any disability during the appeal period (since September 2017) manifested by tremors affecting the hands. *In addressing the above, the VA examiner is asked to discuss any testing which would definitively conclude whether the Veteran's symptoms are due to an essential tremor, Parkinson's disease, and parkinsonism. b. For any disability other than Parkinson's disease or parkinsonism identified in part (a) provide an opinion concerning whether such is at least as likely as not proximately due to or the result of any incident of the Veteran's active duty, to include his presumed in-service exposure to an herbicide agent. *In addressing the above, the examiner is reminded that a disability's exclusion from the list of diseases presumed by VA to be associated with herbicide exposure is not dispositive in this matter. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.