Citation Nr: 22040187 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-23 116 DATE: July 13, 2022 REMANDED Entitlement to an initial rating higher than 20 percent for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depression, is remanded. Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for urinary incontinence is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A. Remand for a Duty to Assist Error In June 2021, the Board remanded the matter for additional development, to include sending the Veteran a VA Form 21-4142 so that VA could assist in obtaining records from the Veteran's private medical providers. The record reflects the Veteran did complete the form and sent it to VA, but because the Veteran had written the date of his birth in the section for the date of the signature, the form was considered not signed within one year of the date of processing and the request to process the form therefore was rejected. The AOJ never complied with its duty, however, to inform the Veteran that the form was invalid and that the records were therefore unable to be requested and obtained. 38 C.F.R. § 3.159(e); see 38 U.S.C. § 5103A. Accordingly, the Board must remand the matter to provide the Veteran an opportunity to resubmit the Form 21-4142 with a valid date so that the form may be processed. 38 C.F.R. § 20.904(a). (It is noted that while the Veteran himself submitted in March 2022 records from some of the providers named in the Form 21-4142, the form also named other providers whose records were not included in the Veteran's submission, and therefore the AOJ's error cannot be said to have been harmless.) Because the medical records may be relevant to any of the Veteran's claims on appeal, all of the claims must be remanded pending correction of this error. See generally 38 U.S.C. § 5103A. B. Remand for a New Opinion for Service Connection for an Acquired Psychiatric Disorder While the matter is on remand, the Board will obtain a new opinion regarding the Veteran's claim for an acquired psychiatric disorder. Following the Board's prior remand, an examination was provided in September 2021. The Veteran was diagnosed with adjustment disorder with depressed mood, and he has identified two in-service events which he believes may have caused his condition. First, the Veteran's friend, a helicopter pilot, died in a helicopter accident when there was a problem with the aircraft, and the Veteran felt he could have stopped the aircraft from being allowed to fly if he had declared it not-flight-ready. The event happened in the days leading up to the friend's wedding, so the Veteran also then dealt with his friend's grieving parents and fiancée, who were in town for the wedding. Though the Veteran had previously achieved Sailor of the Month, was awarded 4.0 quarterly marks, and was selected for NESEP, the incident influenced his decision to ultimately leave active duty. The Veteran wrote that "[he] still ha[s] nightmares about letting the aircraft fly." Second, the Veteran has described an incident of military sexual trauma (MST) involving the chaplain aboard the ship in the months leading up to separation. The September 2021 examiner ultimately diagnosed the Veteran with adjustment disorder and opined that the Veteran was currently experiencing depressive symptoms "associated with the loss of his business and frustrations with his adjustment." As to the event in which the Veteran's friend died, the examiner stated that a diagnosis of PTSD was not supported because "[the Veteran's] safety or life was not in danger during this incident." As to the event of MST, the examiner stated that the Veteran met the criteria for a diagnosis of PTSD but "no markers were identified during the evaluation." The Board finds the September 2021 opinion failed to fully address all of the relevant evidence. Regarding the first stressor, the Board finds that the examiner failed to sufficiently explain why the death of the Veteran's friend, even if it did not satisfy the PTSD criterion of danger to the Veteran's safety or life, could not have supported the Veteran's diagnosed adjustment disorder with depression. Though it is acknowledged that the Veteran told the examiner at the time of the examination that he was upset about issues surrounding his business, the Board finds that the examiner attributed the Veteran's adjustment disorder to this cause without sufficiently addressing the Veteran's descriptions of the circumstances of the claimed stressor, including the Veteran's statement that he still has nightmares about the event, as well as the effect on his performance while he was still in service. To this latter point, the Board notes that an in-service performance evaluation in May 1969the date of the friend's deathremarked that the Veteran no longer "fully appl[ied] talents," that his "attitude ha[d] deteriorated," and that his "personal appearance frequently f[ell] below standards." The Board will remand for an opinion that fully considers and discusses this evidence supporting the impact that this event had on the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For this first stressor, the Board also notes that while the Veteran submitted a VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD) in November 2020 detailing the specifics of the event, the record does not reflect that the AOJ ever took steps to help confirm that the stressor occurred. On remand, the Board will direct for appropriate attempts to verify the stressor. 38 U.S.C. § 5103A. Regarding the second stressor, the examiner wrote that the MST "meets [the] criteria for PTSD; however, no markers were documented during the exam." Thus, in the diagnosis section of the examination report, the examiner marked that the Veteran had no diagnosis of PTSD. The existence of a marker within the record, however, relates to whether there is evidence to corroborate that the MST event in fact occurred; but according to the diagnostic criteria for PTSD listed in the examination report, the existence of a marker is not necessary to support a PTSD diagnosis. In turn, the Board finds that the examiner has failed to sufficiently explain why a marker in the record was required to complete the diagnosis of PTSD. Alternatively, the examiner erroneously commingled the issue of whether the MST occurredan issue which is exclusively the Board's to decidewith the issue of whether a diagnosis of PTSD would be supported by the MSTan issue which the examiner was asked to address. In either case, the Board finds an addendum opinion must be obtained to correct the insufficiencies. In the new opinion, the Board will also direct for a more complete explanation of why the MST could not support the diagnosis of adjustment disorder with depression. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). C. Remand for a New Opinion for Service Connection for Hypertension Additionally, the Board will direct for a new opinion to be obtained regarding the Veteran's claim for service connection for hypertension. In compliance with the Board's prior June 2021 decision, an opinion was obtained in October 2021 to address the Veteran's contention that his hypertension may have been caused by his in-service exposure to jet fuels (JP4/JP5) and/or trichloroethylene (TCE). The October 2021 examiner's opinion stated that "[r]eview of the 2018 medical opinion regarding the veteran [sic] diagnosis of hypertension and it [sic] relation to exposure to jet fuels and/or TCE has made clear that after extensive research that there is not an established association with hypertension and exposure to said chemicals." The etiology opinions provided in 2018, however, did not discuss any link between hypertension and exposure to jet fuels and/or TCE; indeed, the absence of such a discussion was the justification for the Board to request an opinion in the first place. Thus, the Board finds the October 2021 opinion is inadequate to the extent it relied on the purported "extensive research" in the 2018 medical opinion "that there is not an established association with hypertension and exposure to" jet fuels and/or TCE. A new opinion will be obtained. Barr, 21 Vet. App. at 311. The matter is REMANDED for the following action: 1. Send the Veteran a VA Form 21-4142 along with a photocopy of the VA Form 21-4142 he submitted in August 2021. Allow sufficient time for the Veteran to complete and return a signed and dated form. 2. Undertake appropriate action to verify the stressor involving the loss of the Veteran's friend in a helicopter accident, as detailed in the Veteran's November 6, 2020 Statement in Support of Claim of PTSD. 3. Then, obtain an addendum opinion regarding the nature and etiology of any acquired psychiatric disorder, to include PTSD and/or diagnosed adjustment disorder with depression. If the clinician believes a new examination would be helpful, schedule one. The clinician must address all of the following: (a)(i) Does the Veteran have a diagnosis of PTSD? (For purposes of rendering the diagnosis, it should be assumed that both the stressors alleged by the Veteran did in fact occur.) Discuss the statement from the September 2021 examiner that the Veteran met the criteria for PTSD with respect to the MST stressor. (a)(ii) If the Veteran has a diagnosis of PTSD, is the stressor in which the Veteran's friend died in a helicopter accident sufficient to support the diagnosis? (b) For any other diagnosed acquired psychiatric disorder, to include adjustment disorder with depression, is the positive and negative evidence at least nearly equal that the condition is due to the Veteran's service? In rendering this opinion, the clinician must consider and discuss the following in-service events: (i) The event in May 1969 in which the Veteran's friend, a helicopter pilot, died when a helicopter with a history of problems had a malfunction, and the Veteran felt he could have stopped the aircraft from being allowed to fly if he had declared it not-flight-ready. Also consider that at the time of the event, the Veteran was also in the company of his friend's parents and fiancée, who were in town for the friend's upcoming wedding. Consider that following this event, though the Veteran had previously reached achievements such as Sailor of the Month, 4.0 quarterly marks, and selection for NESEP, a performance evaluation in May 1969 remarked that the Veteran no longer "fully appl[ied] talents," his "attitude ha[d] deteriorated," and his "personal appearance frequently f[ell] below standards." (ii) The MST event in the last months of the Veteran's service involving a service chaplain (as described in the September 2021 examination report). 4. Obtain an addendum opinion regarding the etiology of the Veteran's hypertension. The clinician must address whether the positive and negative evidence is at least nearly equal that the Veteran's hypertension is due to daily exposure to jet fuels (JP4/JP5) and/or trichloroethylene. 5. After the above development and any other development deemed necessary is completed, readjudicate the Veteran's claims. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.