Citation Nr: 23005331 Decision Date: 01/27/23 Archive Date: 01/27/23 DOCKET NO. 10-34 831 DATE: January 27, 2023 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. This issue is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (2022 PACT Act). REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran was diagnosed with COPD. 3. Pursuant to the PACT Act, the Veteran's COPD is presumed to have resulted from in-service exposure to Persian Gulf environmental hazards during his service in the Southwest Asia theater of operations during the Persian Gulf War. CONCLUSION OF LAW The criteria for service connection for COPD, pursuant to the 2022 PACT Act, have been met. 38 U.S.C. §§ 1110, 1131, 1117, 1119, 5107; Pub. L. 117-168; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1976 to October 1980 and from February 1983 to February 1999. This case is before the Board of Veterans' Appeals (Board) on appeal from September 2009 and December 2013 rating decisions by Department of Veterans Affairs (VA) Regional Offices (RO). These matters were previously remanded for additional development in an April 2014 Board decision. The Veteran died in April 2016, and the appellant is his surviving spouse. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 19.55. In this case, in a May 2014 written statement, the Veteran's attorney of record withdrew his claim for a disability rating in excess of 10 percent for hypertension, and a claim for a disability rating in excess of 20 percent for lumbar strain. As the appellant has withdrawn these specific issues, there remain no allegations of errors of fact or law for appellate consideration as it pertains to these two issues. Accordingly, the Board does not have jurisdiction to review these issues, and the claims for increased ratings for hypertension and lumbar strain are considered withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. In his VA Form 9, substantive appeal, the Veteran requested a travel board hearing for his claim for service connection for COPD. See August 2010 VA Form 9. After the Veteran's death, the appellant was notified that a Board hearing had been requested in the appeal. The appellant was instructed to confirm her request for a hearing by returning the enclosed form within thirty days. She was informed that if she did not respond within thirty days, the Board would assume that she did not wish to have a hearing. See November 2022 letter to appellant. The appellant did not respond to the hearing clarification letter, and therefore, the Board will consider the hearing request withdrawn. Entitlement to service connection for COPD A "Persian Gulf Veteran" is one who served in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e). The United States Congress has defined the Persian Gulf War as beginning on August 2, 1990, the date that Iraq invaded the country of Kuwait, through a date to be prescribed by Presidential proclamation of law. 38 C.F.R. § 3.2(i). On August 10, 2022, Congress enacted the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). Pub. L. 117-168. In relevant part, the PACT Act created a presumption of service connection for certain enumerated diseases, including COPD, manifesting in Persian Gulf War Veterans. See Honoring our PACT Act of 2022, sec. 406, §1120. Under the presumption, COPD manifesting in a Persian Gulf War Veteran is considered to have been incurred in or aggravated by his active service, even where there is no record of evidence of the disease during service. See id. In this case, the Veteran is considered a "Persian Gulf veteran" because he served on active duty in the Southwest Asia theater of operations during the Persian Gulf War. See DD Form 214. Therefore, he is presumed exposed to Persian Gulf environmental hazards during this time. Further, a diagnosis of COPD has been confirmed. See April 2015 VA examination. The Board notes that the persuasive evidence of record is against a finding of direct service connection. In an April 2015 VA opinion, the examiner opined that the Veteran's COPD was not caused by or related to his service, to include asbestos exposure. He explained that the current exam and x-ray did not show findings of asbestosis in the lungs. Further, the examiner reasoned that the Veteran's COPD was caused by his chronic twenty-one-year history of smoking more than one pack per day. See April 2015 VA opinion. As such, because the Veteran is a Persian Gulf Veteran who has a diagnosis of COPD; his COPD is presumed to have been incurred during his active service in the Southwest Asia theater of operations. Accordingly, the claim for service connection for COPD is granted on a presumptive basis under the 2022 PACT Act. 38 U.S.C. §§ 1110, 1117, 1119, 5107; Pub. L. 117-168; 38 C.F.R. §§ 3.102, 3.303, 3.317. Other theories of potential entitlement are addressed in the remand below. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include an anxiety disorder, is remanded. The appellant contends that the Veteran's currently diagnosed acquired psychiatric disorder began during his active duty and is related to in-service traumatic events. The Veteran described witnessing a helicopter crash into the sea while serving aboard the USS Macdonough. He reported that he was part of a crew from his ship that rescued three of the four crewmen from the downed helicopter. The Veteran reported that he witnessed one man drown as he was strapped in on his stomach and could not get out. See April 2015 statement in support of claim. He also described an incident where a boat carrying Haitians capsized and noted that he was part of the recovery mission which included placing young women and children in body bags. See April 2015 VA 21-4138, statement in support of claim. The Veteran's DD Form 214 reflects that he received a Combat Action Ribbon. 38 U.S.C. § 1154(b), known as "the combat presumption," stands for the proposition that, generally, VA will accept as credible a combat veteran's report of an in-service event as long as the report is consistent with the circumstances, conditions, or hardships of such service. Accordingly, the Board finds the Veteran's statement regarding his in-service traumatic events to be credible. See 38 U.S.C. § 1154(b). Further, the Joint Service Records Research Center (JSRRC) verified the helicopter crash described by the Veteran, noting that deck logs dated in February 1991 document the incident. See March 2016 VA 21-0961. Significantly, at separation from active-duty service, the Veteran reported that he was currently experiencing or had experienced depression or excessive worry. See January 1999 Report of Medical History. In an October 2013 opinion, the examiner diagnosed the Veteran with generalized anxiety disorder, noting that his self-report and information in his VA mental health treatment notes indicate that he had a long history of pervasive anxiety with features of depression. The examiner noted that the Veteran reported that while in the military, he did not have any type of mental health treatment or identify concerns about anxiety and/or depression while in service. Therefore, the examiner found that there was no compelling evidence that his generalized anxiety disorder was linked directly to his military service. In a December 2018 VA opinion, the examiner stated that the Veteran's unspecified anxiety disorder was not caused by or a result of an in-service stressor event. The examiner reasoned that the only indication of mental health issues in his service treatment records is the notation of "periodic worry" on his exit examination. He explained that the symptom of periodic worry in isolation would not meet the criteria for a mental health disorder diagnosis. In this case, the 2013 VA examiner's opinion is based on the inaccurate factual premise that the Veteran did not identify concerns about anxiety and depression in service. As noted above, at separation from service, the Veteran reported experiencing depression and excessive worry. See January 1999 report of medical history. As such, the Board finds the 2013 VA opinion inadequate for adjudication purposes. Additionally, the 2018 VA examiner's negative nexus opinion relied solely on the absence of documented treatment or diagnosis of a mental health disorder in service to support his conclusion. Further, although the 2018 VA examiner pointed out the Veteran's in-service complaint of excessive worry, he explained that excessive worry in isolation, does not meet the criteria for a mental health disorder diagnosis. However, the pertinent question is not whether excessive worry constitutes a psychiatric diagnosis, but rather, whether the in-service notation of excessive worry is a symptom of, and/or a part of the same disease process as, the Veteran's later diagnosed anxiety disorder. This issue was not addressed by the 2018 VA examiner. In sum, the Veteran described symptoms of anxiety during service and also has a conceded in-service traumatic event. Thus, the Board finds that an additional medical opinion should be obtained to address this in-service notation of excessive worry and conceded in-service traumatic events, that includes reasoning beyond simply noting that there was no mental health treatment or diagnosis in service. On remand, the examiner should discuss the likelihood that the in-service notation of excessive worry represents a symptom of, or is part of the same disease process as, his later diagnosed anxiety disorder. The matters are REMANDED for the following actions: Obtain an addendum opinion from an appropriate provider to determine the nature and etiology of the Veteran's acquired psychiatric disorder, to include an anxiety disorder. The examiner is informed that the Veteran's in-service traumatic events are conceded. Following a complete review of the evidence of record and with consideration of all lay statements, the medical professional is requested to provide the following opinions: (a) Is the Veteran's acquired psychiatric disorder, to include an anxiety disorder, related to his active-duty service, to include the traumatic in-service events described by the Veteran? Why or why not? (b) Is the Veteran's acquired psychiatric disorder, to include an anxiety disorder, related to his active-duty service, to include the in-service notation of depression and excessive worry? Why or why not? See January 1999 Report of Medical History. If the examiner concludes that the Veteran's current acquired psychiatric disorder is not related to his service, he must provide additional reasoning for his conclusion beyond noting an absence of in-service and/or post-service documented treatment related to mental health. The examiner is informed that a positive opinion indicating a nexus to service does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus to service, the examiner should make a determination favorable to the Veteran. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.