Citation Nr: 23022011 Decision Date: 04/11/23 Archive Date: 04/11/23 DOCKET NO. 15-23 065 DATE: April 11, 2023 ORDER Entitlement to service connection for an unspecified trauma and stressor-related disorder (previously claimed as an acquired psychiatric disorder, depression, and posttraumatic stress disorder (PTSD)), is granted. REMANDED Entitlement to service connection for asbestosis, to include an asbestos-related disability, is remanded. Entitlement to service connection for allergic rhinitis and sinusitis is remanded. Entitlement to service connection for hypertension, to include as secondary to the service-connected unspecified trauma and stressor-related disorder, is remanded. Entitlement to service connection for residuals of a circumcision, to include erectile dysfunction, varicocele/hydrocele, and benign prostatic hypertrophy, is remanded. FINDING OF FACT The Veteran's unspecified trauma and stressor-related disorder is related to the psychological stress, personal assaults, harassment, and racism he experienced during his active military service. CONCLUSION OF LAW The criteria for service connection for unspecified trauma and stressor-related disorder (previously claimed as an acquired psychiatric disorder, depression, and PTSD) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1974 to June 1976. These issues are on appeal from January 2013 and September 2013 rating decisions. In August 2018, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing. The Board most recently remanded this appeal to the Agency of Original Jurisdiction (AOJ) in May 2019. The case has now been returned to the Board. 1. Entitlement to service connection for an unspecified trauma and stressor-related disorder (previously claimed as an acquired psychiatric disorder, depression, and PTSD). The Veteran asserts that his psychiatric disorder is related to the psychological stress, personal assaults, harassment, and racism he experienced during his active military service. In a January 2020 Statement in Support, the Veteran described being called derogatory and racist names by the other sailors while onboard the USS Oriskany. He reported being scared and fearful for his safety. He described being awoken by other sailors during his sleep who started to fight him for no reason and call him names. The Veteran was hit on his face and chest by these sailors. During this incident, the petty officers did not intervene. The Veteran feared for his life and left the ship, causing the ship to leave him in Hawaii. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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. The evidence needed to establish the occurrence of a claimed in-service stressor is typically dependent upon whether the veteran engaged in combat with the enemy, as well as whether the claimed in-service stressor is related to such combat; or, if not, whether there is objective evidence to verify the occurrence of the claimed stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also 38 U.S.C. § 1154(b). Credible supporting evidence is not required if the stressor is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD. 38 C.F.R. § 3.304(f)(3). There are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the veteran's service records which may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). Here, as reflected at the August 2022 VA psychiatric examination, a diagnosis of unspecified trauma and stressor-related disorder was rendered for the Veteran in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), after interviewing the Veteran and reviewing his electronic claims file. Therefore, the first element of service connection is met. Regarding the second element of service connection, the Veteran's psychiatric stressor is based upon a personal assault. In July 2013 statements and at his Board hearing, the Veteran reported an in-service stressor involving personal assaults by fellow servicemembers and racism as he was the only Black male onboard. See Board hearing transcript, pages 4-5. He reported feeling unsafe and threatened onboard. Id. at 5. He felt fearful of the ship's racism and did not sleep well onboard. Id. at 8. He described getting into a fight onboard with the men on the ship. Id. at 12. At his Board hearing, he testified that he and his fellow servicemembers were forced to attend a race relations course because of the racism onboard the USS Oriskany. Id. at 6. The Veteran also testified that his Lieutenant wrote a letter to his mother regarding the incidents onboard. Id. at 14. Both the course and the letter are not contained in the Veteran's personnel records. Upon remand, the AOJ was unable to obtain the human resources records for the USS Oriskany (hull # CV34) from June 1975 to June 1976 in an attempt to corroborate the Veteran's PTSD stressor. However, the Veteran's personnel records do document that he served onboard the USS Oriskany during his active military service. His records also document three incidents when the Veteran was absent without leave (AWOL) during service. Regarding these incidents, the Veteran testified at his hearing that he got off the ship because of racism and he was hoping to be put on a different ship afterwards. See Board hearing transcript, page 6. The personnel records also document substandard performance of duties and discipline for missed movement of ship and for being disrespectful in language toward a superior petty officer. The Veteran was ultimately discharged for misconduct Under Honorable Conditions. These AWOL incidents and disciplinary actions corroborate the Veteran's competent and credible lay statements regarding the harassment, personal assaults, verbal abuse, and racism that the Veteran experienced during service. The Board finds there is credible supporting evidence that the Veteran's in-service psychiatric stressor occurred, and the second element of service connection is established. Regarding the third element of service connection, there is only a probative medical opinion in favor of the claim. In an August 2022 medical opinion, the VA examiner opined that the unspecified trauma and stressor-related disorder is at least as likely as not (50 percent or greater probability) incurred in or caused by the personal assaults and multiple fighting as a result of in-service racism. The examiner reasoned that based on the Veteran's reports, the evidence suggests that the Veteran's mental health condition occurred during military service with markers of repeated AWOLS, as the Veteran did not feel safe on the ship due to the personal assault and the in-service racism. At the August 2022 VA examination, the Veteran described his traumatic in-service stressor as being "jumped by white service members when he was in his bunk" and "[c]onstantly had to fight white service members when on the USS Oriskany." The VA examiner determined that this stressor was related to an in-service personal assault. The examiner reasoned that markers that substantiate the stressor include the Veteran's multiple AWOLs and related Captain's Mast. No medical attention sought and no serious injuries endorsed. There are no negative nexus medical opinions of record. Upon review of the lay and medical evidence of record, the Board finds the evidence supports a finding that the Veteran's unspecified trauma and stressor-related disorder is related to his active military service. Service connection for an unspecified trauma and stressor-related disorder (previously claimed as an acquired psychiatric disorder, depression, and PTSD) is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for asbestosis, to include an asbestos-related disability, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the asbestosis issue. In pertinent part, the Board remanded this issue for the AOJ to make a specific written determination as to whether the Veteran was exposed to asbestos before, during, and/or after his active military service based on the evidence of record. This action was not completed upon remand. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for allergic rhinitis and sinusitis is remanded. The Board has expanded this issue to include allergic rhinitis based on the Veteran's current diagnosis provided at the August 2022 VA examination. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran's allergic rhinitis is related to his active military service, to include the documented complaints in the service treatment records. The August 2022 VA medical opinion does not address the allergic rhinitis diagnosis. Further, the August 2022 opinion that addresses the current sinusitis diagnosis is inadequate under the current caselaw. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found that the proper standard of review for determining whether a claim for VA benefits may be granted is whether the factors are in an "approximate balance," such that a veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance, i.e., nearly equal, and does not require the evidence to be in exact equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). As such, the standard of review utilized by the clinician who conducted the August 2022 VA opinion that found the Veteran's sinusitis to be "less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness" is not in accord with the proper standard of review enunciated in Lynch. Id. Upon remand, an addendum opinion must be obtained. 3. Entitlement to service connection for hypertension, to include as secondary to the service-connected unspecified trauma and stressor-related disorder, is remanded. The Veteran asserts that his high blood pressure is due to the mental stress caused by his acquired psychiatric disorder/PTSD. See August 2018 Correspondence. The Veteran has a current diagnosis of hypertension. See September 2022 VA treatment record. The Veteran is also now service-connected for an unspecified trauma and stressor-related disorder. The Board cannot make a fully-informed decision on the hypertension issue because no VA examiner has opined whether the Veteran's hypertension is proximately due to or aggravated by his service-connected unspecified trauma and stressor-related disorder. Upon remand, an addendum medical opinion must be obtained. 4. Entitlement to service connection for residuals of a circumcision, to include erectile dysfunction, varicocele/hydrocele, and benign prostatic hypertrophy, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the residuals of circumcision issue. In pertinent part, the Board remanded this issue for a medical nexus opinion to be obtained regarding all claimed residuals of the Veteran's circumcision. At the August 2022 VA male reproductive organ examination, the Veteran was diagnosed with erectile dysfunction, varicocele/hydrocele, and benign prostatic hypertrophy. However, the August 2022 VA examiner did not provide a medical opinion regarding whether the varicocele/hydrocele and benign prostatic hypertrophy are related to the Veteran's active military service, to include the in-service circumcision. Further, the erectile dysfunction opinion provided by the August 2022 examiner violates recent caselaw. The standard of review utilized by the clinician who conducted the August 2022 VA opinion that found the Veteran's erectile dysfunction to be "less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness" is not in accord with the proper standard of review enunciated in Lynch. 21 F.4th at 776 (en banc). Another remand is required for an addendum opinion to be obtained. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following actions: 1. The AOJ must make a specific written determination as to whether the Veteran was exposed to asbestos before, during, and/or after his military service. This written determination must be included in the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's currently diagnosed allergic rhinitis and sinusitis. The examiner must review the claims file. The examiner is asked to provide a response to the following: a) Is the allergic rhinitis at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) related to service, including in-service asbestos exposure, in-service exposure to jet fuel, the November 1975 treatment for a cold/chest congestion/cough, and/or the January 1976 treatment for a chest cold? b) Is the sinusitis at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) related to service, including in-service asbestos exposure, in-service exposure to jet fuel, the November 1975 treatment for a cold/chest congestion/cough, and/or the January 1976 treatment for a chest cold? In providing the requested opinions, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disabilities are known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinions. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's currently diagnosed hypertension. The examiner must review the claims file. The examiner is asked to provide a response to the a) Is the hypertension at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) proximately due to the service-connected unspecified trauma and stressor-related disorder (to include any medications prescribed to treat same)? b) Is the hypertension at least as likely as not aggravated by the service-connected unspecified trauma and stressor-related disorder? Provide a rationale to support the opinions. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's currently diagnosed erectile dysfunction, varicocele/hydrocele, and benign prostatic hypertrophy. The examiner must review the claims file. The examiner is asked to provide a response to the following: a) Is the erectile dysfunction at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) related to service, including the in-service circumcision? b) Is the varicocele/hydrocele at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) related to service, including in-service circumcision? c) Is the benign prostatic hypertrophy at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) related to service, including in-service circumcision? Please comment on the effects of his service-connected mental health disorder, to include the effects of anu medication take for same). In providing the requested opinions, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disabilities are known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinions. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Watkins, 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.