Citation Nr: A24028362 Decision Date: 05/31/24 Archive Date: 05/31/24 DOCKET NO. 240122-411590 DATE: May 31, 2024 ORDER Service connection for anxiety is granted. Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for a lumbosacral strain, degenerative disc disease (DDD), and degenerative arthritis ("back disability") is granted. Service connection for headaches is granted. Service connection for a craniopharyngioma as due to exposure to toxins is granted. Service connection for obstructive sleep apnea (OSA) is granted. FINDINGS OF FACT 1. The evidence shows current diagnoses of anxiety and PTSD; there were corroborated psychological events ("stressors") during service; the current anxiety and PTSD are etiologically related to in-service psychological events. 2. The evidence shows current diagnoses of a lumbosacral strain, DDD, and degenerative arthritis; there was a back injury and multiple back "events" during service; the current back diagnoses are etiologically related to service. 3. The evidence shows a current diagnosis of headaches; the current headaches had onset during service and are etiologically related to service. 4. The evidence shows current diagnoses of craniopharyngioma and OSA; the Veteran was exposed to fuels, solvents, and other toxins during service; the current craniopharyngioma and OSA are etiologically related to exposure to toxins during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for anxiety are met. 38?U.S.C. §§ 1110, 5103, 5103A, 5107; 38?C.F.R. §§?3.102, 3.159, 3.303. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD are met. 38?U.S.C. §§ 1110, 5103A, 5107; 38?C.F.R. §§?3.102, 3.159, 3.303, 3.304. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for the back disability are met. 38?U.S.C. §§ 1110, 5103, 5103A, 5107; 38?C.F.R. §§?3.102, 3.159, 3.303. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for headaches are met. 38?U.S.C. §§ 1110, 5103, 5103A, 5107; 38?C.F.R. §§?3.102, 3.159, 3.303. 5. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for craniopharyngioma are met. 38?U.S.C. §§ 1110, 5103, 5103A, 5107; 38?C.F.R. §§?3.102, 3.159, 3.303. 6. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for OSA are met. 38?U.S.C. §§ 1110, 5103, 5103A, 5107; 38?C.F.R. §§?3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 1993 to September 1995. These matters come to the Board of Veterans' Appeals (Board) on appeal from June and July 2023 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA) or modernized review system, created a new framework of review for veterans who disagree with VA's decision on their claim. In the January 2024 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence submission docket. In this AMA case, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal (June 16 and July 6, 2023). 38?C.F.R. §?20.303. ?The Board cannot consider evidence submitted during the period after the AOJ issued the decisions on appeal or evidence submitted more than 90 days after submission of the January 2024 VA Form 10182. 38?C.F.R. §?20.303. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider for the issues granted in this decision, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. This claim is advanced on the Board's docket due to terminal illness of the Veteran. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(b). SERVICE CONNECTION LEGAL AUTHORITY Service connection may be granted for a disability resulting from disease or injury incurred in or?aggravated?by active service.? 38?U.S.C. §§?1110, 1131;?38?C.F.R. §?3.303(a).? Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.? 38?C.F.R. §?3.303(d).? Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circum-stances, lay evidence of in service incurrence or?aggravation?of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability.? Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with?38?C.F.R. §?4.125(a)), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s).? See?38?C.F.R. §?3.304(f).? In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence.? Hayes v. Brown,?5?Vet. App.?60, 66?(1993); see also?38?U.S.C. §?1154(a);?38?C.F.R. §?3.304(f).? The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran engaged in combat with the enemy.? If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38?U.S.C. §?1154(b);?38?C.F.R. §?3.304(f)(2).? No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service."? Id. ?? If VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor.? Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements.? See Moreau v. Brown,?9?Vet. App.?389, 394?(1996).? 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)(3).? If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence.? Cohen v. Brown,?10?Vet. App.?128?(1997); Moreau v. Brown,?9?Vet. App.?389?(1996); Dizoglio v. Brown,?9?Vet. App.?163?(1996).? Service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors.? Doran v. Brown,?6?Vet. App.?283, 289?(1994).? The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts.? Wood v. Derwinski,?1?Vet. App.?190?(1991), aff'd on reconsideration,?1?Vet. App.?406?(1991).? Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators.? 1. Service connection for anxiety is granted. 2. Service connection for PTSD is granted. The Veteran appeals for service connection for anxiety, diagnosed by a private medical provider in November 2023, and PTSD, diagnosed by VA in June 2022. See January 2024 substantive appeal to the Board. The Veteran contends that the current anxiety and PTSD are due to stressful events during service. In March 2013 correspondence to VA, the Veteran reported witnessing a roommate die by a gunshot wound during service. A November 2023 private treatment record, submitted in January 2024, shows the Veteran reported being physically assaulted by a sergeant continually from 1994 to 1995 such as being choked, slammed on a concrete floor, hit in the head and back with a shovel, and the sergeant sitting on the Veteran's chest until the Veteran passed out. The Veteran reported that the sergeant threatened to hurt him if he did not do what the sergeant said. The Veteran also reported that he witnessed the death of a roommate via a self-inflicted gunshot (unsure if accidental or via suicide) during training. A November 2023 private Disability Benefits Questionnaire (DBQ), submitted in January 2024, shows the Veteran reported consuming alcohol during service in order to cope with the stressful events and did not seek treatment due to stigma of going to sick call. After a review of all evidence, lay and medical, the evidence is at least in relative equipoise on the question of whether there were corroborated psychological events ("stressors") during service. The complete service treatment records do not show reports or treatment for psychiatric symptoms. An August 1995 psychiatric examination was normal but the August 1995 service separation examination report shows the Veteran reported depression, excessive worry, and nervous trouble. The service personnel records show behavioral markers that make the Veteran's foregoing statements regarding in-service stressor events credible. There were at least 12 disciplinary counseling reports from 1994 to 1995 due to the Veteran not returning to station, not informing the superiors of whereabouts, and not completing formation. In January 2000, when the Veteran was appealing the character of discharge, the Veteran reported that his spouse had a difficult pregnancy and therefore the Veteran had problems with his superior. The Veteran reported that the superior was not willing to work with him. In the 12 counseling reports, superiors continually requested that the Veteran keep them abreast of the family and financial problems with which the Veteran was dealing because the Veteran was not disclosing such problems. The Veteran was discharged for unsatisfactory performance and the unit commander recommended separation and waived further rehabilitation efforts. The character of discharge was changed to "honorable" in May 1998. The multiple disciplinary actions for substandard performance due to vague statements or "family problems" and the subsequent discharge for such performance, together with the Veteran's reports of stressful events that he did not report due to stigma, support a finding of in-service psychological events. The Veteran reported that the stressful incidents occurred at the beginning of service, around 1994, and the Veteran received disciplinary action for the remainder of the two years of service, which supports the chronology of the Veteran's behavioral responses to the incidents. The August 1995 service separation examination report additionally shows the Veteran alluded to such psychological events when he checked the boxes for depression, excessive worry, and nervous trouble. The Board also finds that the Veteran's reasons for not reporting such stressors or symptoms credible in light of the substance of the stressors that include the physical assault by the Veteran's superior. Such evidence corroborates the reported in-service personal assaults and witnessing the death of another service member per 38?C.F.R. §?3.304(f)(5). Resolving reasonable doubt in the Veteran's favor, the Board finds that there was a personal assault to the Veteran and the witnessing of another service member dying during service. The evidence is at least in relative equipoise on the question of whether the current anxiety and PTSD are etiologically related to the in-service psychological events/stressors. In a November 2023 medical opinion, submitted in January 2024, a private medical provider opined that the anxiety is at least as likely as not related to service because there is a history of self-medication with alcohol and law enforcement involvement and a documented history of anxiety treatment which is related to the same in-service self-medication due to the reported traumatic events the Veteran underwent. In January 2024, another private medical provider opined that the anxiety is at least as likely as not related to service because the in-service stressors of physical assault and witnessing another service member die caused severe emotional distress that was later diagnosed as anxiety. The Board finds that the two foregoing medical opinions are probative because the examiners considered the same psychological events that the Board has already found occurred during service and explained how in-service markers of self-medication with alcohol led to the later diagnosis of anxiety. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). Resolving reasonable doubt in the Veteran's favor, the Board finds that the anxiety is etiologically related to the in-service psychological events. While the examiners do not mention the diagnosis of PTSD, the Board finds that the explanations regarding a nexus between the in-service "traumatic events" and the current anxiety also apply to a nexus between the current PTSD and service. The examiner explained how the Veteran self-medicated during service to cope with such stressors that caused emotional distress and led to the later psychiatric diagnoses. Resolving reasonable doubt in the Veteran's favor, the Board finds that the PTSD is also etiologically related to the in-service stressors. Additionally, in a case of multiple diagnoses, such as the case with this Veteran, when it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam); 38 C.F.R. § 4.130 (providing that all psychiatric disabilities are to be rated under one General Rating Formula). In this case, the two private examiners indicated current symptoms of isolation, loss of interest, relationship difficulties, emotional detachment, irritability, and trouble maintaining employment "because of his mental health difficulties." For these reasons, the Board attributes all the mental health symptoms, to include PTSD symptoms, to the now service-connected anxiety. The practical effect of this decision is that all psychiatric symptomatology and social and occupational impairment attributable to psychiatric symptoms will be recognized as originating from the service-connected psychiatric disorder, which originally was anxiety, and will now include anxiety and PTSD. See Mittleider, 11 Vet. App. at 182. As all psychiatric symptoms will be considered part of the service-connected psychiatric disorder (anxiety), the Board finds this to be a full grant of the benefit sought on appeal with respect to the issue of service connection for anxiety. There will only be one rating for the service-connected PTSD with anxiety, not separate ratings, as provided in the schedular rating formula for rating mental disorders. See 38 C.F.R. § 4.130. Additionally, as the symptoms of PTSD and anxiety overlap in the manner that they cause social and occupational impairment, such that their functional impairment cannot be differentiated, separate ratings would also violate the rule against pyramiding of compensation at 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). For the foregoing reasons, the Board finds that the criteria are met for service connection for anxiety with PTSD; therefore, the appeals are granted. 3. Service connection for the back disability is granted. The Veteran appeals for service connection for a lumbosacral strain, DDD, and degenerative arthritis, diagnosed by VA in June 2023. See January 2024 substantive appeal to the Board. The Veteran contends that the back disabilities are due to carrying heavy equipment, jumping from tanks, and pushing and pulling heavy equipment as tank operator during service. See March 2023 VA Form 21-526EZ. The service treatment records show a diagnosis of a lumbosacral strain in March 1994. A November 2023 private treatment record, submitted in January 2024, shows the Veteran reported pain and hearing a "pop" in the back after marching with a rucksack. The evidence also is at least in relative equipoise on the question of whether there were back "events" during service. The Veteran reported back pain after repetitive movements such as lifting and pulling weights and jumping off vehicles. The Board finds the Veteran's explanations for this back injury in March 2023 credible because service personnel records show a military occupational specialty (MOS) of tank systems mechanic, which would require the Veteran to perform repetitive physical movements to repair tank systems. Such repetitive movements of jumping, pushing, and pulling require the use of the back and would explain the Veteran's reports of ongoing back pain. The evidence is at least in relative equipoise on the question of whether the current back disabilities are etiologically related to the in-service back injury and back "events." A November 2023 private treatment record, submitted in January 2024, shows a private medical provider opined that the current back disabilities are etiologically related to service because the repetitive in-service trauma to the back compromised the lumbosacral area of the spine and caused damage to the extensor and flexor muscles which eventually caused degeneration of the back. The Board finds this medical opinion probative because the examiner acknowledged the in-service back injury and repetitive back "events" that the Board has already found occurred and explained how an injury could cause the long-term degeneration of the back, leading to a condition such as degenerative arthritis of the spine. See Nieves-Rodriguez, 22 Vet. App. at 295. Resolving reasonable doubt in the Veteran's favor, the Board finds that the current back disabilities are etiologically related to the in-service back injury and repetitive back "events." For the foregoing reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria are met for service connection for the back disability; therefore, the appeal is granted. 4. Service connection for headaches is granted. The Veteran appeals for service connection for headaches, diagnosed by a private medical provider in January 2024. See January 2024 substantive appeal to the Board. The Veteran contends that the headaches had onset in service and have continued since then due to exposure to diesel fuel, hydraulic fluids, paints, lead, battery acid, transmission fuels, floor-sweeping and carpet-cleaning chemicals and hydrocarbons. See November 2023 private treatment record; March 2023 VA Form 21-526EZ; January 2024 private DBQ report. A May 2023 VA memorandum shows participation in a Toxic Exposure Risk Activity (TERA) due to exposure to diesel fuel, gas particulates, and hydraulic fuel as an M1 tank systems mechanic. An August 1994 service treatment record shows treatment for headaches and dizziness. The August 1995 service separation examination report shows the Veteran reported taking Motrin for headaches. The evidence is at least in relative equipoise on the question of whether the current headaches had onset in service. A November 2023 private treatment record, submitted in January 2024, shows a private medical provider opined that the current headaches had onset in service due to exposure to chemicals and that the headaches have continued since then. The examiner explained that medical studies show that chronic inhalation to chemicals such as sulfur dioxide, carbon dioxide, fine particulates, and nitrogen dioxide can cause arteries to dilate and spasm and have a negative impact on the nervous system, causing symptoms such as headaches and dizziness and the service treatment records show treatment for headaches and dizziness during service. The Board finds this medical opinion probative because the examiner acknowledged the in-service treatment for headaches and exposure to toxins that the Board and VA have already found occurred and explained the pathological relationship between inhalation of chemicals and arteries involved in causing headaches. See Nieves-Rodriguez at 295. Resolving reasonable doubt in the Veteran's favor, the Board finds that the headaches had onset during service due to exposure to toxins. For the foregoing reasons, the Board finds that the criteria are met for service connection for headaches; therefore, the appeal is granted. 5. Service connection for a craniopharyngioma is granted. 6. Service connection for OSA is granted. The Veteran appeals for service connection for craniopharyngioma, diagnosed by VA in December 2015 and removed via a craniotomy in October 2016. The Veteran also appeals for service connection for OSA, diagnosed by VA in June 2019. See January 2024 substantive appeal to the Board. The Veteran contends that the craniopharyngioma and OSA are due to exposure to diesel fuel smoke as a tank mechanic during service. See March 2023 VA Form 21-526EZ. A craniopharyngioma is a noncancerous brain tumor that begins as a growth of cells near the pituitary gland and can eventually grow to affect the pituitary gland. See "Craniopharyngioma," The Mayo Clinic, mayoclinic.org/diseases-conditions/craniopharyngioma/cdc-20354175. As aforementioned, a May 2023 VA memorandum shows exposure to toxic substances such as diesel fuel, gas particulates, and hydraulic fluid. The evidence is at least in relative equipoise on the question of whether the current craniopharyngioma and OSA are etiologically related to exposure to toxins during service. In a November 2023 private medical opinion, submitted in January 2024, a private medical provider opined that the current craniopharyngioma is etiologically related to exposure to "forever" chemicals such as polyfluoroalkyl substances ("PFAS") and chemicals used in explosives ("RDX" or "hexogen") during service because medical studies show that exposure to these chemicals causes alterations in the cardiovascular system, have a negative impact on blood pressure, and are neurotoxins so can cause severe neurological effects, including the development of this Veteran's brain tumor. The same medical provider opined that the current OSA is at least as likely as not due to exposure to the aforementioned chemicals during service because medical studies have shown that inhalation of organic solvents can cause a toxic encephalopathy of the central nervous system, resulting in symptoms of sleep apnea such as frequent waking, disordered REM sleep, and fatigue. The examiner cited a medical study done on men under similar conditions in India who developed sleep apnea after exposure to organic solvents. The Board finds these medical opinions probative because the examiner acknowledged the in-service exposure to toxins that the Board has already found occurred and explained the medical relationship between chronic exposure to chemicals, specifically PFAS and RDX, and the neurological effect the chemicals can have on the brain that can cause the current craniopharyngioma. The examiners also explained how inhalation of organic solvents can cause toxic encephalopathy (brain dysfunction caused by toxic exposure) in the context of studies showing a nexus between toxic exposure and the development of OSA symptoms. See Nieves-Rodriguez at 295. Resolving reasonable doubt in the Veteran's favor, the Board finds that the current craniopharyngioma and OSA are etiologically due to exposure to toxins. For the foregoing reasons, the Board finds that the criteria for service connection for craniopharyngioma and OSA are met; therefore, the appeals are granted. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Comis 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.