Citation Nr: 1311679 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 09-13 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD and depression. 3. Entitlement to service connection for peripheral neuropathy, to include as due to toxic herbicide exposure. 4. Entitlement to service connection for thyroid cancer, to include as due to toxic herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to January 1968. This matter is on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before a Decision Review Officer (DRO) at the RO in May 2011 and before the undersigned Veterans Law Judge in January 2013. Transcripts of the hearings are of record. At his hearing before the Board, The Veteran asserted that the issue of entitlement to service connection for an acquired psychiatric disorder was also on appeal. According to the evidence of record, the RO denied service connection for only PTSD in the November 2011 rating decision. After he submitted a timely notice of disagreement with this rating decision, this claim (as well as the other issues on appeal) was again denied by the RO in a March 2009 statement of the case (SOC). The Veteran submitted a timely substantive appeal via Form VA-9 in April 2009, where he indicated his desire to appeal all the issues listed in the SOC. However, in May 2009, the Veteran submitted a new Form VA-9 indicating his intent to appeal only his neuropathy and thyroid cancer claims, as well as a new claim seeking entitlement to service connection for depression. It appears that the RO construed these May 2009 submissions as the Veteran's desire to withdraw his PTSD claim, and treated his claim for depression as a new and distinct claim. However, the Court of Appeals for Veterans Claims has specifically held that a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, his original PTSD claim should have also encompassed his depression symptoms. In view of Clemons, there would have been no need for the Veteran to submit a new psychiatric disorder claim, as it seems he tried to do in May 2009. Moreover, his mere failure to mention his psychiatric disorder claim in the second Form VA-9 should not be construed as his desire to withdraw the claim. Therefore, the issue of entitlement to service connection for an acquired psychiatric disorder, as it was originally denied in November 2007, remains on appeal. Recognition is given to the fact that the most recent SOC addressing the Veteran's acquired psychiatric disorder claim was in March 2009, and significant amount of evidence has been submitted to the claims file since then. However, he was sent a rating decision in August 2012 that considered all of the relevant evidence. Moreover, at his hearing before the Board in January 2013, the hearing officer informed him that the record could be left open to receive any additional evidence, and the Veteran responded that he would submit any outstanding records immediately. As such, the Veteran understood the requirements to submit additional evidence despite not receiving a SSOC, and the Board perceives that it is his intent that his claim be adjudicated without additional delay. Therefore, there is no prejudice to the Veteran that he received the RO decision as a rating decision rather than a supplemental statement of the case (SSOC), and the issue may be adjudicated at this point without remanding for a purely administrative defect. While the Veteran has submitted additional evidence since the most recent adjudicative decisions, the Board has reviewed this evidence and finds that it is has been previously reviewed by RO. Therefore, review of the claims at the point would not result in any prejudice to the Veteran. The issues of entitlement to service connection for thyroid cancer and peripheral neuropathy, to include as due to toxic herbicide exposure, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a September 1993 rating decision, the claim of entitlement to service connection for an acquired psychiatric disorder was denied on the basis that an acquired psychiatric disorder was not shown during active duty service, and that PTSD was not clinically diagnosed. The Veteran did not appeal the decision or submit additional evidence within one year of the decision. 2. The evidence added to the record since the September 1993 decision became final, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for an acquired psychiatric disorder. 3. The Veteran does not have a valid diagnosis of PTSD. 4. An acquired psychiatric disorder other than PTSD was not shown in service or for many years thereafter, and is unrelated to active duty service. CONCLUSIONS OF LAW 1. The September 1993 rating decision that denied the Veteran's claim for entitlement to service connection an acquired psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The evidence received subsequent to the September 1993 rating decision is new and material, and the requirements to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD and depression, have been met. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 3.159 (2012). 3. An acquired psychiatric disorder, claimed as PTSD and depression, was not incurred in or aggravated by service, and are not related to service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in January and August 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. There is additional notice requirements for claims to reopen based on new and material evidence, such as notifying a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, however, the Board has decided to reopen the claim. Therefore, any notice defect in this regard is of no prejudice to the Veteran. As such, adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's VA outpatient treatment records and records submitted in conjunction with a claim to the Social Security Administration (SSA). While the RO determined that some of the Veteran's service treatment records were unavailable, the Board is satisfied that a diligent effort was made to acquire them. Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim. A VA examination with respect to the issue on appeal was also obtained in June 2012. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination obtained in this case is more than adequate, it is predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Finally, to the extent that the claim is being adjudicated, the Veteran was also afforded a hearing before the undersigned Veterans Law Judge in February 2013. The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about the nature of his psychiatric disorder, and how he believes it is related to service. Although he also testified before a DRO at the RO in May 2011, the issues were reviewed and, although he did not discuss his psychiatric disorder, the duty to provide an adequate hearing was met in any event. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. However, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C.A. § 5103A (eliminates the concept of a well-grounded claim). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Because the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim, regardless of the RO's determination on the question of reopening, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to compensation benefits on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In this case, the Veteran submitted a claim in December 2004, seeking entitlement to service connection for an acquired psychiatric disorder. This claim was previously denied by the RO in September 1993 on the basis that there was "no objective evidence" of PTSD and the service treatment records do not show any evidence of depression while on active duty. He did not submit a timely appeal to this decision, nor did he submit any new and material evidence within one year of this decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). Thus, the decision became final one year later. Based on some of the evidence submitted by the Veteran since the September 1993 decision became final, the Board determines that this claim should be reopened. Specifically, VA has obtained is SSA records, which include a psychiatric examination from December 2009 that diagnosed him with both PTSD and depression. Not only is this evidence "new," in that it was not reviewed by the RO prior to the last final denial of the claim, it is also "material," as it relates to an unestablished fact necessary to support the claim. Namely, it is evidence raising the possibility of a current diagnosis of PTSD, which was not previously shown. Therefore, as new and material evidence related to the issue of entitlement to service connection for an acquired psychiatric disorder has been submitted, the Board concludes that it should be reopened. Moreover, as VA's duty to assist has been triggered in considering these claims, this includes undertaking any further necessary development. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). However, the United States Court of Appeals for the Federal Circuit has recently held that service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). As is relevant here, psychiatric disorders such as PTSD and depression, not being psychoses, are not considered chronic diseases under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). PTSD In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of 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. 38 C.F.R. § 3.304(f) (2012). As set forth under DSM-IV, a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. Generally, unless this traumatic event occurred while engaged in combat with the enemy, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran's testimony as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f); West v. Brown, 7 Vet. App. 70, 76 (1994). In this case, the Veteran has asserted that he has PTSD based on his service in the Republic of Vietnam. However, service connection is not warranted on this basis, as the Board concludes that he does not have a viable diagnosis of this disorder. It is true that he has been diagnosed with this disorder on a few occasions. Specifically, in March 1993, he complained of sexual dysfunction and was diagnosed with PTSD, although this diagnosis was not supported by any rationale or evidence. The evidence also includes a number of Vet Center treatment records from 2005 to 2008 which identify that he has been historically diagnosed with PTSD, although these records were more specific to the counseling he received rather than an actual evaluation of his psychiatric state. More recently at a December 2009 SSA psychiatric examination, the Veteran stated that he has been essentially homeless. He also stated that he experienced bouts of alcoholism since leaving his active duty service, which sometimes caused blackouts. He also reported flashbacks of his time in the Army. He was observed to be tearful, and he stated that he has difficulty maintaining contact with his friends. Based on the observed symptoms, he was diagnosed with both major depressive disorder without psychotic features and PTSD. However, the remainder of the evidence fails to concur with the SSA psychiatric examiner's conclusions. While some psychiatrists observed "features" of PTSD, depression has been the preferred diagnosis. Specifically, in December 2008, he complained of periods of anxiety and had experienced increased verbal altercations with his girlfriend. However, his diagnosis was again depression rather than PTSD. Although a follow-up evaluation in January 2009 again indicated "features" of PTSD, it was not actually diagnosed. Other VA evaluations in April and July 2009 diagnosed depression rather than PTSD. Significantly, the Board places great probative value in the three VA examinations the Veteran has received in order to address this disorder. First, he underwent two examinations by different examiners on consecutive days in April 1993. In the first, he stated that he never had any disciplinary actions, that he saw combat, and that the most difficult thing about service was "waiting for things to happen." He also recalled villagers laying down in front of his truck convoys, in an attempt to disrupt transportation. Upon examination, he mentioned symptoms of stress which he acknowledged was due to stress in his current job rather than his service in Vietnam. He also denied any nightmares or apparent insomnia. After completion of the examination, the examiner concluded that the Veteran did not demonstrate any symptomatology consistent with PTSD. At his second examination the next day, the Veteran asserted that he was "moodier" and preferred to be alone more often. He also claimed that he has had three suicide attempts. He acknowledged that he was sent to Vietnam for nine months, but does not remember anything about the experience. Following a full examination of the Veteran's symptoms, the examiner diagnosed major depression, and did not identify any PTSD symptoms. At his most recent VA examination in June 2012, the examiner noted the Veteran's symptoms of avoiding thoughts and the inability to recollect specific activities related to such trauma. He also described symptoms such as insomnia, depressed mood, flattened affect and some occasional panic attacks. However, based on the Veteran's displayed symptomatology, the examiner concluded that he did not meet the diagnostic threshold criteria for a diagnosis of PTSD, but instead diagnosed major depressive disorder. When weighing opinions that reach different conclusions, the Board must assess the credibility and weight to be given to evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). In this case, the Board is cognizant that the Veteran has been identified as having PTSD during some outpatient evaluations. Nevertheless, the Board places more probative value on the observations and conclusions provided by the VA examiners who, unlike the outpatient evaluations, had the opportunity to review the Veteran's claims file and to conduct a thorough interview with the Veteran. Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that VA psychiatric examinations are of unique probative value for a number of reasons: (1) VA practitioners are given specific instruction on how to conduct psychiatric examinations, including guidance materials and a certification process. (2) The VA reviews the quality of its practitioners' examinations, including taking steps to address identifiable problems with feedback and training. (3) The VA provides VA associated practitioners with the veterans' claims folders in connection with all mental-disorder examinations, and are instructed that a psychiatric diagnosis cannot occur without a review of the folder. (4) The VA noted that limiting the rule to VA associated practitioners, accompanied by periodic review of these examinations, would ensure standardization and consistency. Nat'l Org. of Veterans' Advocates, Inc. v. Sec. Of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012) (citing 75 Fed.Reg. 39,843, 39,847-48 (July 13, 2010)). As a consequence, the Board relies on the conclusions of the VA examiners that the appropriate diagnosis for the Veteran's symptoms is depression, and discounts the comparatively less probative outpatient evaluations which suggest PTSD. Given the above evidence, PTSD is not shown, and service connection is not warranted on this basis. Depression With regard to the Veteran's depression which, unlike PTSD, has been diagnosed on a number of occasions, service connection is also not warranted for this disorder. As an initial matter, development undertaken by the RO indicates that a portion of the Veteran's service treatment records are unavailable. The Board recognizes that in such cases there is a heightened obligation to assist the appellant in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369- 70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the legal standard for proving a claim for service connection is not lowered. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Nevertheless, the service treatment records that are available do not reflect complaints of, treatment for, or a diagnosis related to a psychiatric disorder while in service. Significantly, the Veteran's separation physical examination in January 1968 fails to document any complaints of or observed symptoms related to an acquired psychiatric disorder. In fact, the first psychiatric symptoms were not noted in the claims file until September 1992, and the Veteran was not actually diagnosed with depression until May 1993. Nevertheless, even if the Board were to presume that depression was first evident in September 1992, this is still approximately 24 years after he left active duty. Even though service connection for a disorder such as this may not be shown simply based on continuity of symptoms, see Walker, 708 F.3d at 1331, such a large gap in treatment also weighs against the Veteran's claim that his psychiatric disorder is related to service. Moreover, the other evidence of record does not establish a medical nexus between active duty service and current complaints. In this regard, the Board places significant probative value on a June 2012 VA examination undertaken specifically to address this issue on appeal. At that time, after a thorough review of the Veteran's claims file and an interview of the Veteran, the examiner diagnosed major depressive disorder. However, the examiner also opined that it was his depression was less likely related to his active duty service, but was more likely associated with his chronic alcohol abuse, which is in sustained remission at this time. The Board also independently notes that there is no indication of psychiatric symptoms during service. The Board finds that this examination and resulting opinion is adequate for adjudication purposes. The examiner reviewed the claims file and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. The examiner also offered sufficient conclusions with supporting data as well as a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has also considered the statements made by the Veteran relating his psychiatric disorder to his active service, as it is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). As an initial matter, the Veteran is not competent to provide medical opinions related to the nature of his disorder or how his current disorder may be related to her in-service complaints, as psychiatric disorders are identified by clinical analysis administered by trained professionals. See Jandreau, 492 F.3d at 1377, n.4. Moreover, while the Veteran is competent to discuss symptoms, the Board also finds that his statements regarding his symptoms are not credible and of limited probative value. Namely, the Veteran has been inconsistent regarding his recollections of active duty service. For example, at his first VA examination in April 1993, he stated with great detail the nature of his active duty service, including his relationship with officers and fellow soldiers, incidents that occurred while in Vietnam and his symptoms. However, at his second VA examination the very next day, he stated that he was unable to remember anything about Vietnam whatsoever. The Veteran notably failed, on both occasions, to mention that he absent without leave (AWOL) for almost a month, and was incarcerated for his offense. Therefore, the Board concludes that Veteran is not competent to render opinions regarding the nature and etiology of his psychiatric disorder, and his statements not credible in any event. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER New and material evidence having been submitted, the application to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD and depression is granted, and the claim is reopened. Service connection for an acquired psychiatric disorder, claimed as PTSD and depression, is denied REMAND With regard to his claims for service connection for thyroid cancer and peripheral neuropathy, the Veteran is asserting that these disorders are related to his toxic herbicide exposure. VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicides used during that time, with "Agent Orange" being the most common. Service connection is warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, multiple myeloma, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), soft-tissue sarcomas, ischemic heart disease, Parkinson's disease, B-cell leukemias and, as is relevant here, prostate cancer. Moreover, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). In this case, the Veteran's service personnel records indicate that he served in the Republic of Vietnam from March 1967 to January 1968. As such, it may be presumed that he was exposed to toxic herbicides during this service. However, thyroid cancer is not a disorder specifically listed to be related to such exposure under 38 C.F.R. § 3.309(e). Moreover, while "acute and subacute peripheral neuropathy" is listed as one such disorder, the regulation defines this term as "transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset." Id. at Note 2. As such, the Veteran's current complaints of neuropathy would obviously not be applicable to this presumption as currently written. But see 77 Fed. Reg. 47,795-97 (August 10, 2012)(proposing to revise 38 C.F.R. § 3.309(e) to include more permanent forms of peripheral neuropathy). Nevertheless, even if the Veteran's claimed disorders are not listed in 38 C.F.R. § 3.309(e), service connection may still be established if there is other competent evidence indicating a relationship between the Veteran's claimed disorders and his active duty service. See Brock v. Brown, 10 Vet. App. 155 (1997); see also Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994) (addressing radiation exposure claims). In this case, a private physician submitted a brief opinion, stating that the Veteran's thyroid cancer and peripheral neuropathy. While the opinion is unsupported by any reasoning, it is still sufficient to trigger the need for a VA examiner's opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) Accordingly, the case is REMANDED for the following action: 1. Acquire any treatment records that may be available from the VA Medical Center in Wilkes-Barre, Pennsylvania, since March 2009. If the Veteran has undergone any private treatment for his thyroid cancer or peripheral neuropathy, and the records of such treatment have not been associated with the claims file, such records should also be acquired after obtaining his authorization. 2. Afford the Veteran an appropriate VA examination to determine the nature, extent, onset and etiology of his thyroid cancer and peripheral neuropathy. The claims folder should be made available to and reviewed by the examiner. All indicated studies deemed necessary by the examiner should be performed, and all findings of these tests should be reported in detail. The examiner should express an opinion as to whether it is at least as likely as not (i.e., a 50% possibility or greater) that a the Veteran's peripheral neuropathy and thyroid cancer is related to his active duty service, and in particular to his recognized exposure to toxic herbicides while in service. All opinions must be accompanied by an adequate reasons and bases. Such reasons and bases may include, but is not limited to, the presence of symptomatology in service, specifically cited medical literature, and past evidence in the record, especially prior VA examination reports. The examiner must consider the Veteran's lay statements regarding the incurrence of these disorders, and the continuity of symptomatology. If the examiner cannot provide the requested opinions without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. 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 that particular question(s). 3. After completion of the foregoing, readjudicate the claims on appeal. The RO should be cognizant that VA has proposed to revise 38 C.F.R. § 3.309(e) to include more permanent forms of peripheral neuropathy. If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs