Citation Nr: 1334811	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  10-06 663	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to a compensable rating for bilateral hearing loss.

2.  Whether new and material evidence has been received to reopen a service connection claim for ischemic heart disease, secondary to herbicide exposure, and if so, whether service connection is warranted.

3.  Whether new and material evidence has been received to reopen a service connection claim for hypertension, secondary to herbicide exposure, and if so, whether service connection is warranted.

4.  Entitlement to service connection for diabetes mellitus, type II, secondary to herbicide exposure.

5.  Entitlement to service connection for left kidney cancer, secondary to herbicide exposure.

6.  Entitlement to service connection for an acquired psychiatric disorder (claimed as anxiety disorder with posttraumatic stress disorder (PTSD) features).


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel


INTRODUCTION

The Veteran had active military service from June 1967 to June 1971.

This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  In July 2008 the RO denied service connection for diabetes mellitus type II.  The RO denied service connection for an acquired psychiatric disorder in March 2010.  In April 2011, the RO denied service connection for ischemic heart disease.  Finally, the RO denied an increased rating for bilateral hearing loss, and service connection for hypertension and left kidney cancer in March 2012.  

In April 2013, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO.

After the case was certified to the Board, the Veteran submitted additional evidence in June 2013.  A remand, pursuant to 38 C.F.R. § 20.1304 is not necessary, however, as the evidence is essentially cumulative and duplicative of information already of record and considered by the RO.  Also, the evidence pertains to the Veteran's claims of service connection based on exposure to herbicides in Thailand, which are either remanded or granted below.

The issues of service connection for left kidney cancer and hypertension, both secondary to herbicide exposure, and an increased rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO.


FINDINGS OF FACT

1.  The Veteran's original service connection claims for coronary artery disease and hypertension were denied in a July 2008 rating decision.  The Veteran did not appeal this rating to the Board; nor has he asserted clear and unmistakable error in this decision.  

2.  The evidence received since the July 2008 RO decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claims for service connection for coronary artery disease and hypertension.  

3.  The probative evidence of record indicates that the Veteran had no active service in the Republic of Vietnam during the Vietnam Era but was exposed to herbicides while on active duty at Air Force Bases in Takhli, Korat, and Udorn, Thailand.

4.  The Veteran currently has diabetes mellitus and coronary artery disease, a form of ischemic heart disease.

5.  The Veteran has an acquired psychiatric disorder characterized as PTSD and an anxiety disorder that was incurred in, or caused by, his military service. 


CONCLUSIONS OF LAW

1.  The July 2008 RO rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2013).

2.  Since the July 2008 RO rating decision, new and material evidence has been received with respect to the Veteran's claims of entitlement to service connection for coronary artery disease and hypertension; and the claims are reopened.  38 U.S.C.A. § 5108  (West 2002); 38 C.F.R. § 3.156 (2013).

3.  The criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2013).

4.  The criteria for service connection for ischemic heart disease have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).

5.  The criteria for service connection for an acquired psychiatric disorder characterized as PTSD and an anxiety disorder have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Considering the favorable outcome detailed below as to reopening the service connection claims for hypertension and coronary artery disease and granting of the Veteran's claims for service connection for diabetes, coronary artery disease, and an acquired psychiatric disorder, VA's fulfillment of its duties to notify and assist need not be addressed at this time with respect to those matters. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Kent v. Nicholson, 20 Vet. App. 1 (2006).


I.  Claim to Reopen

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  38 U.S.C.A. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100 (2013).  For claims received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers.  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.  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 sustaining the claim.  38 C.F.R. § 3.156(a).  New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof.  See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  The only exception would be where evidence presented is inherently incredible.  Justus v. Principi, 3 Vet. App. 510   (1992).  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. 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 his claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminates the concept of a well-grounded claim).  Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA.  In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

As noted above, the Veteran's service connection claims for service connection of hypertension and coronary artery disease were last denied in a July 2008 rating decision.  The RO denied the claims on the grounds that there was no evidence of a link between the Veteran's coronary artery disease and hypertension and any event, injury or disease in military service.  The Veteran did not appeal this determination and it is now final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

New and material evidence has been received.  Evidence added to the record since the time of the last final decision includes additional statements from the Veteran asserting presumptive herbicide exposure based upon his presence in Thailand.  Specifically while the Veteran had previously contended exposure to herbicides from working on planes that had returned from Vietnam; he now alleges exposure from working on the base perimeter.  Also of record is a Memorandum for Record regarding herbicide use in Thailand during the Vietnam era, and a copy of the revised M21-1MR, which notes that Air Force Veterans who served on Royal Thai Air Force bases at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides.

The Board finds that the Veteran's recent statements, combined with the information contained in the VA memorandum regarding herbicide use in Thailand, are both new and material.  That newly received evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claims, and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.303 (2013).

Specifically, the newly submitted evidence tends to show that the Veteran may have been directly exposed to herbicides in Thailand.  Therefore, that new evidence supports a theory of service connection secondary to herbicide exposure, with proof of actual direct causation, which was not previously considered by the RO.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Moreover, that new evidence is presumed credible for the purpose of determining whether or not to reopen the claim.

New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin or aggravation of a Veteran's disability, even where it may not convince the Board to grant the claim.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  Here, the new evidence submitted in support of the Veteran's claim relates to previously unestablished facts, which tend to show that his currently diagnosed coronary artery disease and hypertension were caused or aggravated by actual in-service herbicide exposure.  Therefore, the Board finds that new evidence, when presumed credible for the purpose of determining whether it is material, is material.  Accordingly, the Veteran's claims are considered reopened.  Shade v. Shinseki, 24 Vet. App. 110   (2010).

II.  Service Connection Claims 

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(b).

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id. 

However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b)  to a chronic disease not listed in 38 C.F.R. § 3.309(a)  as "a substitute way of showing in-service incurrence and medical nexus").

In instances where the disability at issue is not considered a chronic disease under 38 C.F.R. § 3.303(b), the only two avenues for establishing service connection are by demonstrating that the disability occurred coincident with service under 38 C.F.R. § 3.303(a); or when the evidence shows that a disease diagnosed after service was incurred in service under 38 C.F.R. § 3.303(d).

In reviewing the evidence, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage v. Gober, 10 Vet. App. 488, 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Without a disability, service connection cannot be granted.  See Degmetich, 104 F. 3d at 1332; Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).

Lay 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).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-7; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107  (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

A.  Diabetes Type II and Ischemic Heart Disease

The Veteran asserts that he has diabetes and ischemic heart disease due to exposure to herbicides during his service in Thailand.  He also reported short visits to Vietnam but concedes that there may be no records of the short trips.  The Veteran maintains that his duties as an aircraft maintenance technician and being in living quarters within close proximity to the base perimeter in Thailand exposed him to Agent Orange. Consistent with his service personnel records, he testified before the undersigned that he was at Takhli, Korat, and Udorn Royal Thai Air Force Base during his three years of service in Thailand from 1968 to 1970.  His duties were those of an aircraft crew chief in Takhli and Udorn and working in crash recovery in Korat.  He indicated that in Korat he worked 12 hours a day at crash recovery at the end of the runway.  He noted that he was on the flight line which was very close to the perimeter.  He further noted working on trim pads, which he stated were on the base perimeter in Udorn and Takhli.  

The Veteran submitted a buddy statement from M.Y. in January 2011 indicating that to his knowledge the trim pad at Takhli RTAFB was located at the base perimeter of the flight line at the far end of the taxiway and that there was no vegetation around it.  Additional statements were submitted in January 2011 from individuals noting service on the trim pad as crew chief that was near the base perimeter at Takhli RTAFB.  The Veteran submitted another buddy statement from R.C.H. in August 2011, noting that he had worked with the Veteran at Udorn RTAFB in 1970 as crew chief and that their duties brought them near the base perimeter on the trim pads at the end of the taxiway that was sprayed with Agent Orange.
  
Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307.

If a Veteran was exposed to an herbicide agent during active military, naval or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(d) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposis's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).

On August 31, 2010, VA amended 38 C.F.R. § 3.309(e)  to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents.  The intended effect of this amendment is to establish presumptive service connection for these diseases based on herbicide exposure.  This final rule was published in the Federal Register. 75 Fed. Reg. 53, 202 (August 31, 2010).

For the purposes of §3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i).  Agent Orange is generally considered an herbicide agent and will be so considered in this decision.

"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii) , 3.313(a).  The VA General Counsel  has determined that 38 C.F.R. § 3.313(a) requires that an individual must have actually been present within the boundaries of the Republic.  Specifically, the General Counsel  has concluded that in order to establish qualifying service in Vietnam, a veteran must demonstrate actual duty or visitation in the Republic of Vietnam, and that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam. VAOPGCPREC 27-97.  As was noted above, the Federal Circuit has upheld this determination.  See Haas v. Peake, 525 F. 3d. 1168   (Fed. Cir. 2008).

VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ('M21-1MR').  VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in the above-referenced "Project CHECO Southeast Asia Report: Base Defense in Thailand."  Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases.  This allows for presumptive service connection of the diseases associated with herbicide exposure.

The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang.  If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q).

Notwithstanding the foregoing presumptive provisions, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997).  Thus, presumption is not the sole method for showing causation.

Consistent with controlling law, the RO undertook to determine whether the Veteran's service in Thailand likely exposed him to herbicides.  However, the RO made a formal finding of lack of information sufficient to corroborate exposure to herbicides in the Republic of Vietnam or any other location during his military service.  In an October 2012 statement of the case, the RO noted a VA Memorandum for the Record on the subject of herbicide use in Thailand during the Vietnam Era which does not reflect documentation of herbicide use that would have affected the Veteran.  The conclusion was that they were unable to verify that the Veteran was exposed to Agent Orange while in Vietnam or Thailand.

Service personnel records reflect that the Veteran served at Takhli AFB from August 1968 to May 1969, Korat AFB from May 1969 to September 1969, and Udorn AFB from October 1970 to June 1971.  His duties were listed as Aircraft Mechanic and Maintenance Specialist, and Crew Chief including Flight Line Maintenance.

The Board has considered the Veteran's testimony and finds that the preponderance of the evidence does show that he was, based on his duties and his locations, exposed to herbicides while in Thailand.  He served on one of the air bases where exposure was possible, and moreover, he describes duties that brought him in close proximity to the perimeter of the bases.  These duties are consistent with his MOS (military occupational specialty) and are not inconsistent with performance evaluations or other credible evidence.  The Board finds the testimony credible.  As such the Board acknowledges herbicide exposure on a facts found basis.

Thus, the Board finds that the Veteran was exposed to herbicides in service.  Given the above, the Board concludes that the Veteran is entitled to presumptions based on herbicide exposure.  See 38 C.F.R. §§ 3.307, 3.309.

The record establishes that the Veteran currently has Type II diabetes mellitus and coronary artery disease, a form of ischemic heart disease.  The Veteran had a heart attack and bypass surgery in 1999 and the diagnosis of coronary artery disease and diabetes appear in the record as late as 2012.  As such, service connection for diabetes mellitus and ischemic heart disease are granted as due to in-service herbicide exposure.

B.  Service Connection for Acquired Psychiatric Disorder

The Veteran seeks service connection for an acquired psychiatric disorder.  He testified that he witnessed a plane crash on April 8, 1969 (his birthday) and knew the individuals who died in the crash, Col. R., Col. A., and Capt. O.  He noted that he wrote a letter to his mom that night about the plane crash and submitted the letter into his file.  He recalled that part of his duties in the Air Force involved strapping in pilots, some of whom would not come back due to their planes being shot down.  He reported flashbacks of the plane crash about twice a month and waking up sweating.  Hearing helicopters also triggered the flashbacks.  

He submitted statements from his wife and family attesting to the symptoms of anger and depressed mood they had witnessed in the Veteran.

In addition to the service connection regulations noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred.  38 C.F.R. § 3.304(f). 

VA amended 38 C.F.R. § 3.304(f) to liberalize the evidentiary standard for establishing a required in-service stressor where a claimed stressor is related to fear of hostile military or terrorist activity.  See 75 Fed. Reg. 39,843 (stating that the amendments are applicable to appeals currently before the Board that have not yet been decided). 38 C.F.R. § 3.304(f)(3) (2013).  Here, the Veteran's claimed in-service stressor is not related to fear of hostile military or terrorist activity but rather to his witnessing a plane crash in which individuals he knew died, the occurrence of which has been established.  Thus, the amendment to section 3.304(f) is not applicable to the present claim. 

The record confirms the deaths of Col. J. R., Col. E. A., and Capt. J. O. on April 8, 1969 at Takhli, Thailand.  The Veteran also submitted a copy of the letter to his mother dated in April 1969 noting that one of their planes had crashed and that all three crew members had burned to death.  Therefore, the Veteran's reported stressor of witnessing a plane crash has been confirmed.

Post-service records show the Veteran reported in 2008 that he had been having trouble with his memory since 1999 when he had a myocardial infarction and bypass surgery.  He requested a consult in September 2008.  In December 2008, he underwent neurodiagnostic testing and was assessed as having a cognitive disorder and anxiety disorder.  

A February 2009 VA treatment record notes the Veteran did not meet the diagnosis of PTSD as he did not have three of the "numbing criteria" but it was found that the extreme anxiety seemed more likely than not to have originated during military service as a flight line crew chief servicing planes flying to and returning from Vietnam.  This report was signed by social worker, C.M.  

C.M. submitted another treatment record in March 2009 noting that the Veteran had a diagnosis of anxiety disorder, specific phobia, PTSD, and a cognitive disorder.  It was noted that review of the PTSD criteria indicated that the "anhedonia is long standing."  It was further noted that the Veteran remembered his anxiety starting during the Vietnam War and feeling a heavy responsibility for servicing planes.  He reportedly felt about the pilots "like a parent waiting for kids to come home... 'and they didn't always make it.'"  So, C.M. added PTSD as a diagnosis.

The Veteran underwent a VA examination in February 2010.  The examiner acknowledged the Veteran's confirmed stressor of witnessing an aircraft crash at Takhli Air Force base in which the pilot Col. [redacted], who the Veteran knew, died.  The examiner noted that the Veteran first saw a mental health worker in 2008 when he was referred for his phobia of bridges and forgetfulness.  After evaluating the Veteran the examiner determined that the Veteran did not have PTSD, but rather an anxiety disorder.  The examiner noted that the Veteran had experienced an event outside the range of usual human experience that would be markedly distressing to almost anyone.  With regard to re-experiencing, he indicated that he did not think about the incident until he started treatment, and then it became thoughts once or twice a week.  He denied nightmares or flashbacks.  He avoided crowds but the examiner noted that this might be more to do with his general nature of being a "loner."  He also had difficulty with sleep and irritability.  The examiner found, however, that these symptoms did not meet the criteria for a diagnosis of PTSD.  The examiner further found that the Veteran's anxiety disorder was not related to his military service, including witnessing the plane crash, but rather was related to his and his wife's serious medical problems.  Specifically he constantly worried about what would happen if he had another heart attack.

A March 2010 VA primary care note signed by a physician shows the Veteran had anxiety and PTSD since military service when he witnessed a plane crash and burn in front of him with no survivors.

A March 2010 VA mental health note signed by a psychiatrist notes that the Veteran thought he had PTSD from a plane crash; he was a jet mechanic and witnessed a plane crash in a rice paddy 200 yards from him.  He watched the rescue effort for a brief time; three people died.  He had nightmares years ago and endorsed intrusive thought.  He denied flashbacks but had psychological and physiologic distress when he heard planes over his house.  He did not like reminders of trauma and endorsed feelings of detachment and restricted range of affect.  The psychiatrist's impression was that the Veteran likely had PTSD.  It was noted that he endorsed significant symptoms consistent with PTSD and met the criteria for trauma, though possibly other factors were contributing, as noted in the previous VA examination (in February 2010).  The Axis I diagnosis was anxiety disorder, likely PTSD, and likely alcohol dependence in full sustained remission.

Social worker, C.M. and the previous March 2010 psychiatrist submitted the same reports with the same findings in February 2011 and March 2011, respectively.

Vet Center records also show a diagnosis of PTSD in March 2011 related to witnessing the plane crash in service.  The report was signed by a counselor.

In August 2011 the Veteran underwent another VA examination.  The examiner found that the Veteran had an anxiety disorder but did not meet all of the criteria for a PTSD diagnosis.  Specifically he did not have persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness.  The examiner further found that the anxiety disorder was less likely than not incurred in or caused by the claimed in-service event; but rather more likely to have been produced at other times and by other non-service events such as life-threatening medical problems, than by the claimed in-service stressor.

Vet Center records from November 2010 to January 2012 note ongoing treatment for PTSD.

In review of the evidence of record, there are multiple opinions both favorable and negative with respect to whether the Veteran has an acquired psychiatric disorder related to his military service.  All of the medical professionals considered the Veteran's psychiatric history and witnessing the plane crash that resulted in the deaths of his fellow service members in service and provided rationales for their opinions, but came to different conclusions.  There is no reason shown to value one opinion over the other.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (In determining the probative value of a medical opinion, assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case, whether the medical expert provided a fully articulated opinion, and whether the opinion is supported by a reasoned analysis.).  In weighing these conflicting and equally-weighted medical findings, the evidence is more or less equally-balanced.  It is also worth noting that even the negative opinions that relate the Veteran's psychiatric disorder to his life-threatening physical problems and fear of having another heart attack raise the issue of a possible secondary service connection theory of entitlement, now that his ischemic heart disease is a service-connected disability.  

As noted the Board finds that the evidence is relatively equally-balanced in terms of whether the Veteran's current anxiety disorder and PTSD are related to his military service, based on the post-service medical opinions provided; specifically there is no reason shown to value one opinion over the other in terms of the etiology of the Veteran's psychiatric disorders.  When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (holding that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail.").  Because there are medical diagnoses of PTSD and anxiety disorder related to the Veteran's witnessing the deadly plane crash in service, and competent and credible evidence that the in-service plane crash occurred, the Board concludes that the preponderance of the evidence supports the grant of service connection for an acquired psychiatric disorder to include PTSD and anxiety disorder.  Thus, following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran.  See 38 C.F.R. § 3.102.  Therefore, the Veteran's claim for service connection for an acquired psychiatric disorder characterized as PTSD and anxiety disorder is granted. 


ORDER

The claim of entitlement to service connection for hypertension is reopened, and to this extent only, the appeal is granted.  

Entitlement to service connection for ischemic heart disease, secondary to herbicide exposure, is granted.

Entitlement to service connection for diabetes mellitus, type II, secondary to herbicide exposure, is granted.

Entitlement to service connection for an acquired psychiatric disorder characterized as anxiety disorder and PTSD is granted.


REMAND

As noted above, the Veteran is presumed to have been exposed to herbicides during his service in Thailand.  He now has a current diagnosis of hypertension and has maintained that he has been on medication for hypertension for 40 years.  He also indicated that he saw his family doctor two to three months after his separation from service for palpitations and high blood pressure but that the doctor has since died.  In 1999 he had a heart attack and double bypass surgery.  

The record is not clear with respect to whether he has a diagnosis of left kidney cancer.  VA treatment records reflect multiple testing to assess whether he had cancer, but there is no clear diagnosis of record.  

While left kidney cancer and hypertension are not presumptively related to herbicide exposure, this does not prevent the Veteran from establishing service connection on a direct basis.  Also, given that service connection for diabetes, an acquired psychiatric disorder to include an anxiety disorder and PTSD, and ischemic heart disease has been granted as a result of this Board decision, the issue of a secondary service connection theory of entitlement is raised regarding the hypertension claim.  For these reasons, medical opinions are necessary to resolve these claims.

In addition, with respect to the left kidney cancer claim, the Veteran testified that he was going for further testing of a possible lesion in October 2013 and had been going for treatment for possible cancer since 2003.  Any additional treatment records pertaining to the Veteran's claims should be obtained on remand.

Regarding the increased rating claim for bilateral hearing loss, the last VA examination provided in August 2011 noted that the Veteran did not have any functional impairment in daily life or at work associated with his hearing loss disability.  However, the Veteran testified at the April 2013 Board hearing that he had to use a special bell to hear the phone at work and that while he owned his own car dealership, his son did 90 percent of the work.  He indicated that he had trouble hearing people he was not facing and had trouble hearing with a lot of background noise.  While he stated that he had no change in hearing since the last examination, he has reported a possible increase in hearing loss since he was last evaluated in 2011, as far as his daily functional and occupational impairment is concerned.    

The fulfillment of the duty to assist includes the conduct of a thorough and contemporaneous medical examination.  Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  However, the mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition.  Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007).  Given that the Veteran has asserted that the severity of his bilateral hearing loss disability might have worsened since it was last evaluated in 2011, an additional VA examination is warranted to determine the present severity of his bilateral hearing loss disability.    

Accordingly, the case is REMANDED for the following action:

1.  Make arrangements to obtain the most recent VA treatment records pertaining to any left kidney cancer, hypertension, and bilateral hearing loss from the Providence VAMC, dated since October 2012.

2.  Send the Veteran a notice letter addressing the criteria for secondary service connection for hypertension.

3.  Schedule the Veteran for the appropriate VA examinations to determine the nature and etiology of any left kidney cancer and hypertension.  The claims file must be made available to, and reviewed by, the examiner.  All appropriate testing should be conducted.

After a thorough examination the examiner should conduct any necessary diagnostic studies to assess whether the Veteran has left kidney cancer and provide an opinion as to the following:

(a)  Whether it is at least as likely as not (50 percent or greater probability) that any left kidney cancer and /or hypertension had its clinical onset during active service, within one year of service separation, or is related to any in-service disease, event, or injury, including exposure to herbicides in Thailand.  In providing this opinion, it is acknowledged that left kidney cancer and hypertension are not considered as presumptively related to herbicide exposure; but the examiner is asked to determine in the Veteran's individual case if any left kidney cancer and hypertension are directly related to his military service.  

(b)  Whether it is at least as likely as not (50 percent or greater probability) that any current hypertension was caused by his diabetes mellitus, psychiatric disorder to include anxiety disorder and PTSD, and/ or coronary artery disease.

(c)  Whether it is at least as likely as not (50 percent or greater probability) that any current hypertension was aggravated (meaning chronically worsened) by his diabetes mellitus, psychiatric disorder to include anxiety disorder PTSD, and/ or coronary artery disease.   If so, please state, to the extent possible, the baseline level of severity of the hypertension before the onset of aggravation.   

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.  

4.  Schedule the Veteran for an appropriate VA examination of his bilateral hearing loss.  The claims folder should be made available to and reviewed by the examiner.  All necessary tests should be performed.

The examiner should conduct a thorough audiological evaluation.  The examiner must also provide a full description of the functional effects caused by the bilateral hearing loss. 

The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

5.  After the requested examinations have been completed, the reports should be reviewed to ensure that they are in complete compliance with the directives of this remand.  If any report is deficient in any manner, it should be returned to the examiner for corrective action.

6.  Finally, readjudicate the claim on appeal.  If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond.

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).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs