Citation Nr: 1339221 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 08-06 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for residuals of exposure to herbicides, and if so whether service connection should be granted. 2. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD), and if so whether service connection should be granted. 3. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, and if so whether service connection should be granted. 4. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for alcoholism and polysubstance abuse, and if so whether service connection should be granted. 5. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for migraine headaches. 6. Entitlement to service connection for chronic bronchitis. 7. Entitlement to special monthly pension based on the need for aid and attendance or by reason of being housebound. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal of March 2007 and August 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In August 2008, the Veteran testified before the undersigned at VA's Central Office in Washington, D.C. A transcript (Tr.) of the hearing is of record. In March 2009, the Board remanded the issues of service connection for PTSD and entitlement to special monthly pension for further evidentiary development. Then, in September 2011, the Board issued a decision denying those claims and the other issues listed on the title page. The Veteran submitted a Motion to Vacate the September 2011 decision, which the Board granted on the due process grounds. Specifically, the Board ruled that the Veteran should have been permitted to submit additional evidence in response to a December 2010 VA examination report, which had not been forwarded to him until two days before the September 2011 decision was issued. Accordingly, the Board vacated its prior decision so as to allow the Veteran the opportunity to submit such evidence in support of his claims. He and his representative have since provided additional written argument, which the Board has considered in tandem with the evidence that was already of record when the September 2011 decision was issued. The Board recognizes that, at the time of that prior decision and, indeed, throughout the entirety of the appeal, the Veteran's petition to reopen his PTSD claim has been considered separately from his claims for other acquired psychiatric disorders. At first blush, this construction appears to contradict the holding of the United States Court of Appeals for Veterans Claims (Court) that a claim for one acquired psychiatric disorder effectively encompasses claims for all such disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Nevertheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has ruled that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b) the "factual basis" is the underlying disease or injury, rather than the symptoms thereof. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The Federal Circuit's ruling has been effectively reconciled by the Court in Clemons, which has determined that the scope of a claim is defined retrospectively, i.e., after there has been a finding of fact based upon competent medical evidence. See Clemons, 23 Vet. App. at 8. In the contexts of petitions to reopen, this accomplishes a balancing effect that preserves the finality of VA decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the Clemons Court has also stressed that the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. Accordingly, applying the dictates of Boggs and Ephraim in the particular context of Clemons, the Board finds that, for purposes of reopening with new and material evidence, the Veteran's previously-denied claims for service connection for PTSD and acquired psychiatric disorders, other than PTSD, should continue to be bifurcated, and that these issues should also be distinguished from his previously-denied claim for alcoholism and polysubstance abuse. Once reopened, however, the Board considers it appropriate to characterize those claims as a single issue. Moreover, the Board finds that issue should be expanded to include an original claim of service connection for a mood disorder, which also has been raised on appeal. Conversely, that issue should not encompass a claim of service connection for a psychotic disorder, which was denied in a July 2013 rating decision that the Veteran has yet to appeal. As a final introductory matter, the Board observes that the Veteran has submitted evidence and argument attesting to his unemployability due to PTSD and other acquired psychiatric disorders. See December 2010 VA Examination Report at 9 (noting that Veteran has not worked since 1982 as consequence of his mental health problems); see also Social Security Administration (SSA) records (confirming that he is receiving SSA disability due to mental disorders); Correspondence from Representative, dated May 29, 2012 (received at the RO on August 17, 2012) (arguing that Veteran's PTSD and related symptoms preclude employment). The Veteran is not yet service connected for any such disorders. Nevertheless, in light of the action taken below, the Board considers the evidence and argument presented to be sufficient to raise a new claim of entitlement to a total disability rating based on individual unemployability (TDIU). As this issue of TDIU has not yet been developed for appellate review, it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The reopened issues of (1) entitlement to service connection for residuals of herbicide exposure; (2) entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, a mood disorder NOS, and alcoholism and polysubstance abuse disorder; and (3) entitlement to special monthly pension based on the need for aid and attendance or by reason of being housebound are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. An unappealed November 1979 rating decision denied service connection for residuals of herbicide exposure. 2. Evidence received since the November 1979 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for residuals of herbicide exposure. 3. An October 2005 Board decision denied entitlement to service connection for PTSD; while the Veteran attempted to appeal that decision to the United States Court of Appeals for Veterans Claims, his appeal was dismissed as untimely. 4. Evidence received since October 2005 Board decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for PTSD that is not cumulative or redundant of evidence already of record. 5. An unappealed June 2001 Board decision declined to reopen the Veteran's previously-denied claim of service connection for an acquired psychiatric disorder other than PTSD. 6. Evidence received since the June 2001 decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD. 7. An unappealed April 1990 rating decision denied service connection for alcoholism and polysubstance abuse (claimed as alcohol and other substance abuse). 8. Evidence received since April 1990 relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for alcoholism and polysubstance abuse. 9. An unappealed January 1987 rating decision denied service connection for migraine headaches. 10. Evidence received since January 1987 is cumulative or redundant of evidence already of record and does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for migraine headaches. 11. The Veteran's chronic bronchitis was not caused or aggravated by any aspect of his active military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for residuals of herbicide exposure. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. New and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. New and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. New and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for alcoholism and polysubstance abuse. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 5. New and material evidence has not been received to reopen the previously-denied claim of entitlement to service connection for migraine headaches. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 6. The criteria for service connection for chronic bronchitis have not been met. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset of this discussion, the Board notes that it has reviewed all the evidence in the Veteran's paper and electronic claims file. Although the Board is obligated to provide adequate reasons and bases for its decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims and what the evidence in the claims file shows, or fails to show, with respect to those issues. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). I. Veterans Claims Assistance Act of 2000 Before addressing the specific criteria governing the Veteran's petitions to reopen and his original claims for service connection, the Board must consider whether VA has met its duties to notify and assist under the VCAA. See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Accordingly, the Board will now address each of these statutory duties in the order set forth below. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate the claims at issue. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1) (2012). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA 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. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). Additionally, where, as here, a veteran seeks to reopen a previously-denied claim, the VCAA directs VA to send a letter that: (1) advises him or her of the agency's definition of "new and material evidence"; (2) identifies the specific evidence needed to substantiate the element(s) of service connection found lacking in the previous final adjudication; and (3) provides general notice for the underlying service connection claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the Veteran was sent VCAA notice prior to the initial unfavorable adjudication of his petition to reopen his claim for service connection for migraine headaches, as well as his original claim of service connection for chronic bronchitis. Specifically, a July 2010 letter advised the Veteran of the specific evidence needed to substantiate those claims, and of his and VA's respective responsibilities for obtaining such evidence. The letter also described how VA assigns a disability rating and an effective date following an original grant of service connection, as well as the specific criteria governing petitions to reopen based on new and material evidence. As such, that letter not only comported with the general notice provisions under Pelegrini and Dingess but also satisfied the particular VCAA requirements set forth in Kent. Accordingly, the Board finds that VA has fully met its duty to notify the Veteran under 38 C.F.R. § 3.159(b). Duty to Assist The Board also finds that VA has satisfied its duty to assist the Veteran pursuant to 38 C.F.R. § 3.159(c)(4). In this regard, the AOJ has obtained copies of his service treatment and personnel records, Social Security Administration (SSA) disability records, and post-service treatment records from VA and non-VA providers that the Veteran has identified in connection with his appeal. Significantly, he has not alleged, and the record has not otherwise revealed, any pertinent documentation that remains outstanding with respect to the claims decided herein. In addition to records procurement, the AOJ has assisted the Veteran by affording him VA examinations in support of his claims. While the Veteran and his representative have contested the clinical findings of the December 2010 VA psychiatric examination, the specific issues addressed therein are being remanded for additional development. The requested development includes scheduling the Veteran for a follow-up VA psychiatric examination, which is expressly intended to correct the inadequacies alleged in the December 2010 examiner's report. Significantly, neither the Veteran nor his representative has contested the adequacy of any other examinations rendered with respect to his pending claims. The Board recognizes that the Veteran has not been afforded a VA examination that expressly addresses his petition to reopen his headaches claim. However, the Board has decided not to grant that petition, for the reasons outlined below, and, thus, no VA examination is warranted with respect to that issue. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007) (noting that VA does not have a duty to provide an examination if a claim is not reopened). The Board finds that an examination is not warranted with respect to the Veteran's chronic bronchitis claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), citing 38 U.S.C.A. § 5103A(d)(2) (holding that a VA examination is in order when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; and (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim). Specifically, the Board finds as fact that the evidence does not establish that an event, injury or disease occurred during service involving bronchitis. The service treatment records do not show treatment for bronchitis. Additionally, at service discharge, clinical evaluation of the lungs and chest was normal. At that time, the Veteran specifically denied ever having or having then asthma, shortness of breath, pain or pressure in chest, and chronic cough. See October 1968 Report of Medical History at item # 20, second column. The examiner noted that there were no injuries or illnesses incurred in service so far. Thus, to the extent that the Veteran has alleged having bronchitis in service, the Board finds such statement is not credible, when he specifically denied ever having various lung symptoms at service discharge. For these reasons, the Board finds as fact that there was no disease or injury in service. As a final matter regarding the duty to assist, the Board notes that the Veteran has had the opportunity to testify before the undersigned in support of his petition to reopen his claim for service connection for PTSD and entitlement to special monthly pension. See 38 C.F.R. § 20.700(a) (2013). The transcript of the August 2008 hearing reflects that the undersigned set forth those issues at the start of the proceeding, then focused on the elements necessary for substantiation and the need for further development. See Board Hearing Tr. at 2, 14-19. Specifically, the undersigned elicited testimony from the Veteran regarding the grounds for the previous final denial of his PTSD claim and the particular psychiatric and medical conditions for which he sought special monthly pension. Id. These actions satisfied the duties a Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked, as evidenced by the reopening of the Veteran's claim. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the provisions of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, the Veteran has not alleged, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or committed other prejudicial error, either by failing to fully explain the issue on appeal or by neglecting to suggest the submission of relevant evidence that may have been overlooked. Moreover, there is no indication that the Veteran was otherwise denied due process during his hearing. Furthermore, he has expressly waived his right to testify in connection with the other issues on appeal. Accordingly, the Board finds that an additional hearing would only delay adjudication, without benefiting the Veteran, and should therefore not be undertaken. See Sondel v. West, 13 Vet. App. 213 (1999). Nor should any other evidentiary development be undertaken, apart from that expressly requested in the remand section, below. Indeed, the Veteran has had the opportunity to meaningfully participate in the adjudication of the issues decided herein such that appellate review may now proceed. See Washington v. Nicholson, 21 Vet. App. 191 (2007). II. New and Material Evidence The Veteran seeks to reopen his claims of service connection for herbicide residuals, PTSD and non-PTSD acquired psychiatric disorders, alcoholism and polysubstance abuse, and migraine headaches. The record reflects that those claims were all previously denied in decisions, issued by the Board and AOJ, which have achieved finality. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 19.129, 19.192 (2013). As such, those claims may only be reopened and reconsidered on the merits through the submission of new and material evidence. "New" evidence means existing 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. 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. See 38 C.F.R. § 3.156(a) (2013); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). When evaluating the materiality of newly-submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should consider whether such evidence, in its entirety, could at least trigger the duty to assist by providing a medical opinion. Id. at 117. Moreover, when determining whether a claim should be reopened, the credibility of any newly-submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Board finds that new and material evidence has been submitted that is sufficient to reopen the Veteran's claims for residuals of herbicide exposure, PTSD and non-PTSD acquired psychiatric disorders, and alcoholism and polysubstance abuse. Conversely, the Board finds that such evidence has not been submitted with respect to his petition to reopen his migraine headaches claim. The specific reasons and bases for the Board's determinations are set forth below. Residuals of Agent Orange Exposure An unappealed November 1979 rating decision denied service connection for herbicide exposure on the grounds that the Veteran had neither been treated for, nor otherwise produced evidence indicating such exposure. Significantly, however, VA has since amended its regulations to afford the presumption of herbicide exposure to any veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service personnel records establish that he had in-country Vietnam service during the requisite time period. As such, the presumption of herbicide exposure attaches in his case. Id. Having thus established that the Veteran meets the criteria for in-service herbicide exposure - the basis for previous denial of his claim for service connection - the Board finds that the criteria for reopening that claim are met. See 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. at 118. Indeed, such a partial grant of the benefits sought on appeal is proper in light of the Federal Circuit's holding that, under appropriate circumstances, an intervening change in the applicable law may entitle a claimant to receive consideration of a claim on a de novo basis, or as a "new" claim, even though the claim is based essentially on the same facts as those previously decided. See Spencer v. Brown, 17 F.3d. 368, 372 (Fed. Cir. 1994), aff'g 4 Vet. App. 283, 288-89 (1993); see also Routen v. West, 142 F.3d 1434, 1441-42 (Fed. Cir. 1998). PTSD An October 2005 Board decision reopened the Veteran's previously-denied claim of service connection for PTSD and then denied that claim on the merits. The Veteran filed a belated appeal that the Court dismissed it as untimely, thereby preserving the finality of the Board decision, which was predicated lack of verified in-service stressors. Evidence received since October 2005 decision includes a December 2010 memorandum from the AOJ's Joint Services Records Research Center (JSRRC) coordinator. Significantly, that memorandum expressly confirms that one of the Veteran's claimed in-service stressors (receiving incoming fire while driving in convoys in Vietnam) has been "conceded." The Board recognizes that the AOJ has since issued a July 2013 formal finding that the evidence of record is insufficient to confirm any additional PTSD stressors. However, that finding does not invalidate or otherwise undermine the JSRRC coordinator's previous stressor verification. Moreover, as this was the specific element of service connection found lacking at the time of the final prior decision, the Board finds that the JSRRC coordinator's December 2010 determination qualifies as new and material evidence sufficient to reopen the Veteran's PTSD claim. Shade, 24 Vet. App. 110. Acquired Psychiatric Disorder other than PTSD An unappealed November 1979 rating decision denied service connection for an acquired psychiatric disorder other than PTSD (then claimed as a "nervous condition"). The stated reason for the denial was that the evidence did not show that such a condition had manifested in service or within the initial post-service year. More than a decade later, an April 1990 rating decision effectively reopened the Veteran's claim (characterized as service connection for a manic-depressive nervous condition) and denied that issue on the merits. Thereafter, a November 1998 rating decision denied service connection for PTSD. The Veteran filed a timely Notice of Disagreement, but clarified on appeal that he wished to pursue a claim of service connection for a different acquired psychiatric disorder (bipolar disorder). Accordingly, the Board recharacterized the issue on appeal as service connection for an acquired psychiatric disorder other than PTSD, which it declined to reopen in an unappealed June 2001 decision. The Board explained in its decision that the Veteran's bipolar diagnosis had been of record at the time of the prior denial of his claim and that he had not introduced any new evidence linking that diagnosis, or any other non-PTSD acquired psychiatric disorder, to his active service. Significantly, the Veteran has since submitted SSA records showing that he is in receipt of disability compensation for recurrent bipolar disorder and related mental health problems. Also new to the record are VA group psychotherapy notes, which reveal that the Veteran has been diagnosed with antisocial personality and polysubstance abuse and has also been treated for symptoms of bipolar/schizophrenic spectrum disorder. Additional new evidence includes VA mental health records, dated in January 2006, November 2006, August 2007, January 2008, and April 2009. Those records collectively show that the Veteran has been diagnosed with and treated for schizoaffective disorder, bipolar disorder, psychotic disorder, antisocial personality disorder, a mood disorder not otherwise specified (NOS), and a polysubstance abuse disorder that includes alcohol and nicotine dependence. Finally, the most recent evidence submitted with respect to the Veteran's non-PTSD psychiatric claim includes his aforementioned December 2010 VA examination report and the argument received from his representative in August 2013. The December 2010 examination report, while principally focused on the Veteran's allegations of PTSD, nonetheless confirms his other acquired psychiatric diagnoses of bipolar disorder, psychotic disorder, and polysubstance abuse. See December 2010 VA Examination Report at 9. Moreover, while that report does not clearly specify the clinical etiology of those disorders, it does note the Veteran's complaints of nightmares and related mental health problems persisting since his Vietnam-era service. Id. at 8. The written argument from the representative further attests to the Veteran's severe and complex psychiatric history dating back to his active military service. While a layperson, the Veteran is competent to report ongoing mental health symptoms, dating back to his active military service, which he has personally experienced. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Similarly, his representative is competent to relay the Veteran's account of such symptoms, while also adding her own observations of his mental health status. Id. Moreover, the Board considers the assertions of both parties to be credible for the purpose of determining whether they are new and material. Fortuck, 17 Vet. App. at 179-80; Justus, 3 Vet. App. at 513. The Board finds that the clinical and lay evidence detailed above not only shows that the Veteran has acquired psychiatric disorders, other than PTSD, which were not previously of record, but also indicates that his underlying mental health symptoms have persisted on a recurrent basis since his Vietnam-era service. Such evidence, while not necessarily sufficient to grant his claim on the merits, is enough to trigger the need for a new VA examination in support of that claim. As such, that evidence is inherently new as well as material under the guidelines set forth in Shade, 24 Vet. App. at 117. Alcoholism and Polysubstance Abuse A January 1987 rating decision denied service connection for a disability characterized as "multiple substance abuse disorder." Thereafter, an April 1990 rating decision reopened the claim, but continued the denial of service connection for alcoholism. The Veteran did not appeal that decision, which was based on the AOJ's finding that his documented history of alcohol and polysubstance abuse was tantamount to willful misconduct for which VA benefits were legally barred. In this regard, the Board observes that compensation for disorders incurred through willful misconduct, to include the abuse of alcohol or drugs, is generally precluded as a matter of law. See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2013); see also VAOPGPREC 2-97 (Jan. 16, 1997). Nevertheless, where the record establishes that the willful misconduct in question is secondary to, or symptomatic of, a service-connected disability, compensation for the secondary disorder will be allowed. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In this case, the Veteran and his representative have presented argument, subsequent to the prior final denial of his claim for alcoholism and polysubstance abuse, which indicates that the willful misconduct inherent in such abuse is secondary to his PTSD and other acquired psychiatric disorders. Specifically, the Veteran has reported to the December 2010 VA examining clinician that he "drank like a fish" and abused marijuana in service so as to cope with the Vietnam-era stressors on which his PTSD claim is predicated. See December 2010 VA Examination Report at 4, 9. The representative for the Veteran has likewise indicated that his alcoholism and polysubstance abuse were exacerbated in Vietnam, coincident with the onset of his PTSD and other acquired psychiatric disorders. See Correspondence from Representative, dated May 29, 2012 (received at the RO on August 17, 2012) at 2-3. The Board recognizes that neither the Veteran nor his representative has the requisite clinical training to offer an opinion on the etiology of his alcoholism, polysubstance abuse, or any other mental health disorder. Nevertheless, the Board considers the parties' assertions, in tandem with the other evidence of record, sufficient to trigger VA's duty to assist by furnishing such an opinion. Indeed, as discussed in further detail below, an opinion by a qualified mental health clinician is necessary to address whether one or more of the Veteran's current acquired psychiatric disorder is etiologically related to his active service, and, if so, whether such a disorder caused or aggravated his alcoholism and polysubstance abuse. Such an opinion will enable the Board to determine whether those disorders, while predicated on willful misconduct, may nevertheless warrant service connection under the secondary theory of entitlement set forth in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Having thus established that the evidence received since the last final denial of the Veteran's alcoholism and polysubstance abuse claim is sufficient to warrant a VA examination, the Board finds that such evidence is therefore sufficient to reopen that claim. Shade, 24 Vet. App. at 117. Migraine Headaches An initial November 1979 rating decision denied service connection for migraine headaches because no such disorder had been shown in service. Thereafter, an unappealed January 1987 rating decision reaffirmed the previous disposition based upon a December 1986 VA neurological examination, which suggested that the Veteran had recurrent post-traumatic headaches, but declined to render a specific neurological diagnosis or etiological opinion. The evidence received since the unfavorable January 1987 decision includes (1) a March 1987 VA treatment note, referencing a pre-service history of head trauma at ages 13 and 15, with a subsequent history of seizures, but no history of frequent headaches; (2) a report of a July 1986 VA examination in which the Veteran reiterated his history of pre-service head injury, arising from a traffic accident at age 13 in which he was knocked unconscious and hospitalized, and another traffic accident in approximately 1985 in which he did not lose consciousness; (3) a July 1987 written statement in which he again acknowledged head trauma as a teenager, prior to his service enlistment, and also reported a second head injury in 1984, after he left the military; and (4) a November 1993 treatment record noting subjective complaints of headaches and clinical findings of multiple past trauma, with no residual deficits. The Board finds that none of this is new and material. At the time of the 1979 rating decision, the service treatment records were of record. At service entrance, the Veteran specifically reported a past history of head injury. See December 1967 Report of Medical History at item # 20, first column, and # 39. Thus, there was already evidence of pre-service head injuries at the time of the final denial. The evidence showing post service head injuries and headaches is also cumulative. Indeed, none of the evidence received since the prior final decision indicates that any of the Veteran's head injuries were incurred in or aggravated by his period of active service. Moreover, that evidence does not otherwise suggest an etiological link between the Veteran's migraine headaches, or any related symptoms, and his active service. Nor does that evidence indicate that such symptoms comport with a diagnosis other than migraines for which an alternate theory of service connection might be entertained. Accordingly, the Board finds that the evidence received since the unappealed January 1987 rating decision does not raise a reasonable possibility of substantiating the Veteran's migraine headaches claim. Nor does that evidence otherwise trigger VA's duty to assist by providing an examination in support of that claim. As such, that evidence, while new, is not considered material and the Veteran's migraine headaches claim is not reopened In summary, the Board finds that, while the Veteran has presented new and material evidence sufficient to reopen his claims for herbicide residuals, PTSD and non-PTSD acquired psychiatric disorders, and alcoholism and polysubstance abuse, he has not presented such evidence with respect to his migraine headaches claim and, thus, that issue is not reopened. While the Board considers it necessary to remand the Veteran's reopened service connection claims for the development described below, it will first address the merits of his original claim for service connection for chronic bronchitis. III. Service Connection Throughout the pendency of this appeal, the Veteran has maintained that he developed chronic bronchitis during his period of active military service and that direct service connection is therefore warranted. Alternatively, his representative has recently asserted that the Veteran's bronchitis is etiologically related to the herbicide agents to which he was exposed while serving in Vietnam. See Correspondence from Representative, dated May 29, 2012 (received at the RO on August 17, 2012) at 12-13. The Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that the Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process). Accordingly, the Board has considered whether to assess his claim under the criteria for secondary service connection. 38 C.F.R. § 3.310. In this regard, however, the Board observes that the Veteran and his representative have not contended, and the record has not otherwise shown, that his chronic bronchitis was caused or aggravated by his duodenal ulcer, the only disability for which service connection is currently in effect. The Board recognizes that additional VA benefits may be granted pursuant to its decision to reopen several of Veteran's service-connection claims and to remand those issues for further development, as discussed below. Even assuming that one or more of those reopened claims is granted, however, there is nothing of record that suggests a link between the Veteran's bronchitis and any of the disabilities implicated in such claims. Accordingly, the Board finds that there is no need to further consider his bronchitis claim under a secondary theory of entitlement. Nor is there any need for the Board to consider that issue under a presumptive provisions of 38 C.F.R. § 3.303(b), 38 C.F.R. § 3.307, and 38 C.F.R. § 3.309. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Indeed, while characterized as "chronic" by the Veteran himself, bronchitis is not included among the chronic diseases for which service connection may be rebuttably presumed under 38 C.F.R. § 3.309(a). Nor is it one of the diseases presumptively linked to in-service herbicide exposure. Thus, while the Board has conceded such exposure in light of the Veteran's service in the Republic of Vietnam during the period beginning January, 9, 1962, and ending May 7, 1975, service connection for the disorder at issue nevertheless unwarranted under 38 C.F.R. § 3.307(a)(6)(iii) and 38 C.F.R. § 3.309(e). Having thus established that the tenets of secondary and presumptive service connection are insufficient to grant the Veteran's bronchitis claim, the Board will next address the criteria for direct service connection. The Board will then explain why explain those requirements have not been fully met with respect to that claim. Service connection may be granted for a disability or injury incurred in or aggravated by active wartime or peacetime service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection on a direct basis requires evidence showing: (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. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Here, the record reflects that the Veteran has a clinical diagnosis of bronchitis. Accordingly, the first element of Hickson has been met in this case. Turning to the second element of Hickson, the Board observes that the Veteran's STRs are negative for any complaints or clinical findings of bronchitis or related respiratory symptoms. Similarly, his October 1968 service separation examination report contains no subjective or objective evidence of breathing abnormalities. To the contrary, that report reflects that the Veteran denied any recent or historic episodes of asthma, shortness of breath, chronic coughing, or chest pain or pressure. See October 1968 Service Separation Examination, Item 20. Instead, he indicated that his "health [wa]s good and sound," and the examining clinician likewise found "[n]o injuries or illnesses incurred while in service so far." Id. at Items 17, 39. The foregoing STRs and separation examination results weigh against a finding of in-service incurrence. Nevertheless, the Board is mindful that the representative for the Veteran has recently argued that his bronchitis was caused by in-service herbicide exposure. The Board concedes that the Veteran had such exposure based upon his confirmed wartime service in Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii). While this presumption is sufficient to satisfy the second element of Hickson, however, the Veteran must still establish an evidentiary nexus between his current bronchitis and in-service herbicide exposure in order to prevail in his claim. With respect to this third and final Hickson element, the Board observes that, while bronchitis is not one of the diseases for which a nexus to herbicide exposure is rebuttably presumed, service connection may still be established based upon probative evidence of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). However, no such evidence has been presented in the instant case. To the contrary, while the representative for the Veteran has submitted medical literature suggesting an etiological link between exposure to herbicides and a different disability (hypertension), no such evidence of a relationship has been introduced with respect to bronchitis. The Board recognizes that the representative herself sincerely believes that a nexus between herbicide exposure and bronchitis exists, as evidenced by her recent written assertions. See May 2012 Statement from Representative at 12-13. As is the case with the Veteran himself, his representative is competent to opine on medical questions that fall within the realm of common knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Such questions, however, do not include the etiology of the Veteran's bronchitis, which requires medical expertise to resolve. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n.4 (Fed. Cir. 2007) (noting that lay persons are not competent to diagnose cancer); see also Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his [active service], he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Accordingly, the Board finds that the above assertions of the representative, standing alone, are insufficient to establish a direct nexus between the Veteran's conceded in-service herbicide exposure and his chronic bronchitis. Therefore, absent any other probative evidence linking his active service to that current disability, the Board finds that the third and final Hickson element is unmet in this case and that service connection is therefore unwarranted. In arriving at this conclusion, the Board remains sympathetic to the Veteran and does not in any way wish to diminish his honorable Vietnam-era service. Nevertheless, the preponderance of the evidence weighs against his bronchitis claim. Accordingly, while the Board has considered the benefit of the doubt doctrine, that rule is inapplicable and service connection for bronchitis must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER As new and material evidence has been received, the petition to reopen the claim of entitlement to service connection for residuals of Agent Orange exposure is granted. As new and material evidence has been received, the petition to reopen the claim of entitlement to service connection for PTSD is granted. As new and material evidence has been received, the petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD is granted. As new and material evidence has been received, the petition to reopen the claim of entitlement to service connection for alcoholism and polysubstance abuse is granted. As new and material evidence has not been received, the petition to reopen the claim of entitlement to service connection for migraine headaches is denied. Entitlement to service connection for chronic bronchitis is denied. REMAND Although the Board regrets the additional delay, further development is needed with respect to the Veteran's reopened service-connection claims. See 38 C.F.R. § 19.9. I. VA Medical Examinations The Veteran was last afforded a VA psychiatric examination in December 2010. At that time, the examining VA psychologist opined that the Veteran's current psychiatric symptoms did not warrant a diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). However, while purportedly based on a review of the claims file, that unfavorable VA opinion made no mention of the Veteran's VA medical records, which are replete with clinical findings of PTSD rendered during the applicable appeals period. Such evidence is sufficient to meet the threshold criteria for service connection. Indeed, that would be the case even if the Veteran's PTSD diagnosis predated the filing of his initial claim for VA benefits. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) reflect (considering the application of McClain v. Nicholson, 21 Vet. App. 319 (2007) on a recent diagnosis predating the filing of a claim). In addition to omitting clinical evidence pertinent to the PTSD claim, the December 2010 VA examiner declined to reconcile her finding of a negative in-service nexus with respect to the Veteran's current acquired psychiatric disorders, other than PTSD, with his own countervailing assertions, and those of his representative, regarding ongoing cognitive and behavioral problems persisting since his active service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a lay person is competent to testify as to factual matters of which he has first-hand knowledge through observation or experience). Similarly, that examiner declined to address the etiology of the Veteran's alcoholism and polysubstance abuse. As noted in the preceding section, while direct service connection for such disorders is barred, they may nonetheless be subject to VA compensation based upon a secondary theory of entitlement. Having thus established that the December 2010 VA examiner declined to adequately address and reconcile critical evidence, both clinical and lay, the Board finds that examiner's opinion fails to describe the Veteran's mental health pathology in sufficient detail to decide his reopened service-connection claims. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). It follows that a new VA examination and etiological opinion are therefore warranted in support of those claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes efforts to provide an examination and opinion, it must ensure their adequacy). A new VA examination and opinion are likewise warranted with respect to the Veteran's reopened herbicide residuals claim. At the time of the last final denial of that claim, the record was unclear as to which residual disability the Veteran was alleging entitlement to service connection. However, his representative has since made clear that he seeks VA benefits for hypertension as secondary to in-service herbicide exposure. See Correspondence from Representative, dated May 29, 2012 (received at the RO on August 17, 2012) at 12. In support of that assertion, the representative has submitted Internet-based medical literature that denotes a general correlation between the herbicide Agent Orange and high blood pressure. See WebMD Health News: Agent Orange, High BP May Be Linked (printed on September 28, 2011). Such generalized medical literature is not specific to the facts of the Veteran's service-connection claim and, thus, cannot serve as a stand-alone basis for granting that claim. Nevertheless, that literature, in tandem with the other evidence of record, is enough to trigger the need for a VA examination as it collectively shows that the Veteran has a current diagnosis of hypertension, which may be related to his conceded in-service herbicide exposure, but is insufficient to make a decision on his claim. See McLendon, 20 Vet. App. at 81. Accordingly, as no VA examination has yet been conducted in support of the Veteran's reopened herbicide residuals claim, one should be scheduled on remand. See 38 U.S.C.A. § 5103A(d)(2). II. VA Medical Records Additional records development should also be performed on remand. Indeed, while the Veteran's December 2010 VA examination report indicates that he is receiving ongoing VA treatment for bipolar disorder and related psychiatric problems, no records of such treatment dated since October 2010 have yet been associated with the claims file. Accordingly, as it appears that there may be subsequent VA medical records that are pertinent to the Veteran's remanded claims, reasonable efforts to obtain those records should be undertaken. See 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). III. Special Monthly Pension (SMP) The Veteran claims entitlement to SMP based on the need for aid and attendance or by reason of being housebound. 38 C.F.R. § 3.351(a). Significantly, the written argument presented by his representative in support of that claim indicates that the Veteran's need for aid and attendance is predicated on the acquired psychiatric disorders addressed in this remand. Accordingly, the Board considers those matters to be inextricably intertwined and finds that service-connection issues remanded herein must be resolved prior to the adjudication of the claim for SMP entitlement. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the case is REMANDED to the RO for the following actions: 1. Obtain and associate with the claims file all records from the VA Illiana Health Care System dated since October 2010. All efforts to obtain such records should be memorialized in the claims file. The Veteran should be expressly advised of any records that cannot be obtained and advised to submit any additional pertinent records in his own possession in support of his claim. 2. After the development requested above is complete, schedule the Veteran for a VA examination to ascertain the nature and etiology of any current acquired psychiatric disorders, to expressly include PTSD; bipolar disorder, and a mood disorder NOS; as well as any disorder(s) predicated on alcoholism and polysubstance abuse. The paper claims file and Virtual VA efolder should be reviewed in conjunction with the examination and the examiner's report should note that review. All testing deemed necessary should be conducted and results reported in detail. The examiner is informed that there are multiple records in the claims file providing a medical history of the Veteran's psychiatric disorder. These documents have been tabbed on the left side of the claims file with the applicable month and date of the record and "psych." The examiner is informed that the Veteran's allegation of being thrown out of a convoy during a mortar attack and breaking his ankle is found not credible. The Veteran specifically denied any in-service injuries at service separation. The Veteran had the thought process to report breaking his collar bone when he was 17 years old and that it did not happen in service. The VA examiner's report should specifically address the following: a) Diagnose all current acquired psychiatric disorders and provide a full multi-axial diagnosis pursuant to the Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM- IV). b) Specifically state whether or not each criterion for a diagnosis of PTSD is met pursuant to the DSM- IV. c) If a diagnosis of PTSD is warranted, indicate the specific claimed in-service stressor or stressors upon which that diagnosis is predicated. d) Discuss whether it is at least as likely as not (50 percent or more probability) that any other currently diagnosed psychiatric disorder - including bipolar disorder and a mood disorder NOS - was caused or aggravated by the Veteran's reported in-service stressor(s) or by any other aspect of his active military service. e) If and only if any acquired psychiatric disorder is found to be related to the Veteran's active military service, state whether it is at least as likely as not (50 percent or more probability) that such disorder caused or aggravated any current disorder manifested by alcoholism or polysubstance abuse. In offering the requested opinions, the examiner should consider all pertinent evidence of record, in particular the December 2010 memorandum from the Joint Services Records Research Center (JSRRC) Coordinator verifying one of the Veteran's claimed in-service stressor (receiving incoming fire while driving in convoys in Vietnam-but not the part about being thrown out of a convoy and breaking his ankle). All findings, along with a fully articulated rationale for any opinion expressed, should be set forth in the examination report. If any of the examiner's findings are speculative in nature, it is essential that he or she provide a rationale for why an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that would enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA examination to address the nature and etiology of his currently diagnosed hypertension. The paper claims file and Virtual VA efolder should be reviewed in conjunction with the examination and the examiner's report should note that review. All testing deemed necessary should be conducted and results reported in detail. The VA examiner's report should address the following: a) State whether it is at least as likely as not (i.e., at least a probability of 50 percent or greater) that the Veteran's diagnosed hypertension had its onset during his active military service or manifested to a compensable degree within a year of his discharge. b) State whether it is at least as likely as not (i.e., at least a probability of 50 percent or greater) that the Veteran's diagnosed hypertension is otherwise to his active military service, including the herbicide exposure, which has been conceded in light of his in-country Vietnam-era service. In offering the requested opinions, the examiner should consider all pertinent evidence of record. In particular, the examiner should address and reconcile his findings with the Internet-based medical literature, submitted by the Veteran's representative, which denotes a general correlation between the herbicide Agent Orange and high blood pressure. See WebMD Health News: Agent Orange, High BP May Be Linked (printed on September 28, 2011). All findings, along with a fully articulated rationale for any opinion expressed, should be set forth in the examiner's report. If any of the examiner's findings are speculative in nature, it is essential that he or she provide a rationale for why an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that would enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claims remaining on appeal, including the issue of entitlement to SMP based on the need for aid and attendance or by reason of being housebound. If any requested benefit remains denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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. 2013). _____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs