Citation Nr: 1513491 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 13-08 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for post-traumatic stress disorder (PTSD), and if so, whether service connection is warranted. 2. Entitlement to service connection for diabetes mellitus (DM) as secondary to herbicides exposure. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a lung disability. WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Connolly, Attorney INTRODUCTION The Veteran had active service from September 1966 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The RO has reopened the claim, but continued the denial issued in a previous final decision. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The issues of service connection for PTSD, DM, hypertension, and a lung disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In November 2007, the RO denied service connection for PTSD. The Veteran did not appeal. 2. Evidence submitted since the RO's November 2007 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's November 2007 rating decision which denied service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2014) 2. New and material evidence has been received since the RO's November 2007 rating decision; thus, the claim of service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. With regard to the issue of whether new and material evidence has been received to reopen the claim of service connection for PTSD, the Veteran's claim is being granted to the extent that it is reopened. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. New and Material In a November 2007 rating decision, the RO denied service connection for PTSD on the basis that although the Veteran's VA outpatient records reflected a diagnosis of PTSD, combat service was not shown and the Veteran did not complete his PTSD questionnaire regarding his stressor information. A notice of disagreement was not received within the subsequent one-year period and relevant evidence was not received within one year. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Therefore, the RO's November 2007 rating decision is final. 38 U.S.C.A. § 7105. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 substantiating the claim. 38 C.F.R. § 3.156(a). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Since the prior final decisions, evidence has been added to the record. The additional evidence of record includes the Veteran's correspondence and testimony regarding an inservice stressor. He indicated that he was stationed in Okinawa and sought to get on a combat mission in order to get combat pay. He reported that he was able to secure a mission and was put on a B-52 bomber. The goal of the mission, which he did not know at the time, was to drop steel balls, cluster bombs, into an area of Vietnam to make a clearing for a helicopter to land. The next day, he flew back to Da Nang on a 130 plane to survey the results of the mission which had failed in that civilians and possibly military personnel had been killed. The RO attempted to verify this information with the U.S. Army and Joint Services Records Research Center (JSRRC) and Air Force Historical Research Agency, but the stressor could not be verified. The time frame searched was July through September 1969. However, at his Board hearing, the Veteran indicated that the mission actually occurred in October 1969, providing details of why he knew it was that month because it was his daughter's first birthday. For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person(s) making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993); but see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). In other words, the Board must presume that the claimed stressor of an inservice combat-related incident is true. Therefore, new and material evidence has been received since the November 2007 rating decision, and the claim of service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. ORDER The application to reopen the claim of service connection for PTSD is granted. REMAND As noted above, the RO attempted to verify the Veteran's stressor information with the JSRRC and Air Force Historical Research Agency, but the stressor could not be verified. However, the Veteran currently maintains that the incorrect time frame was considered (July to September 1969) because the incident occurred in October 1969. The Board has reviewed the responses of the JSRRC and Air Force Historical Research Agency which are comprehensive in nature. Nonetheless, the date of stressor as provided by the Veteran currently has not been used. Moreover, the service personnel record document that the Veteran participated in four aerial missions aboard KC 135 planes in Southeast Asia between October 25, 1969 and November 26, 1969. The Board recognizes that the responses indicated that the B-54 planes were not used for the type of mission described by the Veteran. However, since the service personnel record confirm that the Veteran flew in four Southeast Asia missions aboard KC 135s, the Board finds that an attempt should be made to determine via the JSRRC and Air Force Historical Research Agency to determine if any of these missions were made to Vietnam during the October 25, 1969 and November 26, 1969, time frame, and also determine if there was a landing in Da Nang, establishing in-country service with regard to the claim for service connection for DM on a presumptive basis. Also, an attempt is to be made to obtain copies of the Veteran's pay records reflecting special pay status (combat pay) from the Defense Finance and Accounting Service (DFAS) and the JSRRC, in an attempt to verify the Veteran's presence in Vietnam during active duty, again for the October 25, 1969 and November 26, 1969 time period. With regard to service connection for hypertension and a lung disability, the Veteran asserts that both were incurred during service and were treated within a year thereof by civilian doctors. A review of the service treatment records does not document a diagnosis of hypertension; however, the blood pressure readings on an April 1968 examination showed sitting blood pressure of 132/88, recumbent blood pressure of 128/84, and standing blood pressure of 134/88. With regarding to a lung disability, March 1970 x-rays revealed that the Veteran had a calcified primary complex on the left and a small calcified granuloma on the right. The calcifications were noted to be secondary to "dd inflammatory disease." In light of the foregoing, the Board finds that the Veteran should be afforded a VA examination to determine if any current hypertension or lung disease is related to service. In addition, the Veteran should be contacted to provide identifying information regarding the civilian doctors and also to provide information regarding which VA facilities provided treatment to him prior to 2004, and in particular from service discharge forward. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the Veteran's records reflecting combat pay for the October 25, 1969 and November 26, 1969 time period from DFAS and the JSRRC and/or other appropriate depository. If the Veteran had combat pay, an explanation is to be requested as to the circumstances under which a service member would have been entitled to combat pay during the Vietnam Era (i.e., would an award of combat pay signify service in Vietnam). Any negative search results must be noted in the record. 2. Also, contact the JSRRC and Air Force Historical Research Agency regarding the claimed inservice stressor, as previously identified to these agencies, but with regard to the KC 135 in addition to the B-52 bomber. An updated search for the October 25, 1969 and November 26, 1969 time period should be made. These agencies should address if any of the aerial missions made a stop at Da Nang Air Force Base (in-country Vietnam). 3. Contact the Veteran and request that he provide identifying information regarding the civilian doctors who treated him for hypertension and lung disability after service, as well as information regarding which VA facilities provided treatment to him prior to 2004, and in particular from service discharge forward. 4. The RO/AMC should then obtain any identified VA records per Paragraph #1. 5. After securing the appropriate medical release for any private doctors identified per Paragraph #1, obtain and associate with the record copies of all clinical records, which are not already in the record, of the Veteran's treatment. The RO/AMC must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the record. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of any current hypertension or lung disability. Any indicated tests, including X-rays if indicated, should be accomplished. The examiner should review the record prior to examination. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current hypertension or lung disability had its clinical onset during service or is related to any in-service disease, event, or injury, or if hypertension was manifest within one year of service. The examiner should specifically comment on the April 1968 examination with regard to the Veteran's blood pressure readings, and should comment on the March 1970 x-ray findings with regard to lung disability. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 7. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 8. Readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran 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 2014). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs