Citation Nr: 1601577 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 12-17 708 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for coronary artery disease (CAD), to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Attorney Mark Lippman WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1970 to September 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2011 and December 2011 rating decisions by the San Diego, California RO. In November 2015, a videoconference Board hearing was held before the undersigned; a transcript of the hearing is in the record. FINDINGS OF FACT 1. An unappealed January 2004 rating decision declined to reopen a claim of service connection for PTSD that had been previously denied based essentially on findings that the Veteran did not have a diagnosis of such psychiatric disability and that an underlying stressor event was not shown; new and material evidence was not received within the following year. 2. Evidence received since the January 2004 rating decision includes treatment records showing that the Veteran has a diagnosis of PTSD (that may be related to service); relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD; and raises a reasonable possibility of substantiating the claim. 3. The Veteran served in combat (and was awarded a Combat Action Ribbon) and has a recognized Axis I diagnosis of PTSD linked to his combat service. 4. A chronic heart disability was not manifested in service or in the first year following the Veteran's discharge from active duty; he did not serve in Vietnam, and is not shown to otherwise have been exposed to herbicides in service; and the preponderance of the evidence is against a finding that any current heart disability is related to his service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for PTSD may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2015). 2. On de novo review, service connection for PTSD is warranted. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015) 3. Service connection for coronary artery disease is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Regarding PTSD, inasmuch as this decision reopens the claim and grants service connection, there is no reason to belabor the impact of the VCAA on the matter. Any notice or duty to assist omission is harmless. Regarding CAD, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014), and Kent v. Nicholson, 20 Vet. App. 1 (2006), have been met. By correspondence dated in November 2010, VA notified the Veteran of the information needed to substantiate and complete his claims, to include notice of the information that he was responsible for providing, the evidence that VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. A notice deficiency is not alleged. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) Whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain chronic diseases were manifested during an applicable postservice presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the U.S. Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, a VA heart examination is not necessary, as there is no evidence even suggesting that there may be a nexus between any current heart disability (first diagnosed many years after service) and the Veteran's active service. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. Generally, when the RO denies a claim, and the veteran does not appeal the denial, such determination is final, and the claim may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105(c). However, under 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; however, if the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. PTSD An unappealed February 1995 rating decision denied the Veteran service connection for PTSD based essentially on findings that he did not have such diagnosis and that an underlying stressor event was not shown. An unappealed January 2004 rating decision declined to reopen the claim; new and material evidence was not received in the following year. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence of record at the time of the January 2004 rating decision included the Veteran's STRs, service personnel records, VA and private treatment records, a VA examination, and lay statements from the Veteran. The Veteran's DD 214 shows he was awarded a Combat Action Ribbon (which establishes that he engaged in combat with the enemy, and was subjected to a stressor event in service. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis of a psychiatric disability. On August 1976 service separation examination, psychiatric clinical evaluation was normal. On November 1994 VA examination, the Veteran reported that he was mostly stationed on the U.S.S. Blue Ridge, which was in the Gulf of Tonkin on three occasions during the Vietnam War: in 1971-72, in 1973-74, and in 1975. He reported that the ship was involved in broadcasting propaganda tapes and was fired on from Tiger Island on a number of occasions during the first two cruises. He reported that during the third cruise, they were involved in the evacuation from Vietnam, assisting Vietnamese evacuees. He reported that he saw a number of serious injuries during this evacuation and was exposed to shrapnel, but the main stress for him was when a number of the Vietnamese people he had cared for were later killed or injured in the collapse of a bulkhead on the vessel to which they were transferred. On mental status examination, there was no current psychiatric diagnosis other than marijuana use; the examiner opined that the Veteran appeared to have had PTSD in the past but that it was currently in remission. Evidence received since the January 2004 rating decision consists essentially of VA treatment records and a VA medical opinion letter showing that the Veteran has a diagnosis of PTSD, a command history for the U.S.S. Blue Ridge, and lay statements and hearing testimony from the Veteran. In July 2011, the Veteran submitted a command history for the U.S.S. Blue Ridge showing that, in April 1975, the ship was ordered to Vietnam to coordinate a task force in executing the world's largest helicopter evacuation. With thousands of Americans, Vietnamese, and third-country nationals aboard the evacuation vessels, the U.S.S. Blue Ridge sailed back to Subic Bay. In an April 2013 medical opinion letter, the Veteran's VA treating psychologist noted the Veteran's service on multiple deployments to the South China Sea and the Gulf of Tonkin and his involvement in the Easter Offensive as well as the evacuation of Saigon. She opined that the Veteran currently meets the criteria for a diagnosis of PTSD associated with combat-related trauma in the military. It was noted that the Veteran participated in combat and in the evacuation of Saigon (and spent 5 days caring for a group of refugees, 20 of whom were killed in an accident shortly thereafter). He reported that he began experiencing symptoms of re-experiencing, avoidance, emotional numbing, social isolation, exaggerated startle response, irritability, feelings of intense anger, and hypervigilance shortly after the evacuation. He reported that his symptoms contributed to marital difficulties and a history of work-related difficulties. A review of his treatment record found that he had a diagnosis of PTSD, and reported current symptoms consistent with such diagnosis. The provider opined that the Veteran's PTSD diagnosis is more likely than not the result of incidents in service. Because service connection for PTSD was denied in January 2004 based on findings that findings that there was no diagnosis of a psychiatric disability (PTSD), and that an underlying stressor event was not shown, for evidence to be new and material in this matter, it would have to tend to relate to those unestablished facts, i.e., show that he has a diagnosis of PTSD that may be related events to service. Evidence received since the January 2004 rating decision includes a VA medical opinion letter from the Veteran's treating psychologist relating his documented diagnosis of PTSD to events in service; is new; and particularly in light of the low threshold standard for reopening endorsed by the U.S. Court of Appeals for Veterans Claims in Shade v. Shinseki, 24 Vet. App., 110, 117-18 (2010), raises a reasonable possibility of substantiating the claim, Accordingly, the new evidence is both new and material, and the claim of service connection for PTSD may be reopened. The analysis turns to de novo review. The Board observes that the Veteran is not prejudiced by the Board's proceeding to de novo review upon reopening without returning the matter to the AOJ for initial de novo review, because the benefit sought is being granted. It is not in dispute that the Veteran served in combat, and also witnessed documented stressor events in service, and that he has a diagnosis of PTSD (and receives VA treatment for such disease). A VA treating psychologist related the Veteran's PTSD to stressors in service. The Board finds no reason to question the expertise of the Veteran's treating VA psychologist, or the opinions she has offered, finding them probative and persuasive. [The Board observes that it would be inconsistent for VA on the one hand to be providing the Veteran treatment for PTSD, and on the hand to find he does not have such disability.] The Board defers to the judgment of the Veteran's treatment provider who is most familiar with his psychiatric disability picture. Resolving any remaining reasonable doubt in the Veteran's favor (as required, see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board concludes that all of the requirements for establishing service connection for PTSD are met, and that service connection for PTSD is warranted. CAD (post myocardial infarction (MI)). Certain chronic disabilities, such as cardiovascular disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Certain chronic diseases may be service connected on a presumptive basis as due to exposure to herbicides (Agent Orange) if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116. Those diseases are listed in 38 C.F.R. § 3.309(e); ischemic heart disease (including CAD) is included in the list. Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Veteran stated/primary theory of entitlement to service connection for CAD is one of presumptive service connection. He contends that his current cardiovascular disease is due to his exposure to herbicide in service. The Veteran's service records reflect that he was awarded the Vietnam Service Medal for service on board the U.S.S. Blue Ridge while operating in the contiguous waters of Vietnam. The claims file includes a November 2010 response to a request for information regarding the Veteran's service, indicating that his ship, the U.S.S. Blue Ridge, was in the official waters of the Republic of Vietnam from February 25 to 27, 1972; March 4 to 5, 1972; April 7 to June 5, 1972; and June 15 to 30, 1972. The record does not show that he served on land in Vietnam. In his June 2012 substantive appeal, the Veteran stated that his duties during service placed him in the waters along the coast of Vietnam, where he could see the planes bombing the coastal areas and spraying the jungles with Agent Orange. He stated that for several months, the ship on which he served cruised the coastline of Vietnam during spraying operations which eventually drifted to the ship from the shorelines due to the prevailing winds. At the November 2015 hearing before the undersigned, the Veteran testified that he served onboard the U.S.S. Blue Ridge in the Gulf of Tonkin. He testified that he was within sight of land, but the ship stayed in the "blue water" of Vietnam during the evacuation of Saigon and he never set foot on the ground. Inasmuch as the Veteran is not shown to have served in Vietnam (including its inland waterways), or to have otherwise been exposed to herbicides in service, the presumptive provisions of 38 U.S.C.A. § 1116 do not apply, and service connection on a presumptive basis for ischemic heart disease as due to Agent Orange exposure is not warranted. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis of cardiovascular disease. On August 1976 service separation examination, his heart was normal on clinical evaluation. Postservice treatment records first show treatment for heart disease many years after service. The medical evidence reflects that CAD was diagnosed in March 1994, when the veteran was hospitalized after three days of increasing chest pain associated with EKG changes. He underwent catheterization and angioplasty and was noted to have suffered an MI. It was noted that he had no prior history of heart disease. Subsequent VA and private treatment records show ongoing treatment for CAD, post MI, but do not include information regarding the etiology of the disability. The Veteran's STRs are silent for any findings, treatment, or diagnosis pertaining to cardiovascular disability. Furthermore, there is no evidence that a heart disability was manifested in the first postservice year (the Veteran does not allege otherwise). There is no evidence of symptoms or treatment concerning ischemic heart disease for more than 17 years following service (from separation in September 1976 to the first record of cardiovascular complaints on March 1994 treatment). Consequently, service connection for a heart disability on the basis that such disability became manifest in service and persisted, or on a presumptive basis (under 38 U.S.C.A. § 1112) is not warranted. Additionally, although heart disease is considered a chronic disease under 38 C.F.R. § 3.309(a), the probative evidence in the record does not support a finding of continuity of symptomatology of such disease. The Veteran has not alleged, and the evidence does not show, that he experienced cardiovascular symptoms in service which have continued to the present. Furthermore, postservice evaluation/treatment records provide no indication at all that any heart disability (and specifically the diagnosed coronary artery disease) may somehow be directly related to the Veteran's service. The treatment records make no mention of the Veteran's service. In summary, the medical evidence shows that post MI CAD became manifest many years after the Veteran's separation from service, and is not shown to be related to his service (with no evidence of a related cardiac disease or injury in service). In light of the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Accordingly, it must be denied. ORDER The appeal to reopen a claim of service connection for PTSD is granted; service connection for PTSD is granted on de novo review. Service connection for coronary artery disease is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs