Citation Nr: 1606095 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 10-49 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hepatitis B. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for PTSD. 4. Entitlement to service connection for diabetes mellitus. 5. Entitlement to service connection for a sinus disability. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to September 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2010 and October 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran provided testimony at a September 2015 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issues of entitlement to service connection for PTSD and entitlement to TDIU are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. An unappealed August 1998 rating decision denied service connection for hepatitis B and PTSD. 2. The evidence received since the August 1998 rating decision, by itself or when considered with the previous evidence of record, is cumulative and redundant of the evidence previously of record and does not provide a reasonable possibility of substantiating the claim; the claim of entitlement to service connection for hepatitis B is not reopened. 3. The evidence associated with the claims file subsequent to the August 1998 decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 5. The Veteran served offshore of Vietnam in Da Nang Harbor. 6. The evidence of record does not show that the Veteran stepped foot within the landmass of Vietnam or served within the inland waterways of Vietnam and exposure to herbicides may not be presumed. 7. Diabetes mellitus was not manifested in service, or in the first year following separation from active service, and is not shown to be related to service. 8. A sinus disability was not manifested in service, and is not shown to be related to service. CONCLUSIONS OF LAW 1. The August 1998 rating decision that denied service connection for hepatitis B and PTSD is final. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for hepatitis B. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. New and material evidence has not been received to reopen a claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 4. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 5. The criteria for service connection for a sinus disability are not met. U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated November 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the October 2010 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The evidence shows that the Veteran currently has diabetes and sinus surgery residuals. The record is missing evidence that an event, injury, or disease occurred in service, and the Veteran's claim is being denied on that basis. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has not obtained an examination with respect to the claims. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Generally, a claim which has been denied in a final unappealed RO decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2014). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). For the purposes of determining whether evidence is new and material, the credibility of new the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Hepatitis B The Veteran filed an original claim of entitlement to service connection for hepatitis B in November 1997. A June 1998 rating decision denied service connection based on a finding of no in-service incurrence. The Veteran did not appeal the June 1998 rating decision. That decision was continued in an August 1998 rating decision. In the August 1998 denial, the RO found no evidence of hepatitis in service, aggravation during service, or manifestation within a reasonable period after service. The pertinent evidence of record at the time of the August 1998 decision included the Veteran's service medical records, which are silent for evidence of hepatitis. The evidence received since the August 1998 denial includes the September 2015 hearing testimony, more recent VA treatment records, and the Veteran's statements of being a hepatitis B carrier. The evidence of record does not show any evidence of hepatitis B in service, or relating any current hepatitis B disability to service. The basis for the prior denial was the absence of evidence of in-service occurrence or aggravation or manifestation within a reasonable period after service. To the extent additional evidence has been added to the record, that evidence is cumulative of evidence of record and shows the Veteran's continued claim for service connection for hepatitis B. None of the additional evidence provides in-service findings of hepatitis B. Therefore, the new evidence does not create a reasonable possibility of an allowance of the claim. The Board finds therefore that the new evidence is not material. The Veteran's assertion that he is a hepatitis B carrier is cumulative of contentions considered at the time of the previous final denial and do not constitute new evidence. In this case, the application to reopen the previously denied claim for service connection for hepatitis B must be denied because none of the new evidence relates to any basis for prior denial or creates a reasonable possibility of an allowance of the claim. To the extent the evidence shows continued reports of current hepatitis B, this evidence is duplicative. As new and material evidence has not been received, the application to reopen the claim must be denied. Although the threshold to reopen is low, that threshold is not met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the claim is not reopened. PTSD An August 1998 rating decision denied service connection for PTSD, based on a finding of no stressors or confirmation of a diagnosis of PTSD due to service. The Veteran did not appeal that decision, and new and material evidence was not received within a year of that decision that would present the claim from becoming final. The pertinent evidence of record at the time of the August 1998 rating decision included the Veteran's service medical records, numerous post-service private treatment records and claim for service connection. The pertinent evidence of record that has been received since the unappealed rating decision includes September 2015 hearing testimony, and an October 2010 VA examination and an August 2014 VA examination addressing the Veteran's current diagnosis of PTSD and history of childhood abuse. The evidence received since the August 1998 rating decision is new and material. This evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact needed to establish service connection by suggesting aggravation of a nonservice-connected disability. Moreover, it raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that reopening of the claim of entitlement to service connection for PTSD is warranted because new and material evidence has been presented. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents during that service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). Certain disorders, including type II diabetes mellitus, associated with herbicide agent exposure in service, may be presumed service connected. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during that service. 38 C.F.R. § 3.307 (2015). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2015). Service in the Republic of Vietnam includes service on the landmass or on the inland waterways. Haas v. Peake, 525 F.3d 1168 (2008). VA has been instructed to reevaluate its definition of inland waterways, including how that definition applies to Da Nang Harbor. Gray v. McDonald, 27 Vet. App. 313 (2015). Since that decision, however, VA has undertaken a review of the classification of Vietnam-era harbors, and there has been no newly discovered evidence or determination that would alter VA's established position that Da Nang Harbor is not an inland waterways for VA purposes. VA Adjudication Procedure manual M21-1, pt. IV, sub pt. II, ch.2, § C.3.m. (change date December 15, 2015). In sum, it is clear that it continues to be official VA policy that service in Da Nang Harbor, in and of itself, does not constitute service in the inland waters of Vietnam for purposes of applying the presumptive provisions of 38 C.F.R. § 3.307, 3.309(e). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he has diabetes mellitus and a sinus disability which was caused by exposure to herbicides while serving on the U.S.S. Oklahoma in Da Nang Harbor off the coast of the Republic of Vietnam. The Veteran testified in September 2015 that his ship ran aground, and that many people went ashore. Upon review of the evidence, the Board finds that the Veteran does not have service in Vietnam, and in-service exposure to herbicides cannot be presumed. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Indeed, the Veteran does not argue that he went ashore in Vietnam, nor does he argue that his ship visited the inland waterways of Vietnam. The Veteran also does not allege that he has ever come in physical contact with an herbicide. The Board recognizes the Veteran's assertion that exposure to herbicides should be presumed based on the fact that his ship ran aground off the coast of Vietnam. A review of the Veteran's service personnel records show that he served aboard the USS Oklahoma City from November 1969 to September 1971. The Board finds the Veteran's testimony as to that occurrence credible and the USS Oklahoma City decks logs confirm the Veteran's statements regarding running aground ON January 18, 1969. That stated, the fact that the Veteran's ship ran aground off the coast of Vietnam does not trigger the presumption of herbicide exposure. That does not show that the Veteran served on the landmass of Vietnam or the inland waterways. It demonstrates that his ship touched the bottom of a body of water, rather than actual landmass of the Republic of Vietnam. The Board also recognizes that the Veteran submitted a letter pertaining to VA medical benefits, suggesting he was "Determined to be a Vietnam-era herbicides-exposed Veteran." While this record may on its face appear to suggest a history of herbicide exposure, there is no evidence that any efforts were undertaken to verify herbicide exposure in conjunction with this VA health eligibility letter. There is no evidence of the criteria used to determine this health eligibility status. The Board finds this evidence not probative and does not trigger the presumption of herbicide exposure. In this case, the presumption of exposure to herbicides does not attach where, as in this case, the Veteran did not have service in the Republic Vietnam or the inland waterways of the Republic of Vietnam or another location where exposure to herbicides can be presumed, and the service records do not otherwise show exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii) (2015). Furthermore, the Veteran has not contended, nor is there any evidence of record, that diabetes mellitus manifested within one year of separation from active service. The service medical records are negative for any indication, complaints, treatment or diagnosis for diabetes mellitus or sinus problems. The September 1971 service discharge examination showed a normal clinical evaluation and there were no significant laboratory findings. Moreover, a review of the private medical records indicates that the Veteran was diagnosed with those disabilities many years following service separation. Therefore, a presumption of service connection as a chronic disease is also not warranted. 38 C.F.R. § 3.309(a) (2015). As with any service connection claim, service connection can be established based on proof of actual causation of the Veteran's diabetes mellitus or sinus disability by an event, injury or disease during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, there is no evidence of record indicating that the Veteran had any of the claimed disabilities during service or for many years after service. Nor is there any competent medical evidence of record showing that the Veteran's disabilities are related to service. The Veteran has stated that diabetes and sinus disability are due to exposure to herbicides in service. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, diabetes mellitus and a sinus disability, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosing diabetes mellitus and sinus disability requires specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and is not susceptible of lay opinions on etiology. Furthermore, the Veteran has not submitted any credible evidence to corroborate the assertion that he was actually exposed to herbicides in service, and if so, the circumstance of that exposure. Therefore, the Board finds that the Veteran's and other lay statements of record cannot be accepted as competent evidence sufficient to establish service connection for type II diabetes mellitus and a sinus disability. They are not sufficient to establish exposure to herbicides in service and they are not competent to diagnose diabetes mellitus or sinus disability and relate it to any event, injury, or disease during service. The Veteran has not submitted any competent evidence relating any of the claimed disabilities to service or to any disease, injury, or event during service. Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for diabetes mellitus and a sinus disability, and those claims must be denied. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has not been presented to reopen the claim of entitlement to service connection for hepatitis B, and the claim remains denied. New and material evidence has been received to reopen a claim of entitlement to service connection for PTSD and to that extent only, the appeal is granted. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a sinus disability is denied. REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. The Board finds that a remand is necessary to obtain a VA medical opinion to address the etiology of his PTSD disability. In a July 2014 VA examination report, the VA examiner noted the Veteran met the criteria for a diagnosis of PTSD based on childhood stressors. The examiner noted that one of the Veteran's identified stressors could be an etiological factor for PTSD. However, it is unclear whether the PTSD was aggravated beyond its normal course by experiences during naval service. On remand, VA should obtain an opinion whether the Veteran's service permanently aggravated any preexisting PTSD disability beyond the natural progress of the disorder. In letters dated March 2014 and June 2015, the Veteran indicated that he was in receipt of Social Security Administration (SSA) disability benefits for his psychiatric disability. VA has a duty to obtain potentially relevant SSA records when it has actual notice that the Veteran is receiving SSA benefits. Golz v. Shinseki, 530 F.3d 1317 (Fed. Cir. 2010). Thus, the SSA decision and the supporting medical documents should be obtained. With regard to the claim of entitlement to TDIU, that claim is inextricably intertwined with his service connection claim on appeal. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including the medical records upon which the any SSA decisions were based. Efforts to obtain these records should be documented, and the SSA should provide a negative response if such records are not available. 2. Schedule the Veteran for a VA examination with a psychologist or psychiatrist for a complete file review and medical opinion. The examiner must note in the report that a file review was conducted. The supporting rationale for all opinions expressed should be provided. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis and state whether or not each criterion for a diagnosis of PTSD is met. (b) If a diagnosis of PTSD is appropriate, state the stressor that resulted in PTSD. (c) Is it clear and unmistakable that PTSD existed prior to the Veteran's entrance to service? If so, is it clear and unmistakable that PTSD was not aggravated during service beyond its natural progression. (d) Is any current psychiatric disability at least as likely as not (50 percent or greater probability) related to active service? 3. Then, readjudicate the claims remaining on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs