Citation Nr: 1639039 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 11-15 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for diabetes mellitus (DM), to include as a result of exposure to Agent Orange. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for ischemic heart disease, to include coronary artery disease (CAD), including as a result of exposure to Agent Orange. 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD) and dysthymic disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and T.R. ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of May 2010 and September 2011 rating decisions of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). A claim of service connection for PTSD may encompass claims of service connection for other diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the issue to comport with the evidence of record. The RO has adjudicated the claim to reopen service connection for ischemic heart disease on a de novo basis. However, to establish jurisdiction over this issue, the Board must first consider whether new and material evidence has been received to reopen the claim. See 38 U.S.C.A. §§ 5108, 7105. The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. In June 2016, a Travel Board hearing was held. At the hearing, the Veteran submitted additional evidence and waived initial RO review of the evidence. See 38 C.F.R. § 20.1304(c) (2015). FINDINGS OF FACT 1. In an unappealed October 2005 rating decision, the RO denied the claim of entitlement to service connection for DM because it found that there was no evidence that the Veteran was exposed to herbicides or that his diagnosed DM occurred in service or was a result of service or any incident therein. 2. The evidence received since the October 2005 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for DM, to include evidence of the Veteran's exposure to herbicides during his service in Thailand during the Vietnam War. 3. In an unappealed October 2005 rating decision, the RO denied the claim of entitlement to service connection for ischemic heart disease, identified at the time as CAD, because it found that there was no evidence that it occurred in service or was a result of service or any incident therein. 4. The evidence received since the October 2005 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for ischemic heart disease, to include evidence of the Veteran's exposure to herbicides during his service in Thailand during the Vietnam War. 5. The evidence reflects that the Veteran was exposed to herbicides while on active duty at Royal Thai Air Force Base (RTAFB) at U-Tapao, Thailand, from January 1972 to August 1973. 6. DM is related to military service. 7. Ischemic heart disease, diagnosed as CAD, is related to military service. 8. Resolving reasonable doubt in the Veteran's favor, his currently diagnosed dysthymic disorder is related to his service. 9. The evidence of record, on balance, indicates that the Veteran does not have PTSD. CONCLUSIONS OF LAW 1. The October 2005 RO decision, which denied the Veteran's claim of entitlement to service connection for DM, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for DM. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The October 2005 RO decision, denying the Veteran's claim of entitlement to service connection for ischemic heart disease, diagnosed as CAD, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for ischemic heart disease, to include CAD. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 5. The criteria for service connection for DM have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 6. The criteria for service connection for ischemic heart disease, including diagnosed CAD, have been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 7. The criteria for service connection for a dysthymic disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). 8. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). A standard July 2009 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment and personnel records have been obtained. Post-service VA and private treatment records have also been obtained. The Veteran was provided VA medical examinations in April 2010 and October 2010. The examinations, along with the expert medical opinions, are sufficient evidence for deciding the claims. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain a reasoned explanation. Thus, VA's duty to assist has been met. II. Analysis New and Material Evidence The Veteran is seeking to reopen his claims of entitlement to service connection for DM and ischemic heart disease, to include diagnosed CAD. His claims for service connection for both disabilities were initially denied by an October 2005 rating decision. The DM claim was denied on the basis that there was no evidence of exposure to herbicides in service and no objective evidence of any such disability in service or any evidence etiologically linking it to his service. The ischemic heart disease claim was denied on the basis that there was no objective evidence of any such disability in service or any evidence etiologically linking it to his service. See generally, 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). The Veteran did not appeal the October 2005 rating decision. New and material evidence was not received within the time in which to appeal the October 2005 decision. See 38 C.F.R. § 3.156(b) (2015). Thus, the October 2005 decision is final as to the denial of service connection for DM and ischemic heart disease, previously identified as CAD. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). The RO received the Veteran's instant request to reopen his claims of entitlement to service connection for DM and ischemic heart disease, in May 2009. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2014). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Regulations do not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Rather, the Board must focus on whether the evidence, taken together with evidence of record, could at least trigger the duty to assist by providing a medical opinion. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence submitted since the October 2005 rating decision includes lay statements and testimony before the undersigned indicating service near the perimeter of the base at U-Tapao RTAFB, Thailand, during the Vietnam era. This evidence is new as it was not of record at the time of the final October 2005 rating action. It is also material because it relates to an unestablished fact necessary to substantiate the underlying claims for service connection for DM and an ischemic heart disease, to include CAD, namely evidence relating to the onset of this disorder, to include his exposure to Agent Orange on an airbase in Thailand. On review, the Board finds this evidence to be new and material. See 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Thus, the claims for service connection for DM and ischemic heart disease, including CAD, to include as due to exposure to Agent Orange are reopened. Service Connection The Veteran seeks service connection for DM and ischemic heart disease, diagnosed as CAD, to include as due to Agent Orange exposure. He also seeks service connection for a psychiatric disorder, identified as PTSD, as a result of his service. He contends he has PTSD as a result of a traumatic experience in service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. DM and Ischemic Heart Disease VA regulations provide that, if a veteran served in Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicides during such service. Further, certain diseases, including DM and ischemic heart disease, which includes CAD, will be presumed service-connected due to such exposure, even if there is no record of the disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In May 2010, VA published a "Compensation & Pension (C&P) Service Bulletin" which establishes "New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea." In explaining the need for the new procedures, the bulletin noted that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. VA has determined that a special consideration of herbicide exposure on facts found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. It was noted that the majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. It was also noted that if a US Air Force Veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicides exposure should be acknowledged on a facts found or direct basis. This applies only during the Vietnam Era, from February 28, 1961 to May 7, 1975. (See May 2010 C&P Service Bulletin; Project CHECO Southeast Asia Report: Base Defense in Thailand; see also VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 2, Section C). This allows for presumptive service connection of the diseases associated with herbicide exposure. The Veteran contends that he is entitled to service connection for DM and ischemic heart disease due to herbicide exposure during his service in Thailand. Specifically, he alleges that he was exposed to herbicides while stationed at the RTAFB at U-Tapao, Thailand. VA and private treatment records show the Veteran has current diagnoses of DM and ischemic heart disease, including CAD. The Veteran's service personnel records reflect that his military occupational specialty was an electronic warfare systems specialist or radio repairman and that he was stationed at the U-Tapao RTAFB from October 1972 to August 1973. At his June 2016 Board hearing, the Veteran testified that his daily work duties were in areas very near the perimeter of the U-Tapao RTAFB, in his workshop and the roads accessing the runways. He also testified that herbicides were sprayed in the area where his barracks were located. Finally, the Veteran testified that he may have been exposed to herbicides when he went on a mission to Da Nang, Vietnam in January 1973, to retrieve a disabled plane. In this case, while his service at U-Tapao RTAFB is verified by his personnel records, the Veteran's proximity to the perimeters at both bases has not been directly corroborated by his service personnel records. Nor can it be verified that the Veteran was exposed to herbicides from spraying near the barracks on base. The Veteran's testimony regarding his alleged trip to Da Nang, Vietnam to retrieve a disabled plane also cannot be verified by his personnel records. However, the Board finds the Veteran's written statements and testimony, in conjunction with the personnel records and performance evaluations noting his knowledge as a flight-line technician and his duties to inspect and maintain both assigned and transient aircraft systems, when considered in light of the circumstances of his service, to be credible. The Veteran has consistently maintained that his daily work assignments were performed in an area near the perimeter and that he drove on roads to the runways on roads on the perimeter at U-Tapao RTAFB. Despite no official evidence that the Veteran was in close proximity to the perimeter of the base, the Board finds the Veteran's testimony that he worked in close proximity to the perimeter on a daily basis to be credible. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that he as likely as not was near the air base perimeter of U-Tapao RTAFB on a near daily basis during the Vietnam Era while on active duty. In light of the Board's determination that he was on or near the air base perimeter on a near daily basis at the U-Tapao RTAFB during the requisite period, the Veteran is presumed to have been exposed to herbicides, and there is no affirmative evidence to the contrary. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. The Veteran has current diagnoses of DM and CAD, which appear to be to a compensable degree. Accordingly, as there is no affirmative evidence to the contrary, service connection for DM and CAD as presumptively due to herbicides exposure is warranted. Psychiatric Disorder The Veteran contends that he has PTSD as a result of his experience trying to rescue a crew of a plane that crash landed at his air base in December 1972. Several of the crew members died at the time. An April 2010 VA memorandum indicates this stressor is verified or conceded. In addition to the general criteria for service connection, service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2015). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A January 1970 service treatment record shows the Veteran was seen for episodic periods of increased anxiety, that was somewhat improved. A January 1976 Medical History report shows the Veteran indicated he had nervous trouble; however, the accompanying separation psychiatric clinical evaluation was normal. Post-service VA and private treatment records show the Veteran reported taking medication for depression and anxiety during a March 1981 VA examination. Records further reflect assessments of MDD as early as May 1993, dysthymic disorder in September 2009, and PTSD in November 2009. Treatment records also reflect findings of other psychiatric disorders including anxiety disorder and alcohol and drug dependence in remission. An April 2010 VA examination report indicates diagnoses of dysthymic and anxiety disorders. In October 2010, the Veteran underwent a VA examination conducted by a psychiatrist. The examiner concluded that the Veteran's symptoms did not fully meet the criteria for a PTSD diagnosis. The Veteran was diagnosed with alcohol dependence in full remission, amphetamine dependence in full remission and dysthymic disorder. The examiner opined that although it was not believed that the Veteran's inservice exposure to trauma caused his current emotional symptoms, his combat experience in Thailand, as well as other factors, is associated with his chronic depressive symptoms. During the June 2016 Board hearing, the Veteran testified that when he returned to the States after service, he was angry all the time and drank a lot. He had difficulty keeping relationships and believed the VA examiner was biased in evaluating him for PTSD. The evidence is at least in equipoise as to the onset of the Veteran's depressive and anxiety symptoms, most recently attributed to diagnosed dysthymic disorder. In any event, the October 2010 VA examiner etiologically links the Veteran's traumatic experiences in service to his current psychiatric disorder, finding that while the trauma did not cause his disability, it (with other factors) could be "associated" with the current disability. Resolving all reasonable doubt in the Veteran's favor, service connection for a dysthymic disorder is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection is not, however warranted for PTSD. A diagnosis of PTSD is not shown in service treatment records. Although the April 2010 and October 2010 VA examiners' opinions that the Veteran did not meet the criteria for a diagnosis of PTSD are at odds with the VA treatment records as early as 2009, the Board finds the October 2010 VA examiner's opinion more probative as it is supported by adequate rationale and based on the professional judgment of the physician and an in-person evaluation of the Veteran as well as psychological test results. A very detailed explanation is provided for this determination. In contrast, the VA treatment records do not provide detailed rationale for the opinions that the Veteran met the criteria for a diagnosis of PTSD. Although the VA treatment records showing a PTSD diagnosis are probative evidence of a current disability, the most probative medical evidence of record does not find that the Veteran meets all the criteria for a PTSD diagnosis. This is so for the pendency of the claim. Without sufficient evidence that the Veteran has PTSD, the claim must be denied. Brammer, 3 Vet. App. at 225. In sum, while service connection is warranted for a dysthymic disorder, the preponderance of the evidence is against the specific claim of service connection for PTSD; there is no doubt to be resolved; and service connection for PTSD is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the claim of service connection for DM is reopened. New and material evidence having been received, the claim of service connection for ischemic heart disease, to include CAD, is reopened. Service connection for DM is granted. Service connection for ischemic heart disease, to include CAD, is granted. Service connection for dysthymic disorder is granted. Service connection for PTSD is denied. ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs