Citation Nr: 1751232 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 12-03 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for left ear hearing loss. 2. Whether new and material evidence has been received to reopen a claim for service connection for right ear hearing loss. 3. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disability. 4. Whether new and material evidence has been received to reopen a claim for service connection for a heart disability, to include as due to exposure to herbicide agents. 5. Entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents. 6. Whether new and material evidence has been received to reopen a claim for service connection for anemia, to include as due to exposure to herbicide agents. 7. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder. REPRESENTATION Veteran represented by: Adam Neidenberg, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to February 1971. This appeal is before the Board of Veterans' Appeals (Board) from December 2008 and August 2012 rating decisions of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran testified during a Board hearing in Houston, Texas before the undersigned Veterans Law Judge. A transcript is included in the claims file. In January 2016, the Board remanded the Veteran's appeal with instruction to obtain relevant records, including those from the Social Security Administration. The remand also instructed that a statement of the case be issued with regard to right ear hearing loss. The appropriate records were obtained in April 2016 and January 2017, and a statement of the case was issued in April 2017. The Board is therefore satisfied that the instructions in its January 2016 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. A June 2004 Board decision denied service connection for bilateral hearing loss on the grounds that current hearing loss was not related to service. This decision was not reversed on appeal and thus remains valid and final. 2. Evidence received since the June 2004 final Board decision is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial, i.e., current hearing loss was not related to service. 3. A June 2004 Board decision denied service connection for a left knee disability on the grounds that a left knee disability was not related to service. This decision was not reversed on appeal and thus remains valid and final. 4. Evidence received since the June 2004 final Board decision is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial, i.e., a left knee disability was not related to service. 5. In a December 2008 rating decision, the RO in pertinent part denied the Veteran's claim for service connection for a heart disability. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 6. Evidence received since the December 2008 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for a heart disability, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. 7. A heart disability is not related to service or to exposure to herbicide agents. 8. In an April 2010 rating decision, the RO in pertinent part denied the Veteran's claim for service connection for anemia. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 9. Evidence received since the final April 2010 rating decision is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial, i.e., anemia was not related to service. 10. An acquired psychiatric disability is not related to service. CONCLUSIONS OF LAW 1. Evidence received since a final June 2004 Board decision is not new and material and reopening of the Veteran's claim for entitlement to service connection for left ear hearing loss is therefore not warranted. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1104 (2017). 2. Evidence received since a final June 2004 Board decision is not new and material and reopening of the Veteran's claim for entitlement to service connection for right ear hearing loss is therefore not warranted. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1104 (2017). 3. Evidence received since a final June 2004 Board decision is not new and material and reopening of the Veteran's claim for entitlement to service connection for a left knee disability is therefore not warranted. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. §§ 3.156(a), 20.1100, 20.1104 (2017). 4. Evidence received since a final December 2008 rating decision is new and material; therefore, the Veteran's claim of entitlement to service connection for a heart disability, to include as due to exposure to herbicide agents, is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.156(a), 20.1103 (2017). 5. The criteria for service connection for a heart disability, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 6. Evidence received since a final April 2010 rating decision is not new and material and reopening of the Veteran's claim for entitlement to service connection for anemia, to include as due to exposure to herbicide agents, is therefore not warranted. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.156(a), 20.1103 (2017). 7. The criteria for service connection for an acquired psychiatric disability, to include major depressive disorder, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran has not been provided with VA examinations for his left knee, his heart, his anemia, or his mental health. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained below, the Board finds that there was no event, injury, or disease related to an acquired psychiatric disability or a heart disability that occurred in service, and VA therefore has no duty to provide a medical examination. As to his left knee and anemia, VA's statutory duty to provide a VA examination in a service connection claim that has been previously denied by a final decision does not attach until the claim has been reopened based on the submission of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). As explained below, the appellant has not submitted new and material evidence here and therefore a VA examination or medical opinion is not required. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). There is thus no prejudice to the Veteran in deciding this appeal. Merits The Veteran seeks to reopen claims of service connection. He also seeks service connection for an acquired psychiatric disability. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including arthritis and organic diseases of the nervous system such as sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Hearing Loss The Veteran seeks to reopen previously denied claims for service connection for hearing loss of the right ear and the left ear. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Veteran initially claimed service connection for left ear hearing loss in November 1982. His claim was denied in January 1983, and a subsequent claim to reopen was denied in April 1996. He subsequently claimed service connection for bilateral hearing loss, which was denied in a June 2002 rating decision. The Veteran appealed, and his claim was denied in a June 2004 Board decision based on a finding that any current hearing loss was not of service origin. This decision was not reversed on appeal and thus remains valid and final. 38 U.S.C.A. § 7104(a), (b). VA treatment records reflect that in July 2005 the Veteran reported a subjective mild decrease in hearing. Impacted cerumen was removed from his left ear. In May 2008 he requested his hearing be tested. In a September 2008 statement, the Veteran reported that he was treated for an ear infection while in service and that he had surgery on his ear in 1997. The Veteran underwent a VA examination in June 2010. He was diagnosed with mild to moderate sensorineural hearing loss in both ears. The examiner opined that hearing loss was not related to service. This opinion was based on the rationale that he had normal hearing at enlistment and discharge. In a December 2010 statement, the Veteran reported that he had ear surgery in his left eardrum in which muscle tissue was removed from his skull to patch a hole in his eardrum. In a second December 2010 statement, the Veteran reported that he had earaches as a child and that he had received a letter from VA indicating that he had a 5 percent hearing loss when discharged in 1971. He stated that his ear surgery was in 1997, and that his recent VA examination revealed bilateral hearing loss. VA treatment records reflect that in January 2011 he reported left ear pain. He was diagnosed with hearing loss and ear pain likely a result of temporomandibular joint and Eustachian tube dysfunction. At an April 2011 audiology consultation he was diagnosed with sensorineural hearing loss. His military service was not discussed. In his February 2012 substantive appeal, the Veteran reported that when he separated from service he was told that he had a hole in his left eardrum and 5 percent hearing loss. In an August 2012 statement, the Veteran reported that he had had a hearing problem when released from service. In an April 2015 statement, the Veteran's sister reported that he had an ear infection since his childhood. The Board finds that new and material evidence has not been received to reopen a claim of service connection for hearing loss in either ear. The Veteran's treatment records since the June 2004 final Board decision do not address his military service. The June 2010 VA examiner's opinion finds no relationship with service and therefore does not raise a reasonable probability of substantiating the claim. The Veteran's lay statements are cumulative to those statements on the record prior to the June 2004 final Board decision and are therefore not new and material. The April 2015 statement by the Veteran's sister reports only on ear infections experienced by the Veteran prior to service. As such, it does not indicate a relationship with service and thus does not relate to an unestablished fact necessary to substantiate the claim. For these reasons, the Board finds that new and material evidence has not been received to reopen a claim of service connection for hearing loss in the left ear or the right ear. Left Knee Disability The Veteran seeks to reopen a previously denied claim for service connection for a left knee disability. The Veteran initially claimed service connection for a left knee disability in November 1982. His claim was denied in January 1983, and a subsequent claim to reopen was denied in April 1996. Another claim to reopen was denied in a June 2002 rating decision. The Veteran appealed, and his claim was denied in a June 2004 Board decision based on a finding that new and material evidence had not been submitted to show that his current left knee disability was related to service. This decision was not reversed on appeal and thus remains valid and final. 38 U.S.C.A. § 7104(a), (b). VA treatment records include a March 2005 x-ray which showed a remonstration of severe degeneration. In April 2007 the Veteran reported a longstanding pain in his knees. He was diagnosed with degenerative joint disease. He reported left knee pain again in June 2007, when an x-ray showed progressive findings compared to March 2005. At a July 2007 orthopedic consultation he reported pain since the 1960s and that he was told in service that he would need surgery on his left knee but he never had it. He was diagnosed with degenerative joint disease. He reported knee pain in May 2008. In a September 2008 statement, the Veteran reported that he had been treated for a stiff left knee while serving in Thailand. He stated that he was prescribed painkillers and a wrap. VA treatment records reflect that in November 2010 the Veteran reported pain above and below the left knee. He was diagnosed with chronic knee pain. In his February 2012 substantive appeal, the Veteran reported that he tore a tendon in his left knee in Florida in the spring of 1968. In a March 2012 statement he reported that he had torn a ligament in his left knee in April 1968. At his March 2015 hearing, the Veteran reported that prior to being drafted into service he tore the tendon in his left knee. In an April 2015 statement, the Veteran's sister reported that he walked with a limp when he returned from service. The Board finds that new and material evidence has not been received to reopen a claim of service connection for a left knee disability. The Veteran's treatment records since the June 2004 final Board decision do not address his military service. The Veteran's lay statements are cumulative to those statements on the record prior to the June 2004 final Board decision and are therefore not new and material. Furthermore, his statements indicate that he tore a tendon prior to induction into service. Relating his current disability to an incident that happened prior to service does not indicate a relationship with service and thus does not relate to an unestablished fact necessary to substantiate the claim. The April 2015 statement by the Veteran's sister refers to a limp after service but does not address any relationship to service itself. As such, it does not indicate a relationship with service and thus does not relate to an unestablished fact necessary to substantiate the claim. For these reasons, the Board finds that new and material evidence has not been received to reopen a claim of service connection for a left knee disability. Heart Disability The Veteran seeks to reopen a previously denied claim for service connection for a heart disability. For certain diseases with a relationship to herbicide agent exposure, such as ischemic heart disease, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Additionally, VA has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases. Specifically, veterans who served as perimeter security personnel or otherwise near the perimeter of Royal Thai Air Force Bases may be presumed to have been exposed to herbicides. See M21-1, IV.ii.1.H.5. Absent a presumption, a claimant may establish service connection on a direct basis if the evidence shows that a current disability was, in fact, caused by exposure to herbicide agents or some other incident of service. See Combee v. Brown, F.3d at 1039 (Fed. Cir. 1994). The Veteran's initial claim for service connection for a heart disability was denied in a December 2008 rating decision, based on a finding of no current heart disability. In November 2009, the Veteran filed a notice of disagreement with this decision for the issues of entitlement to service connection for left ear hearing loss, a left knee disability, hepatitis C, and hypertension. This notice of disagreement is the basis of other issues decided in this decision. The Veteran did not, however, express disagreement with the denial of service connection for a heart disability, nor did he submit any evidence within the one-year appeal period. The decision therefore became final. VA treatment records reflect that a November 2009 chest x-ray showed a normal-sized heart. A September 2010 x-ray again showed a normal-sized heart. A March 2011 x-ray again showed a normal-sized heart. In a June 2011 statement, the Veteran reported that while he was serving in Thailand, his Air Force Base was attacked by the enemy striking from a mountain directly across from the base. He stated that the mountain was covered with foliage, and was therefore sprayed with Agent Orange by airplanes 3-5 days after the attack. He stated that he worked with crates of Agent Orange on his base. He attributed his heart disability to this exposure. In August 2012, VA issued a formal finding of a lack of necessary information to corroborate exposure to herbicide agents. VA treatment records reflect that in April 2014 the Veteran reported dyspnea and was referred for testing to determine if he had coronary artery disease. He was subsequently informed by letter that laboratory results showed a small area of induced ischemia within the right coronary artery territory, which could also be related to diaphragmatic attenuation artifact. The letter explained that even if this represented true ischemia, it would be considered a low-risk finding. At his March 2015 hearing, the Veteran reported that he had witnessed the herbicide use on the mountain 100 feet from the air base he was stationed at in Thailand. He then stated that the base itself was also sprayed. He reported that this happened between fall 1969 and early 1970. He stated that his heart disability was related to exposure to herbicide agents. In an April 2015 brief, the Veteran's representative identified the attacks described by the Veteran. An attached excerpt provides history of the five occasions in which NVA sappers penetrated Thailand base perimeters. The only attack on the Veteran's nearest base, U-Tapao Royal Thai Navy Airfield, occurred on January 10, 1972. The Board finds that new and material evidence has been presented. The Veteran's claim for service connection was denied based on a finding of a lack of a current heart disability. The April 2014 letter from VA, presuming all credibility, raises a reasonable possibility that a heart disability has since arisen. As such, new and material evidence has been presented and the Veteran's claim for service connection is reopened. The Board finds, however, that the evidence weighs against a finding that a heart disability is related to exposure to herbicide agents or to service. According to his military personnel records, the Veteran served in Thailand as a petroleum supply specialist. Such a specialty is not one which VA considers as presumptively involving duty on the base perimeter. See M21-1 IV.ii.1.H.5.b. Furthermore, there is no credible evidence that the Veteran's duties otherwise took him to the perimeter of the base. The Veteran described in detail a raid which he states resulted in the use of herbicide agents. Although the Veteran's representative provided evidence that the raid occurred at the U-Tapao base as the Veteran described, it occurred 11 months after the Veteran's separation from service. This undermines the credibility of the Veteran's reports that he saw herbicide agents used. Finally, there is no evidence relating a heart disability to service apart from through exposure to herbicides. For these reasons, the Board finds that the evidence weighs against a finding that a heart disability is related to exposure to herbicide agents or to service. Service connection is therefore denied. Anemia The Veteran seeks to reopen a previously denied claim for service connection for anemia. The Veteran's initial claim for service connection for anemia was denied in an April 2010 rating decision, based on a lack of evidence that anemia occurred in or was caused by service. The Veteran neither appealed this issue nor submitted any new evidence within the one-year appeal period. The decision therefore became final. In an April 2011 statement, the Veteran reported that he was diagnosed with anemia in 2005 and started taking medication in 2010. In a June 2011 statement, the Veteran attributed anemia to reported exposure to herbicide agents in Thailand. At his March 2015 hearing, the Veteran stated that his anemia was related to exposure to herbicides in Thailand. In an April 2015 brief, the Veteran's representative requested remand for a medical opinion as to whether the Veteran's anemia is related to hematuria noted in his service treatment records. The Board finds that new and material evidence has not been received to reopen a claim of service connection for anemia. No medical evidence related to anemia has been submitted. The entirety of the new evidence relating anemia to service consists of the Veteran's assertions that it is related to herbicide agent exposure and his representative's assertion that it is related to in-service hematuria. Neither the Veteran nor his representative is competent to make such assertions because they are not based on personal observation and can only be based on medical expertise. See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011); see also Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (a claimant "is only competent to identify and explain the symptoms that he observes and experiences"). Evidence that is not competent is not admissible, and therefore it is not new and material evidence under 38 C.F.R. § 3.156. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is beyond the competence of the person making the assertion); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (evidence that is not competent is therefore not material). Furthermore, anemia is not among the disabilities which VA recognizes as having a presumptive relationship with exposure to herbicide agents. 38 C.F.R. § 3.309(e). For these reasons, the Board finds that new and material evidence has not been received to reopen a claim of service connection for a left knee disability. Acquired Psychiatric Disability The Veteran claims service connection for an acquired psychiatric disability, to include major depressive disorder. Service treatment records do not reflect any symptoms of or treatment for any acquired psychiatric disability. No psychiatric abnormality was noted at his February 1971 separation examination, and in the accompanying report of medical history the Veteran denied having ever experienced depression, excessive worry, frequent trouble sleeping, frequent or terrifying nightmares, loss of memory, or nervous trouble of any sort. VA treatment records reflect that he had been treated on and off for substance dependence since 1995 including symptoms of depression, but was not given any further diagnosis until a May 2005 emotional and behavioral assessment, where he attributed depression to his use of cocaine, stating that he had not experienced depression until he began to use cocaine. He described his service but stated that he was not in combat and did not relate his service to his mental health. He was diagnosed with depressive disorder as well as alcohol and cocaine dependence in remission. A second psychiatrist suggested that his mood disorder may be substance induced. At a June 2005 follow-up his depression had improved with medication. In May 2008, he reported feeling depressed and that he had relapsed into cocaine and alcohol use. He was diagnosed with cocaine dependence, alcohol dependence, and depression which may have a component of substance-induced depression. At an October 2010 emotional and behavioral assessment, he reported that he had been abused as a child. He again described his military service but did not relate it to his mental health. He was diagnosed with depression that may have a component of substance-induced depression. In December 2010 he reported that while his mood overall had improved with his recent sobriety, he was not euthymic. Later that month he reported having difficulties coping with the recent death of a former girlfriend through experiencing intrusive thoughts. In February 2011 he reported that his depression was not nearly as bad as it was, and that the more he was free of substance abuse the better he felt. Later in the month he reported that he began experiencing nightmares and night sweats associated with violence, with reminiscences to past civilian and military experiences. In June 2011 he had no current symptoms of depression, and his psychiatrist diagnosed depression that had resolved. In October 2011 he reported that he began taking medication when he noticed his mood began to deteriorate, and his psychiatrist diagnosed depression in remission. In his March 2012 claim, the Veteran reported that he had a severe personality disorder, and that he became angry to the point that he injured others. He stated that he was arrested for disorderly conduct more than 20 times between separation from service in February 1971 and June 1972. In April 2012 statements, he claimed depression and reported that he began using drugs and alcohol to excess while in service. In these statements he reported that between February 1971 and June 1972 he was arrested 7 times for assault, disorderly conduct, aggravated assault, and attempted manslaughter. He reported that he had anger issues and drug and alcohol addiction since separation from service. He stated that he was diagnosed with depression in 1995. VA treatment records reflect that in May, September, and December of 2012 the Veteran continued to abstain from alcohol and drugs and remained positive in his mood. His diagnosis of depression in remission was continued. In April 2013 he reported low mood and frustration due to his inability to maintain employment. He was diagnosed with depressive disorder. At his March 2015 hearing, the Veteran reported that he was fired upon when his base in Thailand was attacked. He further stated that he warned a CID investigator that his cover had been blown, and the man was later found dead in a ditch. He stated that these incidents led to his current depression. In an April 2015 brief, the Veteran's representative identified the attacks described by the Veteran as having occurred on January 10, 1972. In an April 2015 statement, the Veteran's sister reported that when he returned from service, he was moody, acted different, kept to himself, and disappeared for periods of time staying away from his family. The Board finds that the evidence weighs against a finding of an in-service event, disease, or injury related to a current acquired psychiatric disability. The Veteran's extensive treatment records repeatedly relate his depression and other symptoms to his substance abuse difficulties. On one occasion in February 2011 he told his therapist that he was experiencing nightmares related to service. His statements lack credibility, however, when describing an in-service event related to his current disability. Despite years of therapy, he never discussed any in-service event with his therapist, and he regularly attributed his mood disorder to his substance abuse or to current grief. Although he described an attack on the base he was stationed at in Thailand, the evidence supplied by his representative in his April 2015 brief clearly shows that this incident took place eleven months after his separation from service. Furthermore, to the extent that the Veteran argues that the evidence suggests that the Veteran's psychiatric disability is secondary to substance abuse which began in service, the Board notes that compensation may not be paid if a disability is the result of a veteran's own willful misconduct, including the abuse of drugs or alcohol. See 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301; see also VAOPGPREC 2-97. For these reasons, the Board finds that the evidence weighs against a finding of an in-service event, disease, or injury related to a current acquired psychiatric disability, and service connection is therefore denied. ORDER New and material evidence has not been received, and the appeal to reopen the claim for service connection for left ear hearing loss is denied. New and material evidence has not been received, and the appeal to reopen the claim for service connection for right ear hearing loss is denied. New and material evidence has not been received, and the appeal to reopen the claim for service connection for a left knee disability is denied. New and material evidence has been presented, and the claim for service connection for a heart disability, to include as due to exposure to herbicide agents, is reopened; the appeal is granted to this extent only. Service connection for a heart disability, to include as due to exposure to herbicide agents, is denied. New and material evidence has not been received, and the appeal to reopen the claim for service connection for anemia, to include as due to exposure to herbicide agents, is denied. Service connection for an acquired psychiatric disability, to include major depressive disorder, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs