Citation Nr: 1751899 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-01 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for diabetes mellitus to include as secondary to herbicide exposure. 2. Entitlement to service connection for a heart disability to include as secondary to herbicide exposure. 3. Entitlement to service connection for hypertension to include as secondary to herbicide exposure. 4. Entitlement to service connection for prostate cancer to include as secondary to herbicide exposure. 5. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disability to include severe psychotic depression and/or posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for an acquired psychiatric disability to include severe psychotic depression and/or posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1961 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). This case is now under the jurisdiction of the Atlanta, Georgia RO. In November 2016, the Veteran presented sworn testimony during a video-conference Board hearing in Atlanta, Georgia, which was presided over by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for psychiatric disorders encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has redefined the Veteran's psychiatric appeal, as is listed on the title page of this decision. The issue of service connection for hypertension to include as secondary to diabetes is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran was in Vietnam during his active service. 2. The Veteran has been diagnosed with diabetes. 3. The Veteran has been diagnosed with prostate cancer. 4. The Veteran has been diagnosed with coronary artery disease. 5. In an unappealed August 2008 rating decision, the RO denied service connection for an acquired psychiatric disability based there was no evidence of in service incurrence of an acquired psychiatric disability. 6. The evidence added to the record since the August 2008 rating decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for an acquired psychiatric disability. 7. Affording the Veteran the benefit of the doubt, his acquired psychiatric disability is at least as likely as not related to his active service. CONCLUSION OF LAW 1. The criteria for service connection for diabetes due to herbicide exposure 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(e) (2016). 2. The criteria for service connection for prostate cancer, due to herbicide exposure 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(e) (2016). 3. The criteria for service connection for coronary artery disease, due to herbicide exposure 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(e) (2016). 4. The February 2004 rating decision denied service connection for an acquired psychiatric disability is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2016). 5. With respect to the Veteran's claim for service connection for an acquired psychiatric disability, new and material evidence has been received since the February 2004 denial. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.158 (2016). 6. The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). In the instant decision, the Board is granting the Veteran's claims. Therefore, even if VA did not meet its duty to notify and assist in this case, such error is harmless and no further discussion is necessary. Presumptive Service Connection - Certain Herbicide Agents For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. §1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). 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. Id. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the disabilities listed under 38 C.F.R. § 3.309 (e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(ii) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). For the purposes of presumptive herbicide exposure, service in Vietnam requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii). Instead, it requires service on the landmass and includes service on the inland waterways. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (finding valid VA's interpretation that grants the presumption of exposure to Agent Orange to a Veteran who set foot in Vietnam or served on a vessel that traveled on inland waterways of Vietnam, but not to a Veteran who served on a vessel in the waters off the coast of Vietnam without setting foot in, or travelling along the inland waterways of Vietnam). Merits The Veteran contends that while serving aboard a U.S. Naval vessel, the vessel found respite in inland waterways of Vietnam. The Veteran has a diagnosis of diabetes from a May 2017 private treatment note, a diagnosis of prostate cancer from a July 2017 correspondence from a private examiner, and a diagnosis of coronary artery disease from a September 2011 Ischemic Heart Disease Disability Benefits Questionnaire. Turning to elements of incurrence and nexus, the Board notes that it is a historical fact that the Veteran's naval vessel operated along the coastline of Vietnam. The fact in dispute is whether the vessel entered Vietnam for respite while operating along the coast. On this matter, the Board finds that the Veteran's naval vessel entered the inland waterways of Vietnam while serving along the coast of Vietnam. In so finding, the Board finds that the Veteran's detailed testimony to be credible and probative on the movements of the naval vessel while along the coast of Vietnam. The Veteran is competent to report where he was at what time; moreover, the Board finds that this testimony is credible. Considering the foregoing, the Board finds that the Veteran did enter into Vietnam and thus, the presumption of exposure to certain herbicides is conceded and furthermore, the presumption of service connection to diabetes, prostate cancer and coronary artery disease from this presumed exposure is conceded. 38 C.F.R. §§ 3.307, 3.309 (2017). Thus, service connection for diabetes, prostate cancer, and coronary artery disease on a presumptive basis is warranted. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (whether new and material evidence has been submitted must be asked and answered by the Board de novo whenever a claim to reopen is filed). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Merits - New and Material Evidence The Veteran was denied service connection for an acquired psychiatric disability in a February 2004 rating decision because there was no evidence that the Veteran's acquired psychiatric disability was incurred in service. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a); Shade v. Shinseki, supra. The Veteran's testimony in November 2016 that he had symptoms of mental illness while on active duty and the March 2013 private psychiatric evaluation are new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for an acquired psychiatric disability. Specifically, due to the prior lack of evidence showing of treatment during the Veteran's service, this new evidence is material because it relates to an element that was previously not shown, an in-service incurrence. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for an acquired psychiatric disability to include severe psychotic depression is reopened. 38 U.S.C.A. § 5108. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Merits With regard to in service incurrence of a psychiatric disability, the Veteran testified in his November 2016 hearing that he had experienced a severe storm while in the Navy and that this storm induced a severe mental trauma to the Veteran that he has suffered from since that time. The Board finds this testimony to be credible and that the Veteran is competent to report such symptoms. Regarding a nexus, the Board observes that the Veteran treating psychiatrist provided a March 2015 psychiatric evaluation wherein he wrote that the Veteran's severe psychotic depression were caused by his psychological trauma caused by an a storm while aboard his navy vessel. The Board again observes that mental symptoms are subjective and the type of condition to which lay testimony is competent. It finds the Veteran's assertions concerning his diagnosis and continuity of mental difficulty symptomatology since service to be consistent and credible. See Caluza v. Brown, 7 Vet. App. 498 (1995). It is also plausible that the Veteran has suffered from this mental illness since his separation from active service. The Board finds the statements of the Veteran concerning in-service symptoms of mental illness, as well as continuity of such symptomatology since service, to be credible. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). In view of the totality of the evidence, including the Veteran's credible testimony and the March 2015 psychiatric evaluation, the Board finds that providing the Veteran with the benefit of any reasonable doubt his acquired psychiatric disability, to include severe psychotic depression was incurred during service. 38U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for diabetes mellitus is granted. Service connection for prostate cancer is granted Service connection for coronary artery disease is granted Service connection for psychiatric disability, to include severe psychotic depression is granted. REMAND The Veteran asserts that his hypertension was caused by his diabetes mellitus; this disability is now service connected, but there is no opinion as a relationship between this disability and his hypertension. As such, the Board finds that an opinion should be obtained before adjudication can proceed. The Board thus finds that an examination of this claimed condition is needed to determine if there is any relationship with the Veteran's service connected diabetes. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the Board notes that the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010 (2010 Update) concluded that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension. See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011) at 694. The Secretary discussed the 2006, 2008, and 2010 Updates-which contain the same analysis with respect to hypertension-in the Federal Register. See e.g. 77 Fed. Reg. 47,924 -01 (Aug. 10, 2012) (noting "[i]n Veterans and Agent Orange: Update 2006 . . . and Update 2008, NAS elevated hypertension to the 'Limited or Suggestive Evidence' category"); 75 Fed. Reg. 32,540, 32,549 (June 8, 2010) ("In Update 2006, NAS concluded that there was 'limited or suggestive evidence of an association between exposure to the compounds of interest and hypertension.'"); 75 Fed. Reg. 81,332, 81,333 (NAS, in 2008, categorized certain health outcomes, including hypertension, to have "'limited or suggestive evidence of an association." This category is defined to mean that evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence."). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Schedule the Veteran for an appropriate VA examination(s) with an appropriate VA examiner(s) to determine the etiology of the Veteran's hypertension. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. (A). After taking a detailed history from the Veteran regarding his hypertension and considering the pertinent information in the record in its entirety, the VA examiner should opine whether it is at least as likely as not, i.e. 50 percent probability or greater, that the Veteran's hypertension was caused or aggravated by the Veteran's service connected diabetes or is otherwise etiologically related to the Veteran's active service. (B). The RO should obtain an opinion from the appropriate medical professional as to whether the Veteran's hypertension is related to his exposure to Agent Orange in service. The claims folder should be reviewed and that review should be indicated in the examination report. The rationale for all opinions should be provided. Specifically, the examiner should provide the following information: Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the hypertension is etiologically related to the Veteran's in-service exposure to herbicides. The Veteran in this case served in Vietnam and is thus presumed to have been exposed to herbicides in service. The examiner is asked to consider the latest findings from the National Academies of the Sciences updates to Agent Orange regarding whether there is a relationship between the Veteran's hypertension and exposure to herbicides (Agent Orange). The examiner must explain the rationale for all opinions given, citing to supporting factual data and medical literature as deemed appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs