Citation Nr: 1754520 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-29 374 ) DATE ) ) On appeal from the Department of Veterans Affairs St. Paul Pension Management Center in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for sleep apnea. 2. Whether new and material evidence has been received to reopen a claim of service connection for insomnia, to include as due to Agent Orange exposure. 3. Whether new and material evidence has been received to reopen a claim of service connection for papillary carcinoma of the thyroid, to include as due to Agent Orange exposure. 4. Entitlement to service connection for papillary carcinoma of the thyroid, to include as due to Agent Orange exposure. 5. Entitlement to service connection for squamous cell carcinoma of the high esophagus, to include as due to Agent Orange exposure. 6. Whether new and material evidence has been received to reopen a service connection claim for an acquired psychiatric disorder, to include depression, anxiety, and posttraumatic stress disorder (PTSD). 7. Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and posttraumatic stress disorder (PTSD). 8. Entitlement to service connection for cause of the Veteran's death. 9. Entitlement to a total disability rating on the basis of individual unemployability (TDIU). ORDER New and material evidence not having been received, the Veteran's application to reopen the previously denied claim for entitlement to service connection for sleep apnea, is denied. New and material evidence with respect to the claim of service connection for papillary carcinoma of the thyroid has been received, that claim is reopened, and to this limited extent, the appeal of that issue is granted. New and material evidence not having been received, the Veteran's application to reopen the previously denied claim for entitlement to service connection for insomnia is denied. New and material evidence with respect to the claim of service connection for an acquired psychiatric disability, to include PTSD, having been received, that claim is reopened, and to this limited extend, the appeal of that issue is granted. FINDINGS OF FACT 1. The Veteran's claim for service connection for sleep apnea was denied in an October 2009 rating decision; the Veteran did not perfect an appeal. 2. The evidence submitted since the October 2009 rating decision, pertinent to the claim for service connection for sleep apnea is either cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 3. The Veteran's claims for service connection for papillary carcinoma of the thyroid and insomnia were denied in a November 2011 rating decision; the Veteran did not perfect an appeal. 4. The evidence submitted since the November 2011 rating decision, pertinent to the claim for service connection for papillary carcinoma of the thyroid is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 5. The evidence submitted since the November 2011 rating decision, pertinent to the claim for service connection for insomnia is cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 6. The Veteran's claim for service connection for PTSD was denied in an August 2001 rating decision; the Veteran did not perfect an appeal. 7. The evidence submitted since the August 2001 rating decision, pertinent to the claim for service connection for PTSD, is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Evidence submitted since the October 2009 denial is not new and material and the claim for service connection for sleep apnea, is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). 2. Evidence submitted since the November 2011 denial is new and material and the claim for service connection for papillary carcinoma of the thyroid is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). 3. Evidence submitted since the November 2011 denial is not new and material; and the claim for service connection for insomnia is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). 4. Evidence submitted since the August 2001 denial of service connection for PTSD is new and material and the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to November 1971. He died in January 2013. The Appellant is his surviving spouse and has been substituted as a claimant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) St. Paul Pension Management Center in St. Paul, Minnesota. The Appellant appeared at a Board hearing before the undersigned in November 2016. The Board acknowledges that, in a May 2013 rating decision and a September 2013 supplemental statement of the case adjudicating the issue of entitlement to a TDIU, the RO adjudicated claims for increased ratings for bilateral hearing loss, tinnitus, and hemorrhoids as "intrinsically intertwined" with the TDIU claim on appeal, received August 15, 2012. The RO subsequently certified all four issues to the Board. The Appellant filed a notice of disagreement with the RO's May 2013 rating decision adjudicating those increased rating issues. However, other than a claim for a TDIU, there were no pending increased ratings claims at the time of the Veteran's death. The Appellant can only step into the Veteran's shoes for purposes of completing the claims pending at the time of the Veteran's death. The Appellant cannot file new claims other than claims she is eligible for as the widow of the deceased Veteran, such as entitlement to service connection for the cause of death. Therefore, the Board does not have jurisdiction over the issues of entitlement to increased ratings for bilateral hearing loss, tinnitus, and hemorrhoids and has not included them in the current appeal. See 38 C.F.R. § 3.1010 (f)(2). Claims for service connection for psychiatric disabilities may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the psychiatric disorder issue on appeal. 1. New and Material Evidence VA may reopen and review a previously denied claim if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108 (West 2014). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims held in Shade v. Shinseki that the language of 38 C.F.R. § 3.156 (a) creates a low threshold to reopen, and emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." 24 Vet. App. 110, 120-21 (2010). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). For purposes of the new and material analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). A. Sleep Apnea In this case, service connection for sleep apnea was denied in an October 2009 rating decision because, although the Veteran had a current diagnosis of obstructive sleep apnea, service treatment records were silent for complaints of or treatment for sleep apnea and the evidence did not reflect that the Veteran's sleep apnea was related to service. The Veteran was notified of the decision and his appellate rights, but he did not appeal. New and material evidence was also not received within one year of the determination. Therefore, the decision became final. 38 U.S.C.A. § 7105 (c)(West 2014); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2017). Prior to the October 2009 denial, the evidence of record included the Veteran's service treatment records (STRs), VA and private treatment reports. Since October 2009, the evidence included a December 2011 private treatment record, which showed the Veteran had a diagnosis of obstructive sleep apnea. The evidence received since the October 2009 denial is not new and material. The Veteran did not submit any other medical or lay evidence with respect to his claim for sleep apnea. Although the Veteran submitted additional evidence showing a diagnosis of obstructive sleep apnea, the existence of the disability had already been established at the time of the prior denial. Therefore, such evidence is cumulative. There is no evidence showing that the Veteran had sleep apnea that manifested in service or is otherwise related to military service. Because the evidence submitted since the last final decision is cumulative and/or does not relate to an unestablished fact necessary to substantiate the claim for service connection, the Veteran did not submit new and material evidence on this matter. Thus, the Board concludes that new and material evidence has not been received to reopen the claim for service connection for sleep apnea. B. Papillary Carcinoma of the Thyroid In this case, service connection for thyroid cancer was denied in a November 2011 rating decision because, although the Veteran had a current diagnosis of thyroid cancer, STRs were silent for complaints of or treatment for thyroid cancer and the evidence did not reflect that the Veteran's thyroid cancer was related to service or presumed herbicide exposure therein. The Veteran was notified of the decision and his appellate rights, but he did not appeal. New and material evidence was also not received within one year of the determination. Therefore, the decision became final. 38 U.S.C.A. § 7105 (c)(West 2014); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2017). Prior to the November 2011 denial, the evidence of record included the Veteran's STRs, VA treatment records, and private treatment reports. VA and private treatment records reflected that the Veteran had a history of thyroid cancer and underwent a total thyroidectomy with a post-operative diagnosis of papillary carcinoma. Since November 2011, the evidence included VA and private treatment records, as well as a January 2013 General Medical DBQ continuing to show complaints of and treatment for papillary squamous carcinoma of the thyroid. In addition, the Appellant has submitted an "endocrine web" online medical article suggesting a relationship between thyroid disease and Agent Orange exposure. Given this additional evidence submitted by the Appellant, the Board finds that new and material evidence has been submitted and that the claim for service connection for papillary squamous carcinoma of the thyroid is reopened. The reopened claim will be addressed in the REMAND section of the decision below. C. Insomnia In this case, service connection for insomnia was denied in a November 2011 rating decision because not only were STRs silent for complaints of or treatment for insomnia, the evidence did not reflect that the Veteran had a current diagnosis of insomnia. The Veteran was notified of the decision and his appellate rights, but he did not appeal. New and material evidence was also not received within one year of the determination. Therefore, the decision became final. 38 U.S.C.A. § 7105 (c)(West 2014); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2017). Prior to the November 2011 denial, the evidence of record included the Veteran's STRs, VA treatment records, and private treatment reports. Since November 2011, the evidence included VA and private treatment records, as well as a December 2015 statement by the Appellant, stating that the Veteran had insomnia. The Board finds that the evidence received since the November 2011 rating decision although new, is not material in that it does not raise a reasonable possibility of substantiating the claim. The evidence added to the record is cumulative of the evidence previously considered. The Appellant's December 2015 lay statement reiterates the Veteran's report of having insomnia, a fact which was before the RO at the time of the November 2011 denial. Moreover, additional treatment records are silent as to any complaints of or treatment for insomnia. While this evidence is considered new because it was not of record and considered in the prior denial, it is not material to the Veteran's claim because it does not show a currently diagnosed disability. In other words, the newly submitted evidence does not address an element of the claim that was previously lacking. Thus, the Board finds that the new evidence is not material because it does not substantiate a fact necessary to establish that the Veteran has insomnia that was incurred in or aggravated in service. Accordingly, having determined that new and material evidence has not been submitted, the claim for service connection for insomnia is not reopened. D. Psychiatric Disability In this case, service connection for PTSD was denied in an August 2001 rating decision. The Veteran was notified of the decision and his appellate rights, and he filed a notice of disagreement, but he did not perfect an appeal. Moreover, new and material evidence was also not received within one year of the determination. Therefore, the decision became final. 38 U.S.C.A. § 7105 (c)(West 2014); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2017). At the time of the August 2001 denial, the evidence did not show the Veteran had a psychiatric disability related to service. However, after August 2001, the record includes new medical evidence, including a VA examination report, which addresses the Veteran's psychiatric diagnoses and their potential relationship to military service. Thus, the Board finds that new and material evidence has been submitted and that the claim for service connection for a psychiatric disability is reopened. The reopened claim will be addressed in the REMAND section of the decision below. REMAND VA and private treatment records reflect that the Veteran had a history of thyroid cancer and underwent a total thyroidectomy with a post-operative diagnosis of papillary carcinoma. Private treatment records further reflect that the Veteran had squamous cell carcinoma of the high esophagus. The Appellant contends that the Veteran's death was related to his service. Specifically, she contends that the Veteran died from cancer that was caused by exposure to herbicides during his service in the Republic of Vietnam. According to the Veteran's death certificate, the Veteran died in January 2013 at age 62. The immediate cause of death was aspiration pneumonia. The underlying cause was head and neck cancer. At the time of his death, the Veteran had been awarded service connection for bilateral hearing loss, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and hemorrhoids, rated as 10 percent disabling. Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly autopsy reports. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). Service connection for certain diseases enumerated in 38 C.F.R. § 3.309 (e), may be established as presumptively due to herbicide exposure during service in the Republic of Vietnam from January 9, 1962, to May 7, 1975. 38 C.F.R. § 3.307 (a)(6)(i). Once it is established that a claimant has been exposed to herbicides, a listed disease will be presumed service-connected due to herbicide exposure during service if it manifests to a compensable degree at any time, even though there was no record of such disease during service. 38 C.F.R. §3.309 (e). The Veteran qualified for this presumption based on his service in the Republic of Vietnam during his period of active duty. Military personnel records show he served in Vietnam and his DD 214 shows a Vietnam Service Medal and Vietnam Campaign Medal. Thus, his in-service exposure to herbicides is conceded. The following diseases are deemed associated with herbicide exposure, under VA law: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). With regard to cancer, "[p]resumptive service connection may not be established under 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a) for a cancer listed in 38 C.F.R. § 3.309 (e) as being associated with herbicide exposure, if the cancer developed as the result of metastasis of a cancer which is not associated with herbicide exposure." VAOPGCPREC 18-97 (May 2, 1997); Darby, 10 Vet. App. at 246 (presumption of service connection for lung cancer was rebutted by medical evidence showing that the stomach was the primary site of the cancer, which metastasized to the lungs); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F. 3d. 1239 (Fed. Cir. 1997); cert den., 522 U.S. 1151 (1998) (presumptive service connection refers to the primary cancer site and not a metastatic site). Based on the above, the Board finds it necessary to obtain an opinion from a qualified examiner regarding the nature and etiology of the Veteran's squamous cell carcinoma of the high esophagus. In addition, the Appellant has submitted an "endocrine web" online medical article suggesting a relationship between thyroid disease and Agent Orange exposure. Therefore, the Board also finds it necessary to obtain an opinion from a qualified examiner regarding the nature and etiology of the Veteran's papillary carcinoma of the thyroid. Acquired Psychiatric Disorder The Veteran contended and the Appellant contends that he had a psychiatric disorder, to include depression, anxiety, and PTSD as a result of experiences during his service. In April 2009, the Veteran underwent a psychiatric evaluation with the VA Readjustment Counseling Service. Diagnostic impression of Veteran was that he had been suffering the effects symptoms of PTSD since his return from Vietnam. His condition fluctuated and presently his anxiety and depression had increased. He had been referred to his physician for further evaluation. The Veteran took medication prescribed by the VA Behavioral section. The Veteran was afforded a VA PTSD examination in August 2011. The examiner found that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria based on the current evaluation. Rather, the Veteran received an axis I diagnosis of polysubstance dependence, sustained full remission (by history) and a diagnosis of adult antisocial behavior. The examiner explained, "given the Veteran's invalid responses on the MMPI-2 administered on 08/25/2011 and Veteran's scores on the Tombaugh's Test of Memory Malingering the veracity and reliability of Veteran's symptoms are questionable. These test results cast serious doubt upon the accuracy of the Veteran's presentation and reported psychological problems on this date. This may explain why Veteran's total score on the PCL is above the cut-off score for assigning a diagnosis of PTSD but the Veteran's CAPS total score is well below the cut-off total score for identifying PTSD cases with high levels of certainty. For those reasons and observations gleaned from the examinations, it is the opinion of this examiner that the Veteran does not meet the criteria for posttraumatic stress disorder and therefore there is no service-connected PTSD." In January 2013, the Veteran underwent a General Medical DBQ where it was noted that he had a mental disorder other than PTSD, to include mildly flat affect indicating depression. An etiology opinion was not provided. In a December 2015 statement by the Appellant, she wrote about the many experiences she remembered her husband going through since meeting him in 1975. The Appellant expressed that the Veteran had horrible nightmares and flashbacks and that he would wake up in the middle of the night crying, sweating, and restless. She stated that "he used to feel so desperate; he started to take in alcohol as his way to cope. He felt so angry towards himself and others he would take it out on me." She also related that the Veteran shared with her that he went through some horrible experiences mentally and physically that really hurt him and "although, he never talked about them, [she] knew he was traumatized by just simply the way he would wake in the middle of the night and he was haunted by those nightmares." As stated in the May 2013 rating decision, "a review of our claim records shows that we were unable to set up a mental examination prior to the Veteran's death." Consequently, the Board finds that remand is necessary to obtain a VA medical opinion as to whether the Veteran had an acquired psychiatric disorder that related to service. TDIU The claim of entitlement to a TDIU is inextricably intertwined with the issues currently being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). As such, the Board defers ruling on this matter until after the mandates of the Remand have been completed. Accordingly, the case is REMANDED for the following action: 1. Submit the claims file to an oncologist or other appropriate physician/specialist in order to determine whether the Veteran's squamous cell carcinoma of the high esophagus is caused by or otherwise the result of his military service, to include his conceded herbicide exposure therein. The examiner should specifically opine as to the following: (a) Whether the Veteran's squamous cell carcinoma of the high esophagus in this case is a respiratory cancer for purposes of the VA regulations regarding herbicide exposure, or whether such is an oropharyngeal cancer. (b) The examiner should then opine whether the Veteran's squamous cell carcinoma of the high esophagus more likely, less likely or at least as likely as not (50 percent or greater probability) was a result of his military service, to include his noted and conceded exposure to Agent Orange. The examiner should additionally discuss this Veteran's particularized risk factors for development of squamous cell carcinoma of the high esophagus based on the evidence of record and his personal medical history. Finally, while the IOM studies are relevant in this case, the examiner should not rely solely on those studies as a rationale for his/her medical conclusions, but rather must consider the totality of the particularized evidence of record in this case. The examiner is asked to specifically state "which studies he/she finds to be persuasive, whether there are other risk factors that might be the cause of [squamous cell carcinoma of the high esophagus], and whether the condition has manifested itself in an unusual manner." See Polovick v. Shinseki, 23 Vet. App. 48 (2009). In other words, the examiner must account for which evidence he/she finds persuasive and which he/she does not find persuasive in coming to his/her medical conclusions. 2. Submit the claims file to an oncologist or other appropriate physician/specialist in order to determine whether the Veteran's papillary carcinoma of the thyroid is caused by or otherwise the result of his military service, to include his conceded herbicide exposure therein. The examiner should specifically opine as to the following: (a) Whether the Veteran's papillary carcinoma of the thyroid in this case is a respiratory cancer for purposes of the VA regulations regarding herbicide exposure, or whether such is an oropharyngeal cancer. (b) The examiner should then opine whether the Veteran's papillary carcinoma of the thyroid more likely, less likely or at least as likely as not (50 percent or greater probability) was a result of his military service, to include his noted and conceded exposure to Agent Orange. The examiner should additionally discuss this Veteran's particularized risk factors for development of papillary carcinoma of the thyroid based on the evidence of record and his personal medical history. Finally, while the IOM studies are relevant in this case, the examiner should not rely solely on those studies as a rationale for his/her medical conclusions, but rather must consider the totality of the evidence of record in this case. Such evidence includes the "endocrine web" online medical article submitted by the Appellant suggesting a relationship between thyroid disease and Agent Orange exposure, as well as an individualized medical history that the examiner must consider in conjunction with the IOM studies. The examiner is asked to specifically state "which studies he/she finds to be persuasive, whether there are other risk factors that might be the cause of [papillary carcinoma of the thyroid], and whether the condition has manifested itself in an unusual manner." See Polovick v. Shinseki, 23 Vet. App. 48 (2009). In other words, the examiner must account for which evidence he/she finds persuasive and which he/she does not find persuasive in coming to his/her medical conclusions. 3. Obtain a VA opinion from a medical professional with appropriate expertise to determine the etiology of any diagnosed acquired psychiatric disorders, to include depression, anxiety, and PTSD, prior to the Veteran's death in January 2013. The examiner must offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosed acquired psychiatric disorder, to include depression, anxiety, and PTSD, had its onset in service or was related to the Veteran's military service. If PTSD is diagnosed at any point during the appeal, the examiner must clearly identify the stressor or stressors upon which the diagnosis of PTSD is based. 4. Finally, readjudicate the appeal. If any benefit sought on appeal remains denied, the Appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs