Citation Nr: 1756944 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-04 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence was received to reopen a claim for service connection for bilateral inguinal hernias, and if so, whether service connection for those disabilities is warranted. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) in part due to a military sexual assault, and anxiety disorder other than PTSD, a depressive disorder, and alcohol dependence. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from April 1973 through April 1976, January 1977 through October 1979, and April 1989 through September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 and August 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2016, the Board remanded the issues on appeal for further development. That development has been performed. The matter now returns to the Board for de novo review. The issues of whether new and material evidence was received to reopen claims for service connection for ischemic heart disease; diabetes mellitus, type II; and chronic obstructive pulmonary disorder have been raised by the record in a November 2016 claim, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran's original claim for service connection for bilateral inguinal hernias was denied in a March 1984 Board decision. 2. The Veteran's current petition to reopen his claim for service connection for bilateral inguinal hernias was received in April 2010. 3. The evidence associated with the claims file since the March 1984 decision, when considered with the evidence previously of record, relates to the previously disputed question of whether the Veteran's bilateral inguinal hernias are related etiologically to his active duty service. 4. The Veteran's inguinal hernias were not sustained during his active duty service, did not result from an injury or event that occurred during active duty service, and were not aggravated beyond their normal progression by any periods of service after their initial diagnosis and treatment. 5. The Veteran's reported in-service psychiatric stressors are not corroborated by the record. 6. The Veteran's depressive disorder was not sustained during his active duty service; caused by or resulted from an in-service injury, illness, or event; or manifest within one year from his separation from active duty service. 7. The Veteran's hypertension was not sustained during his active duty service; caused by or resulted from an in-service injury, illness, or event; or manifest within one year from his separation from active duty service. CONCLUSIONS OF LAW 1. The additional evidence associated with the record since the March 1984 Board decision is new and material, and the Veteran's claim for service connection for bilateral inguinal hernias is reopened. 38 U.S.C.A. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 2. The criteria for service connection for bilateral inguinal hernias are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2017). 3. The criteria for service connection for an acquired psychiatric disorder, to include PTSD in part due to a military sexual assault, and anxiety disorder other than PTSD, a depressive disorder, and alcohol dependence, are not met and may not be presumed as having been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for hypertension are not met and may not be presumed as having been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, VA's duty to notify was satisfied by letters mailed to the Veteran in May 2010 and in January 2011. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also met its duty to assist the Veteran by obtaining all identified and available treatment records and evidence. Those records are associated with the claims file. A VA mental health examination was afforded to the Veteran in September 2014. II. Reopening Claim for Service Connection for Bilateral Inguinal Hernias Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C.A. § 7104, 7105. Under 38 U.S.C.A. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156 (a), "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's original claim for service connection for bilateral inguinal hernias was denied in a May 1980 rating decision on the basis that the evidence available at that time did not show that the Veteran's hernias were related etiologically to the Veteran's active duty service. The Veteran appealed that decision to the Board. In a March 1984 decision, the Board also denied the Veteran's claim on the same basis. The March 1984 Board denial became final. 38 U.S.C.A. § 7105 (c) (2012). The Veteran's pending petition to reopen his claim was received in April 2010. That petition was also denied in a November 2010 rating decision on the continuing basis that newly received evidence still did not show the existence of an etiological relationship between the Veteran's hernias and his active duty service. The Veteran perfected a timely appeal and asserts that his claim should be reopened and considered on the merits. At the time of the final March 1984 Board decision, the evidentiary record consisted of arguments and assertions raised by the Veteran in his claim submissions and statements, limited service treatment records, and a December 1979 VA treatment record. In his claim submissions, the Veteran asserted that his hernias should have been presumed as being related to his active duty service because they were first noted and diagnosed only a month after he was separated from service. The service treatment records associated at that time with the file showed no evidence of any in-service complaints or any objective findings or diagnoses of inguinal hernias, but, that the Veteran's hernias were first observed and diagnosed during a November 1979 re-enlistment examination. The post-service December 1979 VA treatment record reflects treatment for the Veteran's hernias, but offer no opinions as to whether the hernias were related etiologically to the Veteran's active duty service. Evidence added to the record since the Board's March 1984 decision includes additional assertions and arguments expressed by the Veteran in newer claim submissions and statements, additional service treatment records, service personnel records from the Veteran's active duty and Reserve service, and records for VA treatment received by the Veteran from 1979 through 2016. The VA treatment records note the Veteran's history of bilateral inguinal hernias and show that the Veteran had a recurrence of the inguinal hernia on his right side in 2010. Although those records still reflect no opinion as to whether the Veteran's hernias are related to his active duty service, the Veteran's new claim submissions do raise the new assertion that he first noticed symptoms associated with his hernias during his period of service from 1977 through 1979. To that end, he seems to suggest that he experienced continuous symptoms associated with inguinal hernias that began during his active duty service. The Veteran's newly raised assertions of continuity are new and material as to the previously unestablished question of whether the Veteran's inguinal hernias are related to his active duty service. Moreover, as noted above, the Board is compelled to accept the credibility of those assertions for purposes of determining whether new and material evidence was received. New and material evidence concerning the Veteran's claim for service connection for bilateral inguinal hernias has been received. Hence, that claim is reopened and will next be addressed by the Board on a de novo basis. III. Service Connection Service connection is granted generally if the evidence shows that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires competent evidence of three essential elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017). Service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and, credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2017). Service connection for certain listed chronic diseases, such as psychoses and cardiovascular-renal diseases such as hypertension, may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service if such disability becomes manifest to a compensable degree within one year of separation from active duty. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through an evidentiary showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b) (2017). Service connection may also be granted for a disease that is first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). A. PTSD The Veteran asserts entitlement to service connection for an acquired psychiatric disorder, to include PTSD, which he asserts was caused by various in-service stressor events. For his first stressor, the Veteran states in his lay statements and Board hearing testimony that he served in Vietnam in 1973, where he engaged the enemy in combat and was taken captive and held as a prisoner of war (POW). He states that he was interrogated and tortured while he was held as a POW and that he witnessed the shooting death of a service buddy. He states that he was held as a POW for approximately a month before he was liberated by his platoon. For his second stressor, the Veteran reported during his September 2014 VA examination that while he was performing patrol duty in Vietnam, he witnessed the shooting of a woman and a baby. He states that he attempted to provide mouth to mouth to the baby, but to no avail. For his third stressor, the Veteran also reported during his VA examination that he was sexually assaulted while he was intoxicated. Finally, for his fourth stressor, the Veteran claims general stress and tension related to combat duty experiences during service. In that regard, the Veteran asserts not only combat experience in Vietnam, but also combat duty in Iraq and Afghanistan during Operation Desert Storm. VA treatment records in the claims file and the September 2014 show that PTSD has been diagnosed for the Veteran and that he has undergone individual and group therapy since 2010. The PTSD diagnoses are based upon the stressors reported by the Veteran. Despite repeated efforts by VA to obtain corroborating information and evidence from the National Personnel Records Center (NPRC), Joint Services Records Research Center (JSRRC), service departments, and the state adjutant's office for the Veteran's National Guard and Reserve units, none of the reported stressors are corroborated in the record. The assembled service department records make no reference to any service by the Veteran in Vietnam or the Persian Gulf. To that end, the Veteran's DD 214s make no reference to any combat duty nor do they reflect awards, medals, or commendations that are consistent with combat duty in Vietnam or the Persian Gulf. Indeed, the DD 214 corresponding to the Veteran's period of active duty service from April 1973 through April 1976, the period during which the Veteran claims to have been deployed to Vietnam, states expressly that the Veteran did not have any foreign or overseas service. Further, there is no documentation in the assembled service personnel records that the Veteran was ever ordered to Vietnam or the Persian Gulf. Letters received in June 2016 from the Veteran's friends, J.V. and G.G. seek to corroborate the Veteran's assertion that he served in Vietnam. J.V. asserts that she was the Veteran's girlfriend when he was deployed to Vietnam and that she received correspondence from Vietnam from the Veteran. G.G. claims that he enlisted with the Veteran and that when he went to surprise the Veteran with a visit to his barracks at Camp Hanson in November 1973, he learned that the Veteran and his unit had been deployed to Vietnam. Nonetheless, the lay assertions raised by J.V. and G.G. are not supported by any other information in the record. Moreover, they have not produced any of the Veteran's purported correspondence, pictures, or other evidence that substantiates their claims. An August 2016 letter from N.R. asserts that the Veteran's personality and behavior appeared to be changed after he returned from purported service in the Persian Gulf. Those assertions, however, are also not supported by any evidence in the record. Given that the lay assertions raised by the Veteran's friends are rebutted by contrary information in the service department records, in the absence of corroborating evidence, those lay assertions carry significant credibility concerns and are not entitled to probative weight. The Board observes also that the Veteran's own statements concerning purported duty in Vietnam are marked by various inconsistencies. In that regard, the Board notes that he was unable to provide key details pertaining to his purported service in Vietnam, such as dates or the names of any ports, bases, or cities that he passed through during his duties. Similarly, there is no information or evidence in the service department records that corroborates the Veteran's purported experience as a POW during his service in Vietnam. Although the Veteran states that he witnessed the shooting death of his service buddy at the hands of the enemy, he is unable to recall his service buddy's name. During a November 2013 informal hearing before a Decision Review Officer (DRO), the Veteran recalled the service buddy's name as being a "PFC Miller." During his June 2016 Board hearing, he reported the service buddy's name as being "PFC Madder." Also, the Board notes that the service treatment records make no mention of the Veteran's purported period of captivity, much less, reflect any physical or medical examination of the Veteran following his rescue from captivity. There is also no mention in any of the service treatment records of any mental health complaints, findings, or diagnoses. In view of the numerous inconsistencies in the Veteran's statements and testimony concerning his purported foreign service, the Board is also not inclined to assign his statements any probative weight. Similarly, there is no information or evidence in the record that corroborates the Veteran's purported military sexual trauma. The Veteran provides no additional information or detail concerning his in-service sexual trauma. Moreover, there is no reference in the service department records to a sexual assault during service. The Board recognizes that in instances of military sexual assault, evidence from sources other than the Veteran's service department records may be considered to corroborate the reported personal assault stressor. 38 C.F.R. § 3.304 (f)(5); see also Patton v. West, 12 Vet. App. 272, 277 (1999). Such evidence can include evidence of behavioral changes after the alleged stressor. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5) (2017). Here, the personnel records show that the Veteran consistently received favorable performance evaluations over the course of his service from 1977 through 1990. As mentioned, there is no indication in the service treatment records that the Veteran reported any mental health problems or symptoms such as panic, anxiety, depression, loss of concentration, substance abuse, or other indicators of behavior change following sexual assault. In sum, the evidence also does not substantiate the Veteran's assertion that he was the victim of a military sexual assault. Overall, none of the Veteran's reported PTSD stressors are corroborated by probative evidence in the record. In the absence of a corroborated PTSD stressor, and, where the PTSD diagnoses shown in the record depend upon the veracity of the Veteran's claims regarding his stressors, the necessary basic elements for service connection for PTSD are not met. As such, the Veteran is not entitled to service connection for PTSD. B. Acquired Psychiatric Disorders Other than PTSD The VA treatment records show that the Veteran has been followed since 2010 not only for PTSD, but also for a concurrent depressive disorder diagnosis and alcohol dependence. The concurring diagnoses were confirmed during the September 2014 VA examination. The examiner concluded that the symptoms associated from the depressive disorder and alcohol dependence could not be separated and identified independently from those associated with the Veteran's PTSD. As noted above, the service department records in the claim file make no mention of any subjectively reported mental health symptoms by the Veteran during service, and also, do not indicate any in-service treatment, findings, or diagnoses of any mental health illness. Repeated physical examinations performed over the course of the Veteran's active duty and Reserve service show repeatedly that the psychiatric component of those examinations was normal. Notably, the VA treatment records and VA examiner's report seem to suggest that the Veteran's depressive disorder also derives from the in-service stressor events reported by the Veteran. The Board reiterates that the occurrence of those stressors is not substantiated by any credible evidence in the record. Thus, to the extent that the treatment records and VA examination suggest the existence of a positive nexus between the Veteran's depressive disorder and his active duty service, the Board does not assign such opinions any probative weight. In sum, the weight of the evidence shows that the Veteran's depressive disorder and alcohol dependence, which were diagnosed more than 20 years after the Veteran's final period of active duty service, were not sustained during service or caused by an injury or event that occurred during his active duty service. On that basis, the Veteran is not entitled to service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder and alcohol dependence. C. Inguinal Hernias The Veteran raises dual theories in support of his claim for service connection for bilateral inguinal hernias. Initially, he argues that service connection for his hernias should be presumed because they were noted and diagnosed only a month after his separation from service in October 1979, during a November 1979 re-enlistment examination. Alternatively, he has also provided Board hearing testimony that he first noticed his hernias during his period of active duty service from 1977 through 1979. Thus, he asserts that although his hernias were not discovered until after he was separated from service, they actually were incurred during service. Initially, the Board observes that 38 C.F.R. §§ 3.307 and 3.309(a) do not recognize hernias as being among those disorders for which service connection may be presumed based on manifestation occurring within one year from separation from service. 38 C.F.R. §§ 3.307, 3.309(a) (2017). Accordingly, service connection for the Veteran's hernias may not be presumed in this case, even if shown that they were manifest to a compensable degree within a year from his separation from service. Contrary to the Veteran's assertion that his hernias began during service, the associated service treatment records, which include records pertaining to treatment received from 1977 through 1979, reflect no subjective complaints by the Veteran of any symptoms related to hernias. Moreover, the records make no mention of any objectively observed signs of a hernia, much less an actual in-service hernia diagnosis. Notably, the Veteran has asserted in his hearing testimony that he was never given a separation examination prior to his separation from service in October 1979. Also contrary to that assertion, however, the record shows that a separation examination was conducted in June 1979. The report from that examination reflects no evidence of any physical abnormalities. Given the inconsistencies in the Veteran's assertion concerning in-service onset of his hernias, the Board does not assign that assertion any probative weight. Although the record shows that the Veteran underwent surgeries to repair bilateral inguinal hernias during VA treatment in November and December of 1979, those records contain no information or opinions suggesting that the Veteran's hernias had an earlier onset during the Veteran's period of active duty. Records for subsequent VA treatment received by the Veteran since 2010 show that the Veteran sustained a recurrence of his right-sided hernia in December 2010. Again, however, there are no facts or opinions expressed in those records that suggest that the Veteran's hernias were sustained during his period of service from 1977 through 1979. Records for subsequent VA treatment of the Veteran through 2016 show that the Veteran's hernias have been maintained on the problem list. Still, those records also contain no facts or opinions that suggest the existence of an etiological relationship between the Veteran's hernias and service. Notably, the Veteran had a period of active duty service in 1989, ten years after his hernias were diagnosed and treated initially in 1979. To the extent that the evidence shows that the Veteran's hernias were aggravated beyond their natural progression during his period of service in 1989, service connection for the Veteran's hernias may be granted based on such aggravation. 38 U.S.C.A. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). Still, there is no evidence in the record that suggests that such aggravation occurred during the Veteran's period of service in 1989. In that regard, the service treatment records corresponding to that period of service make no mention of any complaints or findings related to the Veteran's hernias. Indeed, subsequent physical examination conducted of the Veteran during his ongoing Reserve service were all normal and not indicative of any new or worsening symptomatology associated with the Veteran's hernias. As noted above, the records show that the Veteran had a recurrence of his right-sided hernia in 2010, more than 20 years after the Veteran's last period of active duty. Nonetheless, there is no indication in those records that the recurrence of the Veteran's hernia was due to aggravation that took place during his period of service in 1989. The Board is mindful that the Veteran has not been afforded a VA examination for his hernias. Regardless, where there is simply no credible lay evidence or competent medical evidence in the record that even suggests that the Veteran's hernias might be related etiologically to his active duty service, there is no evidentiary basis in the record that necessitates such an examination. Rather, the existing evidence in the record is sufficient to permit the Board to conclude that it is unlikely that the Veteran's hypertension is related in any way to his periods of service. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (stating the circumstances under which a VA examination is required). Overall, the weight of the evidence shows that the Veteran's bilateral inguinal hernias were not sustained during his periods of active duty service, that they were not caused by an injury or event that occurred during service, and that they were not aggravated beyond their natural progression by any subsequent periods of service. The Veteran is not entitled to service connection for bilateral inguinal hernias. D. Hypertension The Veteran asserts generally that he has current hypertension that is related etiologically to his active duty service. To that end, he testified during his Board hearing that his hypertension was first noted during a physical examination that was conducted while he was stationed at Camp Lejeune, sometime within the time period from 1974 through 1976. Post-service VA treatment records show that the Veteran has been followed since 2010 for essential hypertension that has been managed generally successfully by medication. Still, the treatment records give no opinions as to when the Veteran's hypertension began, or, whether the hypertension is related etiologically to the Veteran's active duty service. The Veteran's assertion that he was diagnosed with hypertension initially during service also carries grave credibility concerns. The service treatment records show no evidence of in-service onset of the Veteran's hypertension. In that regard, repeated blood pressure readings taken over the course of the Veteran's active duty and Reserve service were normal. Moreover, there is no indication in the treatment records or physical examination reports of any objectively noted blood pressure or other vascular abnormalities. Additionally, the record shows that the Veteran has made various inconsistent statements concerning the onset of his hypertension. Contrary to his current assertion that his hypertension was noted during service, Reports of Medical History and examination reports contained in the service treatment records show that the Veteran repeatedly and expressly denied having any history of high or low blood pressure throughout service. Also contrary to his assertion of in-service onset, the Veteran testified during his DRO hearing that he had been diagnosed with hypertension during VA treatment in 2003 or 2004. Given that the Veteran's assertions concerning the in-service onset of his hypertension is rebutted by contrary evidence in the record, and given the inconsistencies in the Veteran's assertions, the Board does not assign those assertions any weight. The Veteran has also not been afforded a VA examination for his hypertension. As discussed however, there is simply no credible lay evidence or competent medical evidence in the record that even suggests the existence of an etiological relationship between the Veteran's hypertension and his active duty service. As such, there is no evidentiary basis in the record upon which to determine that a VA examination of the Veteran's hypertension is necessary. Instead, the evidence already of record is sufficient to allow the Board to make all necessary conclusions regarding the Veteran's hernias. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 83. The preponderance of the evidence shows that the Veteran's hypertension was not sustained during service, did not result from an injury or event that occurred during service, and was not manifest to any degree within a year from his separation from service in 1989. As such, the Veteran is also not entitled to service connection for hypertension. ORDER New and material evidence was received and the Veteran's claim for service connection for bilateral inguinal hernias is reopened. Service connection for bilateral inguinal hernias is denied. Service connection for an acquired psychiatric disorder, to include PTSD in part due to a military sexual assault, and anxiety disorder other than PTSD, a depressive disorder, and alcohol dependence, is denied. Service connection for hypertension is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs