Citation Nr: 1757553	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  15-15 418	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Whether new and material has been received to reopen claim for a cervical spine disability.

2.  Whether new and material has been received to reopen a claim for a chronic acquired psychiatric disorder to include depression, personality disorder, and post traumatic stress disorder (PTSD).

3.  Entitlement to service connection for PTSD.

4.  Entitlement to service connection for a chronic acquired psychiatric disorder other than PTSD.

5.  Entitlement to service connection for a cervical spine disability.

6.  Entitlement to service connection for a lumbar/thoracic spine disability.

7.  Entitlement to service connection for multiple system atrophy (MSA) claimed as Parkinson's disease.   

8.  Entitlement to service connection for ischemic heart disease (IHD).  

9.  Entitlement to service connection for autonomic neuropathy.

10.  Entitlement to service connection for squamous cell carcinoma of the right neck claimed as oral cancer.

11.  Entitlement to special monthly compensation based on aid and attendance/housebound.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and S.C.


ATTORNEY FOR THE BOARD

A. D. Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from March 1975 to December 1982. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In unappealed September 1983 and June 1984 rating actions, the RO denied service connection for psychiatric disorders to include depression, depressive neurosis, personality disorder, and personality disorder with situational adjustment reaction.  In February 2011, the Veteran filed a claim for service connection for PTSD and the next month, he petitioned to reopen a claim for service connection for depression.  However, the Veteran has several psychiatric diagnoses of record.  In considering this claim for PTSD, the Veteran continues to seek service connection for a mental disability however variously diagnosed as due to military service.  Accordingly, the issue has been recharacterized on the title page as such.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). 

That initial, October 2012, decision denied a claim for service connection for traumatic brain injury (TBI).  However, a decision since issued in March 2015 by the RO granted the claim for sevice connection for TBI.  And since the Veteran did not, in response, appeal either the rating or effective date assigned for that disability, it is no longer at issue.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

A hearing was held before the undersigned Veterans Law Judge (VLJ) in May 2017.

The Board is reopening the claims for service connection for a chronic acquired psychiatric disorder and cervical spine disability; and granting service connection for PTSD.  The claims for service connection for a cervical spine condition and a psychiatric disorder other than PTSD on the merits as well as the remaining claims are REMANDED to the Agency of Original Jurisdiction (AOJ).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2).



FINDINGS OF FACT

1.  In September 1983 and July 1984 rating actions, the RO denied a claim of service connection for an acquired psychiatric disorder.  The Veteran did not perfect an appeal to the decisions.

2.  Evidence received since the RO's July 1984 decision relates to an unestablished fact necessary to substantiate the claim of service connection for a psychiatric disorder and it raises a reasonable possibility of substantiating the underlying claim.  Indeed, it provides the evidence needed to grant service connection for PTSD.

3.  Based upon competent medical evidence linking the Veteran's PTSD to his military service, service connection is warranted.

4.  In June 1990, the Board denied the claim for service connection for a cervical spine disability. 

5.  Since the June 1990 Board decision, evidence has been received that is not cumulative or redundant and relates to an unestablished fact necessary to substantiate this claim; such evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection for a cervical spine disability.  


CONCLUSIONS OF LAW

1.  The September 1983 and July 1984 RO decisions, which denied the Veteran's claim of service connection for an acquired psychiatric disorder, are final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017).

2.  New and material evidence sufficient to reopen the previously denied claim of service connection for an acquired psychiatric disorder has been received.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).

3.  Resolving all reasonable doubt in his favor, the Veteran's PTSD is related to military service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).

4.  The March 2006 Board decision denying service connection for a cervical spine disability is final.  38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1103 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Petition to Reopen Claim for Service Connection for an Acquired Psychiatric Disorder 

The Board finds that the new evidence-in particular, a VA medical opinion as well as testimony of the Veteran-is so significant that this evidence must be considered in order to fairly decide the merits of the claim.  Therefore, the Board finds that this evidence is both new and material, and serves to reopen the claim.  38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet. App. 110 (2010).  As such, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 

Service Connection for an Acquired Psychiatric Disorder

Establishing service connection generally requires competent evidence of three things: (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.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.

To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a), which requires it be diagnosed in accordance with the DSM; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304 (f). 

In light of the fact that the Veteran has a diagnosis of PTSD; the necessary stressors, working as a clinical specialist during military service (see DD-214); and a VA medical opinion that relates the Veteran's military stressors to the currently diagnosed PTSD (see VA medical opinion on April 11, 2011), the Board finds that service connection is warranted for PTSD. 

In regard to the claim for service connection for psychiatric disorders other than PTSD, the Board will remand this issue for examination and opinion.

Petition to Reopen Claim for Service Connection for Cervical Spine Disability

The Board finds that the new evidence-in particular, clinical diagnoses and opinions as well as testimony of the Veteran-is so significant that this evidence must be considered in order to fairly decide the merits of the claim for service connection for a cervical spine disability.  Therefore, the Board finds that this evidence is both new and material, and serves to reopen the claim.  38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet. App. 110 (2010).  As such, the Veteran's claim of entitlement to service connection for a cervical spine disability is reopened. 


ORDER

The Veteran's claim for entitlement to service connection for a chronic acquired psychiatric disability is reopened. 

Service connection for PTSD is granted.

The Veteran's claim for entitlement to service connection for a cervical spine disability is reopened. 


REMAND

The Veteran maintains that he has various disabilities that had their onset during, or as a result of military service.  He points out that he received psychiatric care during military service and as a result de has developed variously diagnosed psychiatric disorders.  He was also involved in a motor vehicle accident in which he sustained chronic injuries to the cervical, thoracic, and lumbar segments of the spine.  He states further that he was exposed to residual Agent Orange from airplanes that he maintained as part of his military duties while serving in Korea.  He also was exposed to Agent Orange while stationed near the Korean DMZ.  As such, he has developed Parkinson's syndrome to include MSA, squamous cell carcinoma of the right neck, and autonomic neuropathy.  In the alternative, he claims that these disabilities are etiologically-related as well as secondary to his service connected TBI and repeated in-service head trauma. 

In this regard, while it has not been confirmed that the Veteran served in the Republic of Vietnam during the Vietnam War, he contended that he maintained aircraft which previously transported Agent Orange.  In this regard, the undersigned notes that VA announced that certain individuals who performed service in the Air Force or Air Force Reserve who regularly operated, maintained, or served onboard C-123 aircraft known to have been used to spray herbicides during the Vietnam era will now be recognized as having been exposed to Agent Orange.  While the Veteran did not serve in the Air Force, given his period of service, given that the Veteran served as a utility helicopter repairer, and given that no development has been undertaken to see if he was exposed in a similar manner, the duty to assist requires further development. 

In light of the Veteran's contentions (which are highly competent, due to his occupation as a physician assistant) and his medical history, the Board finds that VA examinations and opinions are needed regarding the Veteran's claims for service connection.

The Veteran indicated through testimony that he received regular treatment through VA until May 2017.  Some VA treatment records including opinions dating back to 2011 have been associated with the e- file; however it is not clear if all VA treatment records from that period of time have been obtained.

Finally, the claim of entitlement to special monthly compensation based on aid and attendance/housebound is inextricably intertwined with the service connection claims.  Consideration of this claim must be deferred pending resolution of the remaining claims.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)


1. Make arrangements to obtain the Veteran's VA treatment records from 2011 to the present.

2. The RO must contact the Joint Services Records Research Center and request that they review the Veteran's service records, as well as any corresponding pertinent unit records dating from the period when the claimant purportedly served in Korea, and attempt to determine whether the claimant at any time performed service in a manner where he would have regularly maintained or served onboard any aircraft, to include C-123 aircraft, known to have been used to spray herbicides during the Vietnam era.  If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. 

3. After completing the above development, schedule the Veteran for appropriate VA examinations to determine the etiology of the claimed disabilities. The entire VBMS file, to include a complete copy of this remand, should be made available to, and reviewed by, the examiners. All appropriate tests and studies should be performed and all clinical findings should be reported in detail.

Psychiatric Disability

After reviewing the record, the examiner should identify all current psychiatric disorders. The examiner should then provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that each identified acquired psychiatric disorder manifested in or is otherwise related to the Veteran's period of service to include the service connected PTSD.

To the best of his/her ability, the examiner must reconcile all previous psychiatric diagnoses documented in the records and offer an opinion as to the onset date of the Veteran's psychiatric condition(s), if any.

Spine

The examiner must identify all disorders of the spine found to be present.

The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) any current disorder of the spine had its clinical onset during active service or is related to any in-service disease, event, or injury, to include the Veteran's inservice motor vehicle accident.


IHD

The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) IHD had its clinical onset during active service or is related to any in-service disease, event, or injury.  This includes exposure to herbicides, if confirmed by the RO and/or as part of a systemic disorder related to his service connected traumatic brain injury (TBI). 

Cancer

The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) the squamous cell carcinoma of the right neck had its clinical onset during active service or is related to any in-service disease, event, or injury.  This includes exposure to herbicides, if confirmed by the RO. 

MSA/Parkinson's syndrome

The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) MSA/Parkinson's syndrome had its clinical onset during active service or is related to any in-service disease, event, or injury.  This includes exposure to herbicides, if confirmed by the RO and/or as part of a systemic disorder related to his service connected traumatic brain injury (TBI). 


Autonomic Neuropathy

The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) autonomic neuropathy had its clinical onset during active service or is related to any in-service disease, event, or injury.  This includes exposure to herbicides, if confirmed by the RO and/or as part of a systemic disorder related to his service connected traumatic brain injury (TBI). 

A complete rationale must accompany all opinions rendered.

4. Finally, readjudicate the claims on appeal based upon all additional evidence received.

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 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).




______________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs