Citation Nr: 1801052 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-08 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a cardiovascular disorder, to include ischemic heart disease and coronary artery disease (CAD) as due to in-service exposure to an herbicide agent. 2. Entitlement to service connection for hypertension, to include as due to in-service exposure to an herbicide agent and contaminated water at Camp Lejeune, North Carolina. 3. Entitlement to an acquired psychiatric disorder, to include depression. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to service connection for ischemic heart disease. Jurisdiction of this matter has since been transferred to Houston, Texas. A March 2016 rating decision of the VA RO in Houston, Texas denied entitlement to service connection for anxiety, depression, and hypertension. In his substantive appeal, VA Form 9, for the issue of entitlement to service connection for ischemic heart disease, the Veteran requested a hearing before the Board. In a March 2017 statement, the Veteran withdrew his request for a hearing. Consequently, the Board deems his request for a hearing to be withdrawn. 38 C.F.R. § 20.704(e) (2017). Concerning the Veteran's claim for service connection for depression and anxiety, the Board notes that the record reflects various diagnostic impressions, including depression. Because the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim and reported syndromes and all other information of record, the Board finds that it is more appropriate to characterize his mental health claims broadly, as a single claim of entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, the Veteran's claim for service connection for ischemic heart disease had been expanded to include any cardiovascular disease, to include CAD. Id. The issues of entitlement to service connection for an acquired psychiatric disability and entitlement to service connection for hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veterans Benefits Administration designates all vessels of the LST category as brown water ships operating primarily or exclusively on Vietnam's inland waters, thus the Veteran is presumed to have been exposed to herbicide agents due to his service about the USS San Bernadino LST-1189. CONCLUSION OF LAW The criteria for entitlement to service connection for coronary artery disease as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his cardiovascular disorder is the result of his active duty service in the Republic of Vietnam, and alleged exposure to herbicide agents. Specifically, the Veteran asserts that he was exposed to herbicide agents while serving aboard the USS San Bernadino, LST-1189. See October 2010 Statement in Support of Claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases, including CAD, will be presumptively service connected even if there is no record of the disease in service. 38 U.S.C. §§ 1110, 1116, 1131; 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e); see also VAOPGCPREC 7-93. 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. 38 U.S.C. § 101 (29)(A); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009) (holding that a Veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). Notably, the Veterans Benefits Administration (VBA) has historically extended the herbicide presumption to naval ships which entered Vietnam's inland waterways or those which docked to the shore, but did not extend the presumption to naval ships operating in open water ("brown" versus "blue" water ships). See, e.g., Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated December 9, 2014), VA Adjudication Procedure Manual M21-1 (M21-1), pt. IV, subpt. ii, § 1.H.2.b. Significantly, in April 2015, the United States Court of Appeals for Veterans Claims, in addressing a claim for presumptive service connection based on herbicide exposure while that Veteran's ship was anchored in Da Nang Harbor, held that the rationale underlying VA's designation of Da Nang Harbor as an offshore, rather than an inland, waterway, was inconsistent with the identified purpose of the statute and regulation: providing compensation to Veterans based on the likelihood of exposure to herbicides. Gray v. McDonald, 27 Vet. App. 313, 326 (2015). As a result of the Gray decision, the VBA revised its list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated September 5, 2017) http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm. The VBA now recognizes that all vessels with the designation of Landing Ship, Tank (LST) shall be covered as ships associated with service in Vietnam and exposure to herbicide agents. The Veteran's service records indicate service in the contiguous waters of the Republic of Vietnam. Service aboard the USS San Bernadino is documented. Thus, the Board finds that the Veteran served aboard the USS San Bernadino LST-1189, and is presumed to have been exposed to herbicides. Consequently, his currently diagnosed CAD is presumed due to his in-service herbicide exposure pursuant to 38 C.F.R. § 3.309(e). ORDER Entitlement to service connection for CAD is granted. REMAND Unfortunately, the Veteran's claim must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claim so he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c), (d) (2017). With regard to the Veteran's claim of entitlement to service connection for hypertension, the Veteran's exposure to herbicides is now presumed. 38 U.S.C. § 1116(f) (2012). Hypertension is not one of diseases listed under 38 C.F.R. § 3.309(e) for which a presumption of service connection based on herbicide exposure applies. The National Academy of Sciences (NAS) has concluded, however, 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 and Agent Orange: Update 2010 (2011) at 694; 77 Fed. Reg. 47,924-01 (Aug. 10, 2012). Absent a medical opinion as to the likelihood that the Veteran's hypertension was actually caused by his presumed herbicide exposure, the record is insufficient for the Board to decide the Veteran's claim. Additionally, the Board notes that it has been established that veterans who served at U.S. Marine Corps Base Camp Lejeune were potentially exposed to contaminants present in the base water supply prior to 1987. The chemical compounds involved have been associated by various scientific organizations with the possible development of certain chronic diseases. As the Veteran's service records show he was stationed at Camp Lejeune during the relevant time period, it will be assumed that he was potentially exposed to chemicals known to have contaminated the water at Camp Lejeune. For Veterans, such as this Veteran, who had service at Camp Lejeune between August 1953 and December 1987, VA has defined a legal presumption to the effect that the diseases of kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of 38 C.F.R. § 3.307(d). 38 C.F.R. § 3.309(f)(8). This rule will apply to claims received by VA on or after March 14, 2017, the effective date of the final rule and to claims pending before VA on that date. Under 38 CFR § 3.160(c), a claim that has not been finally adjudicated (which includes claims where a final and binding decision has been issued but the appeal period has not expired) is still considered a pending claim. Although VA cannot presume under law that the Veteran's hypertension was related to toxic exposures at Camp Lejeune, this does not prevent the Veteran from presenting evidence showing a direct causation in this particular case. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board finds a remand is required to obtain an examination to address the etiology of the Veteran's hypertension, and its relation to his in-service exposure to herbicides and contaminated water. Turning to the claim of entitlement to service connection for an acquired psychiatric disorder, the Veteran's post-service treatment records indicate his depression had its initial onset during his active service when he was assaulted by other service members and one of his teeth was knocked out. See January 2016 Mental Health Outpatient Note. The Veteran's post service treatment records recount his psychiatric symptoms since his separation from active service. Id. In this regard, the Veteran is competent to report observable psychiatry symptomatology, including moodiness, anger, and depression. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, the Veteran is credible in his reports of suffering psychiatric symptomatology during and after service. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). This credible report of a continuity of symptomatology suggest a link between the Veteran's current psychiatric disorder(s) and his active service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Additionally, there is evidence of an in-service event which may be related to the claimed acquired psychiatric disorder. Specifically, the Veteran has stated he was assaulted, and that assault resulted in a tooth being knocked out. January 2016 Mental Health Outpatient Note. Although the Veteran did not report the incident, his service treatment records reveal that he had several missing teeth upon his separation from service. See March 1974 Medical Examination. The Veteran is competent to testify to his own experiences. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). On remand, the Veteran should be provided with an examination to address the etiology of his acquired psychiatric disorder. Finally, as this matter is being remanded, the Veteran's updated treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records, dated from January 2016, forward. 2. Notify the Veteran that he may submit lay statements from himself and other individuals who have first-hand knowledge of any in-service problems with an acquired psychiatric disorder. Additionally, notify the Veteran that he may support his claim with evidence from other sources including law enforcement authorities, mental health counseling services, hospitals, physicians, and statements from family members. 3. After completing directives #1-#2, schedule the Veteran for an appropriate VA examination to determine the etiology of his hypertension. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should elicit a full history from the Veteran. Any medically indicated tests should be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its clinical onset during active service or is related to any incident of service, to include exposure to herbicides as well as contaminated water at Camp Lejeune. It would be helpful if the examiner discussed any relevant medical literature pertaining to the Camp Lejeune contaminated water and/or the toxins contained therein. If it is determined that the hypertension was unrelated to the Veteran's service, the examiner should identify the causal factor(s) considered more likely and explain his or her reasons for this conclusion. The examiner should also discuss the NAS conclusion that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension. The examiner must provide a complete rationale for all opinions provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 4. After completing directives #1-#2, schedule the Veteran for a VA psychiatric examination. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should elicit a full history from the Veteran. Any medically indicated tests should be conducted. The examiner is asked to provide the following: a. Please identify (by diagnosis) each psychiatric disorder found to be present, to include depression. b. For each psychiatric disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the psychiatric disorder had its clinical onset during active service or is related to any incident of service, to include being assaulted by another service member(s). In reaching this opinion, the examiner must consider and address the following: A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 5. Finally, after completing any other development that may be indicated, readjudicate the claims on appeal. If any benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs