Citation Nr: 18142450 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-39 747 DATE: October 15, 2018 ORDER Entitlement to service connection for coronary artery disease (CAD), to include as due to exposure to herbicide agents, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. Entitlement to service connection for a brain disorder, to include a traumatic brain injury (TBI) and frontal temporal dementia, is remanded. FINDING OF FACT The weight of the evidence does not show that the Veteran has a current diagnosis of CAD that was incurred in, or resulted from, active duty service, to include as due to exposure to herbicide agents; or manifested within one year from separation from service. CONCLUSION OF LAW The criteria to establish service connection for CAD are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service after being inducted in January 1971 until January 1973. The Veteran, his spouse, and his son testified before the undersigned Veterans Law Judge at a July 2018 hearing, and a transcript of this hearing is of record. The Board notes that evidence was received at and after the hearing, subsequent to the November 2016 and February 2017 Supplemental Statements of the Case (SSOCs). Generally, the Board may not consider additional evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from a veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c). However, for cases where the substantive review was filed on or after February 2, 2013, 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with or after submission of a VA Form 9. 38 U.S.C. § 7105(e). In this case, the Veteran filed his VA Forms 9 in October 2015 and December 2016. Additionally, he submitted a waiver of AOJ review for evidence submitted at his July 2018 hearing. As such, a remand is not required for the AOJ to consider the new evidence. The Veteran initially filed a claim of entitlement to service connection for a mental health condition, specifically PTSD, which was denied. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims clarified how the Board should analyze claims for PTSD and other acquired psychiatric disabilities. As emphasized in Clemons, a veteran’s claim “cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.” Id. Subsequently, the Veteran filed separate claims for depression and anxiety in December 2016, which the Regional Office (RO) denied in a February 2017 rating decision. Although the Veteran filed and the RO considered the claims of PTSD, depression, and anxiety separately, they have been combined and recharacterized as such, as stated above. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004. The United States Court of Appeals for Veterans Claims has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.... In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, VA has established a presumption of herbicide exposure applicable to Veterans who served in Republic of Vietnam during the Vietnam War. Specifically, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. “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 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld the VA’s interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring proof of some duty or visitation onshore in Vietnam. Certain diseases, such as ischemic heart disease, including but not limited to CAD, are deemed associated with herbicide agent exposure under VA law and shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for CAD The Veteran contends that service connection for CAD is warranted. Based on a review of the evidence of record, the Board finds that the evidence weighs against finding in favor of the Veteran’s service connection claim for CAD as there is no evidence of a current diagnosis of such. At a July 2018 videoconference hearing, the Veteran’s wife testified that the Veteran was diagnosed with a coronary artery problem when he was in his 30s. Even if that was the case, unfortunately, there is no medical evidence to confirm that the Veteran was diagnosed with CAD during the appeal period. Service connection under any theory requires a current diagnosis or disability. While the Veteran’s wife noted a past diagnosis of CAD, the evidence does not reflect a diagnosis of CAD since the filing of the claim. See Brammer, supra. The Board considered the lay evidence in this case. As a layperson, the Veteran is competent to report matters within his own personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, he is competent to report symptoms, but he is not competent to provide a clinical diagnosis of CAD, as such a determination is medical in nature and requires medical expertise to make, and there is no evidence that the Veteran has such medical training. Thus, the Veteran has not presented competent evidence showing that he has a current diagnosis of CAD. See 38 U.S.C. § 5107(a)(“[A] claimant has the responsibility to present and support a claim for benefits.”); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant’s general evidentiary burden to establish all elements of the claim). Additionally, although the Veteran contends that he briefly served in Vietnam in May 1971, there is no official documentation or other corroborating evidence that confirms such service. In September 2015, the Veteran’s spouse stated that the Veteran was briefly deployed to Vietnam in May 1971, where he served as a “ground pounder.” However, he was transferred to Germany as he had a “very rare AB+ blood type” that was hard to find should he need a transfusion due to warfare. At a July 2018 videoconference hearing, the Veteran testified that he had a short tour to Vietnam for a couple of months between his training and transfer to Germany. His representative noted that the Veteran’s patch that read “Hell on Wheels” was evidence of his service in Vietnam. The Veteran’s personnel records reflect that the Veteran served in Germany from June 1971 to January 1973, and that he was stationed in Greece from July 1972 to August 1972. There is no indication of service in Vietnam or transfer due to the Veteran’s rare blood type at any point during service. While the Board has considered the Veteran’s statements of service in Vietnam, as well as the Veteran’s patch, the weight of the evidence is against a finding that the Veteran served in Vietnam as there is no official documentation reflecting such. Furthermore, there is no evidence suggesting an in-service incurrence of CAD as the Veteran denied being informed of any heart trouble in a June 1971 medical history questionnaire, and had a normal clinical evaluation of the heart at separation in October 1972. In summary, the Board finds that the preponderance of the evidence is against the Veteran’s service connection claim for CAD. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety, is remanded. The claim of service connection for an acquired psychiatric disorder is being remanded for a VA opinion. An April 2015 VA examiner found the Veteran’s self-report was unreliable and thus did not complete the examination for PTSD. However, in a July 2015 letter, a VA staff psychiatrist found that the criteria of a diagnosis of PTSD was met, which he opined was as likely as not related to service. Unfortunately, although the psychiatrist discussed the Veteran’s reported stressors and symptoms, he did not state what criteria he used to support a PTSD diagnosis. Therefore, an addendum opinion should be obtained in order to confirm whether, based on the claims file, the Veteran meets the criteria for a diagnosis of PTSD. Additionally, the Veteran has raised different in-service stressors, which he contends caused or are related to his claimed psychiatric disorder. However, it does not appear that the RO has attempted to corroborate them; this should also be accomplished on remand. 2. Entitlement to service connection for a brain disorder, to include a TBI and frontal temporal dementia, is remanded. The claim of service connection for a brain disorder is being remanded for a VA examination. In his July 2015 claim application, the Veteran filed for service connection for a TBI due to an in-service grenade accident. At a July 2018 videoconference hearing, the Veteran testified a grenade incident during training when a group was being shown a grenade and one of the soldiers accidentally pulled the pin, and was instructed to throw it. However, they all were thrown back when it exploded, and the Veteran hit his head. A November 2016 VA TBI consultation record reflects that the examiner opined that it was likely that his frontal temporal dementia was not related to his in-service injury. However, he did not further explain or provide a rationale. Additionally, after the in-service injury, the Veteran complained of headaches, for which he is now service-connected. He is also service connected for hearing loss and tinnitus. The Veteran has not yet been afforded a VA examination in order to determine whether his claimed brain disorder first manifested during or is otherwise related to service, or is caused or aggravated by his service-connected disabilities. This should be accomplished on remand. The matter is REMANDED for the following action: 1. Prepare a list of the Veteran’s claimed stressors and attempt to verify them by contacting the appropriate agencies. He has asserted the following stressors: a) Being an infantry soldier in Vietnam, where he was in active combat and witnessed the deaths of fellow soldiers, b) Fearing for his life when a grenade exploded in front of him in 1971 while stationed in Vietnam, and c) Being a guard at the 1972 Olympics in Greece where terrorists took Israeli athletes hostage. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. If any additional stressor details are needed from the Veteran, request them from him. 2. Then, obtain a VA addendum opinion to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD, depression, and anxiety, based on the evidence in the claims file. If necessary, an additional examination, including all tests and studies deemed necessary, shall be performed. The examiner should be provided with the Veteran’s claims file, including a copy of this remand. Although a complete review of the record is imperative, attention is called to the following: *Personnel records reflecting service in Germany from June 1971 to January 1973, and service in Greece from July 1972 to August 1972. *A September 1970 induction examination report reflecting a normal psychiatric evaluation, and the Veteran’s denial of frequent or terrifying nightmares, frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. *An October 1972 separation examination report reflecting a normal psychiatric evaluation. *VA treatment records reflecting the Veteran’s repeated denials of depressed mood, and negative depression and PTSD screenings. *A November 2014 VA treatment record reflecting diagnoses of anxiety disorder not otherwise specified (NOS) rule out PTSD and dementia NOS with possible frontotemporal dementia. *A November 2014 VA treatment record reflecting evaluation for PTSD, where the Veteran was diagnosed with PTSD and major neurocognitive disorder, possibly due to frontotemporal dementia, language variant. *The Veteran’s December 2014 statement where he reported that he was an infantry soldier in Vietnam, was involved in combat situations, and was deployed to Greece to deal with the 1972 Olympic hostage crisis. *His December 2014 VA Form 21-0781 where he reported that he feared for his life in 1971 when a grenade exploded in front of him while stationed in Vietnam, and when he was deployed to Greece as a support troop in 1972 to assist with a hostage situation where a lot of people were killed. *The April 2015 VA examination report. *The Veteran’s wife’s June 2015 lay statement in which she reported that the Veteran seemed different after basic training, Vietnam, and his deployment to Greece and Germany; and contended that his current diagnosis of dementia did not preclude a prior diagnosis of PTSD. *A July 2015 letter from a VA staff psychiatrist who found that the criteria of a diagnosis of PTSD was met, which he opined was as likely as not related to service. *A February 2018 letter in which a VA staff psychiatrist noted a diagnosis of major neurocognitive disorder (dementia) due to frontotemporal lobar degeneration. *The testimonies of the Veteran, his spouse, and his son at the July 2017 videoconference hearing. *A July 2018 lay statement from J.R. in which he discussed winning a raffle to go to Germany for the Olympics, during which time they were not aware of the Israeli hostage situation until afterwards; and going to Greece to compete in war games. After reviewing the claims file and examining the Veteran, the examiner is asked to address the following: a) Determine whether the Veteran meets the criteria for a diagnosis of PTSD based on DSM-5. If the examiner determines that the Veteran does not have PTSD, he or she should address the VA staff psychiatrist’s July 2015 letter in which he found that the criteria for a PTSD diagnosis was met. b) If PTSD is currently demonstrated, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s PTSD had an onset during the Veteran’s active service or was caused by his active service, to include his claimed stressors. The examiner should identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran’s claimed stressor(s). In so doing, the examiner should determine whether the claimed stressor(s) has been verified. c) For any other diagnosed psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the such other diagnosed psychiatric disorder, to include depression and anxiety, began in or is the result of military service. All opinions are to be accompanied by a rationale consistent with the evidence of record. 3. Provide a comprehensive VA examination by an appropriate examiner to determine the nature and etiology of the Veteran’s claimed brain disorder, to include TBI and frontal temporal dementia. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. Although a complete review of the record is imperative, attention is called to the following: *A VA treatment record from November 2016 reflecting a TBI consultation during which the Veteran described the in-service grenade incident and claimed injuries. The examiner also opined that it was likely that the Veteran’s frontal temporal dementia was not related to that event. *The July 2018 videoconference hearing transcript. *A July 2018 statement from J.R. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: a) Identify all the Veteran’s current brain diagnoses (i.e., diagnosed since the date of claim). b) For each diagnosis, opine as to whether it at least as likely as not (i.e., probability of 50 percent) originated during active duty or is otherwise related to it, to include the reported in-service grenade incident. c) Provide an opinion as to whether any current brain diagnosis is proximately due to, or aggravated by, the Veteran’s service-connected bilateral hearing loss, tinnitus, and migraine headaches. A complete rationale should be provided for all opinions provided. 4. Thereafter, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee