Citation Nr: 18144050 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 16-24 790 DATE: October 23, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for hyperthyroidism. New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for hyperthyroidism is granted. Entitlement to service connection for a heart disability is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for depression as secondary to service-connected coronary artery disease and PTSD is granted. FINDINGS OF FACT 1. An October 1973 rating decision denied service connection for hyperthyroidism and “nervousness;” the Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the October 1973 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the Veteran’s claims for entitlement to service connection for hyperthyroidism and an acquired psychiatric disorder. 3. The Veteran does not have bilateral hearing loss to an extent recognized for VA disability purposes. 4. The Veteran’s hyperthyroidism is related to active service. 5. The Veteran’s heart disability is proximately due to his hyperthyroidism. 6. The Veteran’s PTSD had its onset during active service. 7. The Veteran’s depression is proximately due to his service-connected coronary artery disease and PTSD. CONCLUSIONS OF LAW 1. The October 1973 rating decision denying the claim of entitlement to service connection for hyperthyroidism and an acquired psychiatric disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for hyperthyroidism. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for entitlement to service connection for hyperthyroidism are met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. § 3.303. 5. The criteria for secondary service connection for a heart disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for entitlement to service connection for PTSD are met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.303(a), 3.304(f), 3.655. 7. The criteria for depression as secondary to service-connected coronary artery disease and PTSD are met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1967 to September 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence 1. New and material evidence has been received to reopen the issue of entitlement to service connection for hyperthyroidism. 2. New and material evidence has been received to reopen the issue of entitlement to service connection for an acquired psychiatric disorder. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as 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 RO denied the Veteran’s claim for service connection for hyperthyroidism and “nervousness” (an acquired psychiatric disorder) in an October 1973 rating decision. The Veteran was informed of this decision in January 1974, he did not appeal the decision, and new and material evidence was not received within one year of notice of the decision. Thus, the October 1973 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Evidence received more than one year since the October 1973 rating decision constitutes new and material evidence in regard to the Veteran’s hyperthyroidism claim. Specifically, a November 2014 Disability Benefit Questionnaire (DBQ) where the examiner relates the Veteran’s hyperthyroidism to the lack of iodine in the water during his Vietnam service and a 2017 report from private psychologist J. H. S. linking PTSD to service. This evidence is new as it was not previously considered by the RO. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claims. As such, the Veteran has presented new and material evidence to reopen the previously denied claims of entitlement to service connection for hyperthyroidism and an acquired psychiatric disorder, and the claims are reopened. Service Connection Service connection may be established for a disability resulting from injury or disease incurred during or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish service connection the evidence must show: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In order to be considered for service connection, a claimant must first have a current disability. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases shall be service-connected if the Veteran was exposed to an herbicide agent during 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 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Ischemic heart disease is listed under 38 C.F.R. § 3.309(e) as a disability being presumptively related to herbicide exposure. 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 2010). Ischemic heart disease is defined as “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.” 38 C.F.R. § 3.309(e). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 3. Entitlement to service connection for bilateral hearing loss is denied. The Veteran asserts that his bilateral hearing loss is due his military occupational specialty (MOS) as a construction machine operator. Specifically, he maintains that duties of his MOS exposed him to hazardous noise, including loud gunfire and heavy equipment explosions, during the Vietnam war. See November 2011 Notice of Disagreement (NOD); DD Form 214. In regard to the first element, the Veteran does not have a current hearing loss disability for VA purposes in either ear. Specifically, the June 2010 VA examiner noted the Veteran’s hearing acuity as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 20 35 LEFT 10 10 5 25 20 Speech recognition was 100 percent in both ears. Additionally, the September 2010 VA examiner noted the Veteran’s hearing acuity as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 25 35 LEFT 10 10 10 25 25 Speech recognition was 100 percent in both ears. These findings do not reflect the presence of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. As there is no other audiometric testing during the appeal period that reveals otherwise, there is no competent evidence that demonstrates bilateral hearing loss for VA purposes, and the claim for bilateral hearing loss is denied on this basis alone. Id; see also Brammer at 225. To the extent the Veteran asserts that he has a bilateral hearing loss disability, his opinion is not competent, as the VA has specifically determined audiometric findings that represent hearing loss for VA purposes. In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal and service connection for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for hyperthyroidism, to include as due to herbicide agent exposure, is granted. The Veteran asserts his hyperthyroidism is due to lack of iodine in the water and herbicide agent exposure in Vietnam. See November 2011 NOD. As the discussion below is favorable regarding service connection due to a lack of iodine in the water in Vietnam, no other theories of entitlement will be addressed. Regarding a current disability, the Veteran has a diagnosis of hyperthyroidism. See February 2009 private treatment record and November 2014 DBQ. Thus, element one is met. As to element two, in-service incurrence of a disease or injury, the Veteran’s service treatment records (STRs) are silent for complaints, treatment, or diagnoses for any thyroid conditions. However, the Board finds the Veteran’s report of lack of iodine in the water in Vietnam is credible and consistent with the circumstances of his service. 38 U.S.C. § 1154(a). In this regard, the Board emphasizes that he was diagnosed with Grave’s disease and hyperthyroidism only three years post-service. See June 1973 and July 1973 post-service hospital records. Thus, for reasons outlined below element two is also met. As to element three, nexus, an opinion from the November 2014 examiner substantiates the claim. Specifically, after a thorough review of the claims file, he opined that it is at least as likely as not that the Veteran’s hyperthyroidism was incurred in or caused by environmental exposure of low iodine in the drinking water while serving in Vietnam. In support of his opinion, he stated that due his medical training and experience and personal experience of having been physically in Vietnam during the years of 1963-1964 as a medical officer and flight surgeon, there was a known high incidence of goiter due to inadequate iodine intake. Moreover, he noted that the area of Vietnam was known to have a higher than normal prevalence of thyroid disease and specifically goiter due to the inadequate intake of iodine and lack of iodine supplementation in the indigenous population. To this end, he indicated that this environmental exposure would therefore expose any of the American troops stationed in the area to also have a greater risk to developing any condition which might result from low iodine intake. The Board finds that this opinion tends to demonstrate that there is a relationship between environmental exposure to low iodine in the drinking water in Vietnam and the Veteran’s current hyperthyroidism disability. Albeit quite brief, the examiner took the Veteran’s lay statements into consideration and provided an understandable and rational basis for the opinion, which relied on an accurate history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Further, the Board finds nothing in the record to doubt the qualifications of the November 2014 examiner and thus finds this medical opinion to be competent. For these reasons, the Board affords this opinion high probative value. Additionally, there is no competent evidence to the contrary. Accordingly, service connection for hyperthyroidism is granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 5. Entitlement to service connection for a heart disability. The Veteran asserts his heart disability is due to his thyroid disability. There is conflicting evidence of record as to the nature of the Veteran’s heart disability, as the presence of ischemic heart disease would allow for presumptive service connection based on conceded herbicide agent exposure in Vietnam. While an August 2009 physician diagnosed the Veteran with coronary artery disease-atrial flutter, cardiomyopathy, pacemaker implant, the November 2014 and April 2016 VA examiners found no coronary artery disease or ischemic heart disease diagnoses, instead diagnosing supraventricular arrhythmia, atrial fibrillation, and congestive heart failure and supporting their opinions with robust rationales. Although the preponderance of the competent evidence indicates that the Veteran does not have ischemic heart disease, the competent medical evidence also attributes the Veteran’s current heart disability to his service-connected thyroid disability. See November 2014 DBQ; 2009 private treatment records. Accordingly, secondary service connection is warranted. 38 C.F.R. § 3.310. 6. Entitlement to service connection for PTSD is granted. 7. Entitlement to service connection for depression as secondary to service-connected coronary artery disease and PTSD is granted. The Veteran asserts that his PTSD began during service as a result of his combat exposure in Vietnam. Specifically, he recalls that two traumatic incidents including witnessing a Vietnamese person being blown up in a JP4 blivet by an American tracer and the aftermath of a perimeter breach by the Vietnamese soldiers and having to pick up dead bodies and body parts and bury them in mass graves using dump trucks. Additionally, he maintains that symptoms of his PTSD including flashbacks of the dead bodies began following these incidents. See October 2009 VA Form 21-0781 and accompanying letter. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2); see also 38 U.S.C. § 1154(b). The Veteran has a current diagnosis for PTSD. See March 2017 private treatment record. Thus, element one is met. Regarding elements two and three, in-service stressor and nexus, the Veteran has reported in-service stressors including witnessing multiple deaths and burying dead bodies during the Vietnam war. As the Board finds he engaged in combat and his stressors are consistent with such service, they are established by his lay statements alone under 38 C.F.R. § 3.304(f)(2). Moreover, the March 2017 private psychologist J. H. S., who diagnosed the Veteran with PTSD noted the Veteran’s lay statements about witnessing many civilian and servicemembers deaths and burying dead bodies and indicated the evidence suggests a significant deficit in the interpersonal, social, vocational, and avocational areas of his life which are clearly linked to his traumatic war service. He also noted that the Veteran’s PTSD likely emerged with delayed expression as the full criteria for PTSD were not met until at least six months after the event. Albeit quite brief, the Board finds that this opinion establishes a medical link between current symptoms of his PTSD and in-service stressors related to combat exposure during the Vietnam war, as J. H. S. took the Veteran’s lay statements into consideration and provided an understandable and rational basis for the opinion that relied on an accurate history. See Nieves-Rodriguez, at 302 (2008). Thus, elements two and three are also met. In sum, the Board finds that the Veteran’s PTSD had its onset during service and is due to in-service stressors related to his combat in Vietnam. Therefore, service connection for PTSD is warranted. Additionally, a May 2010 VA examiner diagnosed the Veteran with “depression due to heart disease” and J. H. S. diagnosed him with “depression related to medical problems.” Moreover, J. H. S. found that his depression is due to now service-connected PTSD and medical conditions that are very limiting and lead to chronic and severe pain. Thus, service connection for depression as secondary to service-connected coronary artery disease and PTSD is also warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel