Citation Nr: 18144157 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 16-25 303 DATE: October 24, 2018 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), schizoaffective disorder, and depressive disorder. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, schizoaffective disorder, and depressive disorder is granted. REMANDED Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, is remanded. FINDINGS OF FACT 1. A May 1993 rating decision denied service connection for an acquired psychiatric disorder; the Veteran did not appeal this decision, or provide new and material evidence within one year, and the decision became final. 2. Since the final May 1993 decision denying service connection for an acquired psychiatric disorder, evidence relating to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim, has been received. 3. The Veteran’s acquired psychiatric disorder was caused by the Veteran’s active service. CONCLUSIONS OF LAW 1. The May 1993 rating decision denying service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim for service connection for an acquired psychiatric disorder, based on new and material evidence, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to August 1970. In June 2016, the Veteran submitted a substantive appeal and requested a hearing before the Board of Veterans’ Appeals (Board). In August 2017, the Board received written correspondence signed by the Veteran indicating his desire to withdraw his request for a Board hearing. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e). As a function of the Board’s de novo review authority, the Board has recharacterized the Veteran’s service connection claims for PTSD with schizoaffective disorder and depression into one claim for an acquired psychiatric disorder, to include PTSD, schizoaffective disorder, and depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). New and Material Service connection for an acquired psychiatric disorder was denied in a May 1993 rating decision. The decision became final as the Veteran did not submit a Notice of Disagreement or submit new evidence. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Rating decisions in January 1998 and November 2001 denied reopening the Veteran’s claim for failing to submit new and material evidence. The relevant evidence received since the final denial consists of a new medical evidence to include a private July 2017 examination. The new medical evidence, as noted below, tends to substantiate the Veteran’s claim. Thus, this newly received evidence, when considering evidence previous of record, relates to unestablished facts necessary to reopen the previously denied claim of service connection. Therefore, the Board concludes that this claim may be reopened due to new and material evidence. 38 C.F.R. § 3.156(a). The next question is whether the Board can conduct a de novo review without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Because the Board is granting service connection for an acquired psychiatric disorder, the Board finds no prejudice to the Veteran based on de novo review of the claim. Service Connection The Veteran contends that his psychiatric disorders are a result of a physical assaults and harassment he endured during active service due to his status as an Asian-American during the Vietnam era. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran submitted a July 2017 opinion from psychologist G.E.B., Ph.D. This doctor diagnosed PTSD and major depressive disorder, recurrent and severe with psychotic features. Based on a complete review of the Veteran’s VA claims file and an interview with the Veteran, the examiner opined the Veteran’s acquired psychiatric disorder was as likely as not related to the Veteran’s experiences during active military service. A review of the record shows there is no contrary opinion of record to refute the findings of the July 2017 private examination. As the Veteran has provided a credible and competent nexus opinion in favor of the claim, service connection for an acquired psychiatric disorder is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure is remanded In June 2013, VA issued a formal finding, determining the herbicide exposure could not be conceded as the Veteran was not assigned to one of the specified units along the Korean DMZ. Although the Veteran served in Korea, he specified he never served along the DMZ, and he witnessed the spraying of herbicides. See December 2012 statement. The Veteran also provided supporting lay evidence in November 2012, December 2012, and June 2016. The Board finds that VA failed to properly verify herbicide exposure, as the Veteran did not contend he was exposed to herbicides along the Korean DMZ. Therefore, the Board finds that the steps outlined in M21-1, Part. IV, Subpart ii, 1.H.7.c., Developing Claims Based on Herbicide Exposure in Other Locations, must be followed in order to determine whether or not the Veteran was exposed to herbicides such as Agent Orange. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus is remanded Finally, because a decision on the remanded issue of entitlement to service connection for diabetes mellitus could significantly impact a decision on the issue of entitlement to service connection for erectile dysfunction secondary to diabetes mellitus, the issues are inextricably intertwined. Accordingly, a remand of the claim for erectile dysfucntion is required. The matters are REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records regarding the Veteran’s diabetes mellitus and erectile dysfunction conditions in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. Take all steps outlined in in M21-1, Part. IV, Subpart ii, 1.H.7.c. to confirm whether it is as likely as not that the Veteran was exposed to herbicides such as Agent Orange, noting the Veteran’s contentions in his December 2012 statement and elsewhere in the record. After the development has been completed, a formal finding as to whether it is as likely as not that the Veteran was exposed to herbicides such as Agent Orange should be made and a memorandum of this determination should be placed in the claims file. 3. After the completion of the development requested, IF the Veteran is shown to have been exposed to herbicides during service, forward the claims file to a qualified medical professional to provide an examination and opinion as to the nature and etiology of any erectile dysfunction. The examiner is asked to address the following: (a.) Does the Veteran have erectile dysfunction; and (b.) If the Veteran has erectile dysfunction, provide an opinion as to whether the erectile dysfunction at least as likely as not (a 50 percent or greater probability) had its onset during or is otherwise related to any event or injury during the Veteran’s active duty, or at least as likely as not was caused or aggravated (increased in severity beyond the natural progress of the disorder) by diabetes mellitus. All opinions must be supported by a detailed rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel