Citation Nr: 18154273 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 09-21 088 DATE: November 29, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened. The claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is granted. The claim of entitlement to service connection for a prostate disability, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. In a November 2009 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for PTSD. The Veteran did not file a Notice of Disagreement or submit new evidence within one year of the decision, and it became final. 2. Evidence has been received since the November 2009 rating decision that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 3. The evidence of record is at least in equipoise as to whether the Veteran has a present diagnosis of PTSD etiologically related to active duty service. 4. The Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam. 5. The Veteran’s claimed prostate disability was not incurred in or otherwise related to active duty service, to include as due to exposure to herbicide agents in Vietnam. CONCLUSIONS OF LAW 1. The November 2009 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 2. New and material evidence has been received since the November 2009 denial of the claim of entitlement to service connection for PTSD. 38 U.S.C. §§ 5103, 5108 (2012); 38 C.F.R. §§ 3.156, 3.303 (2018). 3. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 4. The criteria for entitlement to service connection for a prostate disability, to include as due to exposure to herbicide agents, have not been satisfied. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.309, 3.310(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from March 1966 to March 1968, including service in the Republic of Vietnam. The Veteran testified on the issue of entitlement to service connection for a prostate disability before the second undersigned VLJ in a March 2011 hearing. A transcript of that proceeding has been associated with the claims file. During the pendency of this appeal, the Veteran also appealed an October 2017 rating decision that reopened but denied the issue of entitlement to service connection for PTSD. The Veteran filed a Substantive Appeal in July 2018 that declined a hearing on the issues, and the claims were merged into this appeal. As this case was heard by the current Chairman of the Board before her appointment, a panel decision is necessary in order to fully and fairly adjudicate the issues on appeal. As proceeding may not be assigned to the Chairman as an individual member, the Chairman may participate in a proceeding assigned to a panel or in a reconsideration assigned to a panel of members. Accordingly, two Veterans Law Judges participated in the adjudication of this appeal. See 38 U.S.C. § 7102 (b). Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board is broadening the Veteran’s claim of entitlement to service connection for PTSD to a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as reflected in the issues section above. New and Material Evidence 1. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened The Regional Office (RO) initially denied entitlement to service connection for PTSD in a November 2009 rating that subsequently became final. In July 2017, the Veteran submitted medical evidence establishing a present diagnosis of PTSD, and an etiological link with his active duty service in Vietnam. The bar to reopening a claim for new and material evidence is low, and the Veteran’s evidence of a present disability of PTSD meets that threshold. Therefore, the evidence is new and material, and the claim for service connection for an acquired psychiatric disorder, to include PTSD, is reopened. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110. A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303. 2. The claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran contends that he is entitled to service connection for PTSD. Service connection for PTSD requires: (1) medical evidence establishing a clear diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. § 3.304 (f). As the Veteran’s personnel records reflect service in the Republic of Vietnam, and he reported engaging in combat activities, and feared hostile military activity, lay statements may be used to corroborate his claimed stressor. Specifically, the Veteran reported being bothered by the death of a sergeant that occurred during the first shelling of his base after he arrived in Vietnam. The Board concludes that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD that is etiologically related to active duty service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Resolving reasonable doubt in favor of the Veteran, service connection is warranted. In July 2017, the Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by a private clinician that diagnosed him with PTSD and major neurocognitive disorder. The Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas. The clinician concluded that the Veteran’s PTSD was a direct result of traumatic experiences that occurred during service. The Veteran’s DD-214 also reflects that he received the Vietnam Service Medal (VSM) and the Vietnam Campaign Medal (VCM). 38 C.F.R. §3.304(f)(3) no longer requires the verification of an in-service stressor if the Veteran was in a location involving “fear of hostile military or terrorist activity.” Such a location can be evidenced by awards such as the Iraq Campaign Medal or the Vietnam Service Medal. Lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. In the present case, the record clearly demonstrates service in the Republic of Vietnam. Further, a psychologist has determined that the Veteran’s current disability is related to military service. The Board acknowledges that the October 2009 and September 2017 VA examinations did not diagnose the Veteran with PTSD, and subsequent VA treatment records similarly did not diagnose the Veteran with PTSD. Even as such, the evidence is at least in equipoise as to whether the Veteran has a present diagnosis of PTSD that is etiologically related to service. According to a July 2017 DBQ report, the Veteran suffered from PTSD as a direct result of traumatic experiences that occurred during service. Regarding all reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. See 38 U.S.C. § 5107(b). 3. The claim of entitlement to service connection for a prostate disability, to include as due to herbicide agent exposure The Veteran contends that he is entitled to service connection for a prostate disability, to include as due to exposure to herbicide agents during service in Vietnam. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116 (f) and 38 C.F.R. § 3.307 (a)(6)(iii). 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). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected 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 that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin’s disease, ischemic heart disease (including, but not limited to, 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), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27630 -27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicide agents may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. The Veteran served in Vietnam from December 1966 to December 1967. Accordingly, exposure to herbicide agents is presumed. While prostate cancer is presumptively service connected under 38 C.F.R. § 3.309, the Veteran does not have a diagnosis of prostate cancer. Rather, the Veteran’s diagnosis is benign prostatic hypertrophy, or an enlarged prostate. Accordingly, the Veteran’s claimed disability is not subject to the provisions of 38 C.F.R. § 3.309, and must proceed under the theory of direct service connection. The Veteran’s March 1966 induction examination does not note any preexisting conditions pertaining to the Veteran’s prostate or urinary function. Similarly, the Veteran’s February 1968 separation examination does not note urinary complaints, prostate problems, or erectile dysfunction. In July 2007, post-service medical records reflect a diagnosis of benign prostatic hypertrophy with frequent nocturia, and some hesitancy and difficulty starting a stream. Examination revealed an enlarged prostate that was nontender and non-nodular. In August 2007, records reflect that the Veteran started taking medication for erectile dysfunction in May 2005, which was diagnosed in April 2005. The Veteran began medication for benign prostatic hypertrophy in July 2007 with very satisfactory results. In November 2007, VA treatment records note a history of erectile dysfunction and benign prostatic hypertrophy with an enlarged, smooth prostate. At a January 2008 Agent Orange registry examination, he reported a diagnosis of benign prostatic hypertrophy and erectile dysfunction since December 2007. In November 2009, VA treatment records reflect that the Veteran’s prostate was small and nontender. In January 2010, the Veteran denied incontinence, nocturia, frequency or dysuria. In a February 2010 Decision Review Officer hearing, the Veteran stated that he did not have prostate issues in service, but did experience trouble maintaining erections. In July 2010, private medical records reflect an ongoing diagnosis of benign prostatic hypertrophy with good urine flow. The Veteran experienced some difficulty initiating a stream after waking up, but experienced no difficulties as the day went on. In September 2010, VA treatment records noted that his benign prostatic hypertrophy was stable. In March 2011, the Veteran testified in a Travel Board hearing before one of the undersigned VLJs. The Veteran denied symptoms of a urinary disorder or prostate symptoms during active duty service. He reported seeking treatment for difficulty urinating in the 1990’s. In May 2011, the Veteran submitted a statement reporting the onset of difficulty urinating in the 1990’s. In a May 2011 VA examination, the Veteran reported an onset of prostate symptoms in the 1980’s. He endorsed trouble urinating in the mornings that had become progressively worse over time. The Veteran reported symptoms of hesitancy and difficulty starting a stream, weak or intermittent stream, dysuria, dribbling, urinary frequency between 2 to 3 hours, and nocturia twice per night. Examination revealed a generally enlarged prostate with prostate-specific antigen (PSA) of .39. The examiner concluded that the Veteran’s condition was not caused by or a result of his service in Vietnam. The examiner determined that his enlarged prostate was a natural development of the aging process. In July 2012, the Veteran’s former spouse submitted a statement that, while they were married, the Veteran had to run the water in the bathroom to facilitate urination. A specific date for this practice was not provided. A July 2013 VA examination addendum reported that the Veteran’s diagnosis of benign prostatic hypertrophy occurred naturally in the aging process of middle aged and older men. There was no scientific connection with exposure to Agent Orange. Additionally, benign prostatic hypertrophy did not cause erectile dysfunction, or vice versa. A review of scientific literature revealed no articles suggesting a connection between Agent Orange and benign prostatic hypertrophy or erectile dysfunction. In November 2015, a second addendum opinion was obtained regarding the etiology of the Veteran’s benign prostatic hypertrophy. The examiner concluded that the condition was less likely than not incurred in or caused by active duty service. The examiner reviewed the Veteran’s complete claims file, including his service treatment records. Service treatment records failed to establish a nexus between time and events in service, and the development of post-service benign prostatic hypertrophy, or other prostate-related conditions. On examination, the Veteran’s prostate was normal. In December 2016, the Veteran submitted a statement reporting that a doctor in the 1970’s or 1980’s informed him that he was the youngest patient the doctor had seen with an enlarged prostate. In September 2017 specialized medical opinion regarding the etiology of the Veteran’s benign prostatic hypertrophy, the examiner noted that, despite one claim of difficulty urinating in June 1970 when he was stabbed in the low back, the Veteran was not diagnosed until 2007 with benign prostatic hypertrophy. The examiner also noted that there was no chronicity or continuity of care for any prostate condition until 2007. The examiner noted that the National Institutes on Aging reported that prostate problems are common after the age of 50, and benign prostatic hypertrophy is most commonly a disease that increases in incidence with age. Approximately half of men have the condition by the age of 50. Accordingly, the examiner concluded that the Veteran’s benign prostatic hypertrophy was less likely as not due to or aggravated by his active duty service, including exposure to herbicide agents. The medical evidence of record reflects an approximate diagnosis of benign prostatic hypertrophy in 2007, which stemmed from difficulty urinating and erectile dysfunction as reported by the Veteran. Multiple VA examiners concluded that the Veteran’s benign prostatic hypertrophy is not etiologically related to active duty service, including exposure to herbicide agents. A specialized medical opinion was obtained in September 2017 that denied an etiological relationship between benign prostatic hypertrophy and active duty service. Specifically, examiners of record consistently indicated that the condition is a natural part of the aging process. As discussed above, the Veteran provided statements regarding the onset of symptomatology associated with a prostate disorder, and the Veteran is competent to describe these symptoms observable to a lay person. However, the Board notes that the Veteran provided inconsistent statements regarding the timing of his erectile dysfunction symptoms and his urinary difficulties. The Veteran’s private medical records note a diagnosis of erectile dysfunction in 2005, and of benign prostatic hypertrophy in 2007. He reported onset of both conditions as December 2007 in his January 2008 Agent Orange Registry examination. In February 2010, he denied prostate problems in service, but endorsed erectile dysfunction. However, in his March 2011 hearing, he stated that he initially sought treatment for urinary symptoms in the 1990’s. In May 2011, he reported an onset in the 1980’s with much more severe and frequent symptoms than reflected in his medical treatment records. Finally, in December 2016, he reported prostate symptoms beginning in the 1970’s or 1980’s. The Board must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). Regarding issues of credibility, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Such inconsistent statements described above surrounding the approximate onset of observable symptomatology lessen the probative value of the Veteran’s statements regarding the onset of the prostate condition. Due to the diminished probative weight of the Veteran’s statement, particularly as contrasted with documented medical treatment records associated with the claims file, the Board finds that an alternative showing of a temporal nexus by manifestation of prostate symptoms within one year of active duty service has not been proven by the Veteran’s lay testimony. In sum, the competent, probative evidence of record weighs against a finding of service connection for a prostate condition, to include as due to exposure to herbicide agents. Medical evidence of record indicates onset decades after active duty service. Probative medical opinions of record also point to the high instance of developing benign prostatic hypertrophy as males age as the probable cause of the Veteran’s condition. While the Veteran believes his benign prostatic hypertrophy is related to exposure to herbicide agents in Vietnam, the preponderance of the competent, probative evidence of record disagrees. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for a prostate disability, to include as due to exposure to herbicide agents, must be denied. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans’ Appeals B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel