Citation Nr: 18160230 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 16-52 361 DATE: December 26, 2018 ORDER Reopening of a previously denied claim of service connection for a coronary artery disease (CAD) is denied. Reopening of a previously denied claim of service connection for atrial fibrillation(A-fib) (claimed as a heart condition as due to Agent Orange (AO)) is denied. Reopening of a previously denied claim of service connection for an acquired psychiatric disorder (to include posttraumatic stress disorder (PTSD)) is granted. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) (claimed as a respiratory condition due to AO exposure) is remanded. Entitlement to service connection for prostate hypertrophy (claimed as a prostate condition due to AO exposure) is remanded. Entitlement to service connection for a skin condition including dermatitis (claimed as skin fugus due to AO exposure) is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In an unappealed September 2012 rating decision, the RO denied service connection for CAD on the grounds that the evidence did not show a current disability. 2. Evidence obtained since the unappealed September 2012 rating decision that denied service connection for CAD is cumulative and redundant of other evidence of record, and does not raise a reasonable possibility of substantiating the claim. 3. In an unappealed September 2012 rating decision, the RO denied service connection for A-fib on the grounds that the evidence did not show any link between the claimed condition and the Veteran’s military service. 4. Evidence obtained since the unappealed September 2012 rating decision that denied service connection for an A-fib disability is cumulative and redundant of other evidence of record, and does not raise a reasonable possibility of substantiating the claim. 5. In an unappealed September 2012 rating decision, the RO denied service connection for an acquired physiatric disability to include PTSD on the grounds that the evidence on the grounds that the evidence did not show a current disability. 6. Evidence obtained since the unappealed September 2012 rating decision that denied service connection for an acquired physiatric disability to include PTSD is neither cumulative nor redundant of other evidence of record, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2012 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. The criteria for reopening the previously denied claim of entitlement to service connection for CAD have not been satisfied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for reopening the previously denied claim of entitlement to service connection for A-fib have not been satisfied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. The criteria for reopening the previously denied claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD have been satisfied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1969 to October 1971. The Veteran served in the Republic of Vietnam from December 8, 1970 to October 20, 1971. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Although the RO reopened the Veteran’s claims with regard to the CAD, A-fib, and acquired psychiatric disorder, the Board must independently decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). I. Reopened Claims Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran did not appeal the September 2012 decision, nor did he submit relevant evidence within a year thereof. The decision became final. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means 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). CAD The September 2012 decision denied service connection for CAD on the grounds that the evidence did not show a current disability. The relevant evidence of record considered by the RO in the final rating decision denying service connection consisted of the Veteran’s service treatment records (STRs) which were silent for any complaint, treatment, or diagnosis of a heart disability; VA treatment records; the Veteran’s lay statements; and December 2010 VA examination report indicating that the Veteran did not have a current disability. Since that time, voluminous VA treatment records have been associated with the claims file which are negative for any diagnosis of or treatment for CAD. The evidence shows that the Veteran does not have a current disability and simply reiterates the Veteran’s contention regarding the claim. The evidence is new but it is not material because it is redundant and cumulative of evidence previously of record with regard to both the Veteran’s assertions and evidence showing no current disability. As such the evidence does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. Reopening is not warranted. Atrial Fibrillation The September 2012 decision denied service connection for A-fib on the grounds that the evidence did not show a link between the current disability and the Veteran’s military service. The relevant evidence of record considered by the RO in the final rating decision denying service connection consisted of the Veteran’s STRs which were silent for any complaint, treatment, or diagnosis of A-fib; the Veteran’s lay statements; VA treatment records documenting complaints and treatment for A-fib; and an August 2010 VA examination report indicating that the Veteran was diagnosed in the mid 1990’s with A-fib. The RO denied service connection because the evidence failed to show a link between the current disability and the Veteran’s military service. Since that time, voluminous VA treatment records which show continued treatment for A-fib and the Veteran’s repested assertions have been added to the file. The evidence is new but it is not material because it is redundant and cumulative of evidence previously of record with regard to both the Veteran’s assertions and ongoing treatment for the condition. As such the evidence does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. Reopening of the claim is not warranted. Acquired Psychiatric Disorder The September 2012 rating decision denied service connection for posttraumatic stress disorder (PTSD) because the Veteran did not have a current diagnosis. The relevant evidence of record consists of STRs that were negative for any complaints, treatment, or diagnosis of a psychiatric disorder; an April 2012 VA examination report; and VA treatment records. The Board notes that although the Codesheet associated with the September 2012 decision lists the disability as including “any acquired psychiatric condition,” the notification solely addressed PTSD and ignored the listed diagnosis of another Axis I condition. Since that time, the Veteran has submitted lay assertions relating his current psychiatric disorders to his military service, detailing additional stressor events, and making more general statements regarding his fears of hostile enemy actions; and VA treatment records indicating that the Veteran has a history of depressed mood. This previously unconsidered evidence, at worst, requires additional development as it touches on the unestablished fact of current disability, and reopening is warranted. Adjudication of the Veteran’s claim does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claim. REASONS FOR REMAND COPD/Prostate Hypertrophy The Veteran asserts that his COPD and prostate hypertrophy are due to his service in Vietnam and exposure to AO. The Veteran was afforded a VA examination in January 2015, at which time the Veteran was diagnosed with COPD and prostate hypertrophy. However, the examiner did not provide an etiological opinion. Therefore, the examination is inadequate. On remand, a VA examination and etiological opinion must be obtained. Skin Fungus The Veteran is also seeking service connection for a skin fungus condition generally. The Veteran indicated that he did not have any skin condition before he entered service. However, while in Vietnam he developed a skin condition. The Veteran asserts that the condition he currently experiences are from his exposure to AO and active duty service in Vietnam. VA treatment records indicated that the Veteran sought treatment for dermatitis. The record indicates that the Veteran has not been afforded a VA examination for this claim. The Board finds that the low threshold requirement has been met for a VA examination, and that a remand is required to address the nature and etiology of the Veteran’s claimed skin condition. McLendon v. Nicholson, 20 Vet. App. 79, 81(2006). Acquired Psychiatric Disorder The duty to assist requires provision of an examination for this reopened claim. There is evidence of a current psychiatric disorder, as well as a valid in-service stressor. An opinion regarding a nexus is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA genitourinary examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current disabilities of the prostate and opine as to whether any such are at least as likely as not caused or aggravated by service, to include exposure to herbicides. 2. Schedule the Veteran for a VA respiratory examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current disabilities of the lungs and opine as to whether any such are at least as likely as not caused or aggravated by service, to include exposure to herbicides. COPD must be specifically discussed. 3. Schedule the Veteran for a VA skin conditions examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current disabilities of the skin and opine as to whether any such are at least as likely as not caused or aggravated by service. 4. Schedule the Veteran for a VA mental disorders/initial PTSD examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current mental health disabilities and opine as to whether any such are at least as likely as not caused or aggravated by service. Stressors based on fear of hostile enemy action should be considered verified. 5. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel