Citation Nr: 19190831 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 14-31 257 DATE: December 3, 2019 ORDER The application to reopen a claim of service connection for bilateral eye disability is granted. The application to reopen a claim of service connection for skin disability is granted. REMANDED Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for prostate disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for bilateral eye disability is remanded. Entitlement to service connection for skin disability is remanded. FINDINGS OF FACT 1. The Veteran’s claims of service connection for bilateral eye disability and skin disability were originally denied in a June 2007 rating decision on the basis that there was no medical evidence of any eye disability that was related to service and that the claimed skin disability did not have its onset in service and was not otherwise related to service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the June 2007 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to unestablished facts necessary to substantiate the claims of service connection for bilateral eye disability and skin disability, the absence of which was the basis of the previous denial. CONCLUSIONS OF LAW 1. The AOJ’s June 2007 rating decision which denied the claims of service connection for bilateral eye disability and skin disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.200, 20.302, 20.1103. 2. The evidence received since the June 2007 AOJ decision is new and material and reopening of the claims of service connection for bilateral eye disability and skin disability is therefore warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to September 1976. These matters come before the Board of Veterans’ Appeals (Board) from September 2011 and July 2013 rating decisions. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2019 hearing and a transcript of the hearing has been associated with his claims file. As for characterization of the issues on appeal, in light of the Veteran’s reported symptoms and contentions, and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claims of service connection for PTSD and depression with insomnia as a claim of service connection for psychiatric disability, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen claims of service connection for bilateral eye disability and skin disability The AOJ initially denied the Veteran’s claims of service connection for bilateral eye disability and skin disability in a June 2007 rating decision on the basis that there was no medical evidence of any eye disability that was related to service and that the claimed skin disability did not have its onset in service and was not otherwise related to service. The Veteran was notified of the AOJ’s June 2007 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the June 2007 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The pertinent new evidence received since the June 2007 denial of service connection for bilateral eye disability and skin disability includes a January 2013 VA eye comprehensive examination note, the Veteran’s testimony during the May 2019 Board hearing, and an article entitled “Agent Orange Tested in Panama in the 1960’s and 70’s” submitted by the Veteran in May 2019. This additional evidence includes a diagnosis of bilateral cataracts, a report by the Veteran of potential exposure to herbicide agents in Panama during service, and information pertaining to the potential presence of herbicides in Panama during the Veteran’s service. Certain skin disabilities are presumed to be associated with exposure to herbicide agents, including Agent Orange. See 38 C.F.R. § 3.309(e). In light of the above, the additional evidence pertains to elements of the claims that were previously found to be lacking and raises a reasonable possibility of substantiating the claims by indicating that the Veteran has current bilateral eye disability and that his claimed skin disability may be related to service. The evidence is, therefore, new and material, and the claims of service connection for bilateral eye disability and skin disability are reopened. REASONS FOR REMAND 1. Entitlement to service connection for psychiatric disability, to include PTSD, is remanded. The Veteran contends that he has current psychiatric disability, to include PTSD, that is related to stressors that he experienced in service while stationed in Panama. Specifically, he has reported that he witnessed the death of a fellow servicemember (J.Q.) when he drowned in the ocean and that a fellow service member was accidentally shot in the head by a ricocheting bullet. These service members were both stationed at Fort Kobbe in Panama and the Veteran’s service personnel records confirm that he served in Panama from February 1975 to September 1976. He and his wife have suggested that he has experienced psychiatric problems ever since his stressors in service. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for psychiatric disability because no VA examiner has determined the nature of any current psychiatric disability (to include whether the Veteran experiences PTSD) or opined whether any such disability is related to service. Therefore, an appropriate examination should be conducted upon remand. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, in light of the stressor information provided by the Veteran, the AOJ should complete all required development, to include contacting the U.S. Army and Joint Services Records Research Center (JSRRC), to attempt to corroborate the Veteran’s reported stressors from 1975 to 1976 in Panama in 60-day increments. See Gagne v. McDonald, 27 Vet. App. 397, 404 (2015). Moreover, the Veteran’s VA treatment records (including a November 2011 VA mental health consultation note) indicate that he received psychiatric treatment at the Vet Center in Princeton, West Virginia. A remand is required to allow VA to obtain authorization and request these relevant outstanding records. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Beckley Vista electronic records system (dated to June 2014) and the VA Boston Healthcare System (dated in November 2011). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for hypertension, erectile dysfunction, prostate disability, diabetes mellitus, bilateral eye disability, and skin disability are remanded. The Veteran contends that his claimed disabilities are related to his exposure to herbicide agents (including Agent Orange) while serving in Panama. VA has adopted specific procedures to determine whether a claimant was exposed to herbicide agents in locations other than the Republic of Vietnam, the Demilitarized Zone (DMZ) in Korea between April 1, 1968 and August 31, 1971, and Thailand. See VA’s Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 7(a) (March 27, 2018). The Board is not bound by VA’s Adjudication Manual, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), but it “is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases.” Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). In this case, the Veteran’s service personnel records confirm that he served in Panama from February 1975 to September 1976, he provided details during the May 2019 Board hearing about his potential exposure to herbicide agents while stationed in Panama, and he has submitted an article concerning the use of herbicide agents in Panama around the time of his service. In light of this evidence, the AOJ should complete all the necessary development as required by M21-1 to attempt to verify the Veteran’s claimed exposure to herbicide agents in service. Also, all outstanding VA treatment records should be secured upon remand. Moreover, since a decision on the remanded issue of entitlement to service connection for diabetes mellitus could significantly impact a decision on the issues of entitlement to service connection for bilateral eye disability, hypertension, and erectile dysfunction (insofar as these disabilities are potential complications of diabetes), the issues are inextricably intertwined. A remand of claims of service connection for bilateral eye disability, hypertension, and erectile dysfunction is, therefore, required. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for eye disability, skin disability, hypertension, erectile dysfunction, prostate disability, diabetes, and psychiatric disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for eye disability, skin disability, hypertension, erectile dysfunction, prostate disability, diabetes, and psychiatric disability from the Vet Center in Princeton, West Virginia and any other sufficiently identified private treatment provider from whom records have not already been obtained. 2. Undertake appropriate action, to include contacting the JSRRC (and any other appropriate source(s)), to attempt to verify the Veteran’s reported stressors during his period of service in Panama from approximately February 1975 to September 1976 (or any other specific time frame identified by the Veteran), in 60-day increments. These stressors include (a) the death of a fellow servicemember (J.Q.) when he drowned in the ocean while stationed at Fort Kobbe in Panama; and (b) the accidental shooting of a fellow service member while stationed at Fort Kobbe in Panama (see a January 2012 VA Form 21-0781, an April 2012 VA Form 21-4138, and the Veteran’s testimony during the May 2019 Board hearing). If more details are needed, contact the Veteran to request the information. 3. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents during his service in Panama, in accordance with the procedures outlined in M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 7 (March 27, 2018). Such development should include contact with the Compensation Service, the JSRRC, and/or any other appropriate source to attempt to verify the claimed herbicide agent exposure during the reported period, in 60-day increments (see the Veteran’s testimony during the May 2019 Board hearing and the article entitled “Agent Orange Tested in Panama in the 1960’s and 70’s” submitted by the Veteran in May 2019). If more details are needed, contact the Veteran and his representative to request the information. Also, follow up on any additional action suggested by the Compensation Service, the JSRRC, or other contacted entity. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran and his representative of VA’s inability to verify the in-service herbicide agent exposure. 4. Obtain the Veteran’s outstanding VA treatment records from the Beckley Vista electronic records system for the period since June 2014; the VA Boston Healthcare System for the period since November 2011; and all such relevant records from any other sufficiently identified VA facility. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any current psychiatric disability, to include PTSD. If the Veteran has experienced PTSD at any time since approximately October 2011, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to an in-service stressor. If the Veteran has experienced any psychiatric disability other than PTSD at any time since approximately October 2011, the examiner must opine whether each disability at least as likely as not (1) began during service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed psychosis); or (3) is related to an in-service injury, event, or disease, including his reported stressors in service. The examiner must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.