Citation Nr: 20002109 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-62 259 DATE: January 9, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, anxiety, is granted. New and material evidence having been received, the petition to reopen the claim for service connection for squamous cell carcinoma (previously claimed as throat cancer) due to herbicide exposure is granted. New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for lung scars secondary to squamous cell carcinoma (claimed as throat cancer) is granted. New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for a gastrointestinal disorder (previously evaluated as a psychophysiological gastrointestinal condition) secondary to the now service-connected psychiatric disorder, is granted. Entitlement to service connection for a gastrointestinal disorder secondary to the Veteran’s now service-connected psychiatric disorder is granted. REMANDED Entitlement to service connection for squamous cell carcinoma (claimed as throat cancer) due to herbicide exposure is remanded. Entitlement to service connection for lung scars secondary to squamous cell carcinoma (claimed as throat cancer) is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for squamous cell carcinoma (previously claimed as throat cancer) due to herbicide exposure, lung scars secondary to squamous cell carcinoma (claimed as throat cancer), and a gastrointestinal disorder was most recently denied in a February 2013 rating decision. 2. The Veteran did not submit new and material evidence, nor otherwise file an appeal during the allowed one-year appellate period following the February 2013 rating decision and that decision became final. 3. Since the February 2013 rating decision, new and material evidence has been received for the claims of service connection for squamous cell carcinoma (previously claimed as throat cancer) due to herbicide exposure, lung scars, and a gastrointestinal disorder previously evaluated as a psychophysiological gastrointestinal condition. 4. The Veteran’s acquired psychiatric disorder, anxiety, is related to service. 5. The Veteran’s gastrointestinal disorder is caused by his now service-connected acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, anxiety, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. New and material evidence has been received and the claims seeking service connection for squamous cell carcinoma (previously claimed as throat cancer) due to herbicide exposure, lung scars secondary to squamous cell carcinoma (claimed as throat cancer), and a gastrointestinal disorder (previously evaluated as a psychophysiological gastrointestinal condition) are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a gastrointestinal disorder as secondary to the Veteran’s now service-connected psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from May 1966 to April 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge at a Board Hearing in August 2019. A transcript of that proceeding has been associated with the claims folder. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the medical evidence of record indicates that in the past, the Veteran has received multiple diagnoses such as anxiety, depression, and PTSD, the issue of entitlement to service connection has been expanded as noted above, consistent with Clemons. New and Material Evidence 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. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. New and material evidence has been received to reopen the claim for squamous cell carcinoma (previously claimed as throat cancer) due to herbicide exposure. The RO denied the Veteran’s claim of service connection for squamous cell carcinoma (previously claimed as throat cancer) in a February 2013 rating decision, finding that there was no link between Veteran’s squamous cell carcinoma and the presumptive conditions associated with herbicide exposure. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the February 2013 rating decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The Board finds new and material evidence has been submitted since the February 2013 rating decision. See 38 C.F.R. § 3.156. For example, the Veteran gave lay testimony at the August 2019 Board Hearing that indicates that he was exposed to herbicides as a result of his military occupational specialty (MOS) in Vietnam. His MOS required him to recover jet fuel and diesel on the rice paddies. See August 2019 Board Hearing Transcript. This new evidence addresses the reason for the previous denial; that is, a nexus, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for lung scars secondary to squamous cell carcinoma (claimed as throat cancer). The RO denied the Veteran’s claim of service connection for lung scars in a February 2013 rating decision. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The Veteran filed a claim to reopen in October 2014. The RO denied reopening the February 2013 in an October 2014 rating decision as no new and material evidence had been submitted. The Board finds new and material evidence has been submitted since the February 2013 rating decision. See 38 C.F.R. § 3.156. For example, the Veteran gave lay testimony at the August 2019 Board Hearing about his contention that his lung scars are as a result of treatment for his squamous cell carcinoma. This new evidence raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 3. New and material evidence has been received to reopen the claim for entitlement to service connection for a gastrointestinal disorder (previously evaluated as a psychophysiological gastrointestinal condition) The RO denied the Veteran’s claim of service connection for a gastrointestinal disorder in a rating decision in September 1968 and a Statement of the Case (SOC) issued January 1969 confirmed the denial. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within 60 days of the SOC. He submitted evidence in March 1969, but the RO determined it was not new and material as it was duplicative of previously submitted and considered evidence, and thus denied the claim again in a March 1969 rating decision. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the rating decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The Veteran filed a claim for a gastrointestinal disorder in August 2011. In a February 2013 rating decision, the RO reopened the claim and denied it due to no in-service occurrence. The Veteran filed a Notice of Disagreement in May 2013 and an SOC was issued September 2013. The Veteran did not appeal the decision or submit new and material evidence within 60 days of the SOC. Thus, the decision became final. In October 2014 the Veteran filed a claim to reopen his claim of entitlement to service connection for his gastrointestinal disorder. In a June 2015 rating decision, the RO denied the claim because it found no new and material evidence had been submitted. The evidence received since the February 2013 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran gave lay testimony about his gastrointestinal disorder at the August 2019 Board Hearing and was given a VA Examination in December 2016. This new evidence addresses the reason for the previous denial; that is, in service exposure to herbicide agents including Agent Orange, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, and depression, posttraumatic stress disorder (PTSD) (previously claimed as a mental condition) is granted. The Veteran contends that his acquired psychiatric disorder was caused by service. The Veteran has a current diagnosis of anxiety and major depressive disorder. See October 1980 Private Treatment Records, June 2015 and June 2019 VA Examinations. The Veteran was afforded a VA examination in June 2015. The VA examiner indicated that the Veteran does not have a diagnosis of PTSD, as he does not meet the criteria for a diagnosis under the DSM-5. However, the examiner indicated the Veteran does have a diagnosis of anxiety and major depressive disorder. See June 2015 VA Examination. The examiner opined that the Veteran’s major depressive disorder was less likely as not incurred in or caused by military service. The examiner based his opinion on lay testimony from the Veteran that his depression did not onset until the 1990s and that there is nothing in his service records to provide a nexus for his depressive symptoms. Id. However, the examiner indicated the Veteran’s anxiety was at least as likely as not incurred in or caused by the Veteran’s military service. The Veteran underwent another VA examination in June 2019. The VA examiner opined that the Veteran does not have a diagnosis for PTSD as he does not meet the criteria under the DSM-5. However, the examiner indicated the Veteran does have a diagnosis of anxiety and major depressive disorder. See June 2019 VA Examination. The examiner opined that the Veteran’s anxiety was at least as likely as not incurred in or caused by his military service. The examiner indicated that the Veteran’s reported symptoms are more consistent with anxiety and there does appear to be a connection between his anxiety and his service in Vietnam. Id. The examiner further indicated the Veteran’s major depressive disorder is less likely than not incurred in or caused by his military service. The examiner indicated that there is insufficient evidence to support connection of the Veteran’s depression and his military service. Based on the June 2015 and June 2019 VA examinations, the Board finds the Veteran does not have a diagnosis of PTSD and thus is not entitled to service connection for PTSD. In addition, as both the June 2015 and June 2019 VA examiners indicated it is less likely than not that the Veteran’s major depressive disorder is related to the Veteran’s service, the Board finds a preponderance of the evidence weighs against finding the Veteran’s major depressive disorder is etiologically related to his service. However, as both the June 2015 and June 2019 VA examiners find the Veteran’s anxiety to be as likely as not related to service, the Board finds service connection is warranted. Therefore, the claim for entitlement to service connection for an acquired psychiatric disorder, specifically for anxiety, is granted. 2. Entitlement to service connection for a gastrointestinal disorder secondary to the Veteran’s now service-connected psychiatric disorder is granted. The Veteran contends that he is entitled to service connection for his gastrointestinal disorder because it was caused by his now service-connected psychiatric disorder. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran indicated in his December 1968 Statement in Support of Claim that his gastrointestinal disorder began a month to two weeks before his service ended in April 1968. See December 1968 VA Form 21-4138. In addition, the Veteran was hospitalized for fourteen days due to his gastrointestinal disorder in August 1968. See August 1968 VA Treatment Record. The treatment records indicate that the Veteran reported the onset of his condition during service right before discharge. He was diagnosed with a psychophysiological gastrointestinal disorder. Id. Thus, the first element of secondary service connection has been established. Allen, 7 Vet. App at 448. The Veteran was afforded a VA examination in December 2016. However, the examiner rendered an opinion that only addressed whether the Veteran’s condition preexisted service and was aggravated by service. The Veteran was afforded another VA examination in June 2019. The examiner indicated that “medical records within months of [the Veteran’s] military separation indicates a connection between his gastrointestinal problems and his emotional state (most likely anxiety.” See June 2019 VA Examination. The Board finds the second element of secondary service connection has been established. Therefore, the Board finds the evidence is sufficient to support a grant of entitlement to service connection for a gastrointestinal disorder secondary to the Veteran’s now service-connected psychiatric disorder, and the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for squamous cell carcinoma (claimed as throat cancer) due to herbicide exposure is remanded. The Veteran contends that his squamous cell carcinoma (claimed as throat cancer) was as a result to of herbicide exposure during his service in Vietnam. The Veteran was afforded a VA examination in October 2011. The examiner indicated the Veteran was diagnosed with squamous cell carcinoma in October 2006. See October 2011 VA Examination. However, the examiner did not offer an etiology opinion as to the Veteran’s squamous cell carcinoma (claimed as throat cancer) and whether it had its onset or was due to service or herbicide exposure. Therefore, the October 2011 examination is inadequate for adjudication purposes and the Veteran must be afforded a new examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, the examiner should address both a direct theory of service connection and presumptive due to herbicide exposure in Vietnam. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 2. Entitlement to service connection for lung scars secondary to his squamous cell carcinoma (claimed as throat cancer) is remanded. The Veteran contends that his lung scars are due to the treatment for his squamous cell carcinoma (claimed as throat cancer). See August 2019 Board Hearing Transcript. The Veteran was afforded a VA examination in October 2011. The VA examiner indicated that the Veteran does not have any scars related to his diagnosed condition of squamous cell carcinoma. See October 2011 VA Examination. However, it is unclear whether the examiner is addressing internal or external scarring. The Veteran indicated at the Board Hearing that he has scarring in his lungs as a result of the treatment for his squamous cell carcinoma. Id. The Board finds the October 2011 VA examination inadequate for adjudicatory purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, a remand is warranted for an addendum opinion addressing the etiology of any lung scars to include as a result of treatment for the Veteran’s squamous cell carcinoma. The matters are REMANDED for the following action: 1. Obtain any relevant outstanding VA treatment records and associate them with the claims file. 2. Obtain an addendum opinion from a different examiner than the October 2011 VA examiner, to determine the nature and etiology of the Veteran’s squamous cell carcinoma (claimed as throat cancer). A new examination is not required unless the examiner deems it necessary. The examiner should provide the following opinion: (a) Whether the Veteran’s squamous cell carcinoma (claimed as throat cancer) is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease, to include herbicide exposure. (b) The examiner is also asked to opine whether the Veteran’s diagnosis of squamous cell carcinoma is considered a respiratory cancer (cancer of the lung, bronchus, larynx, or trachea). See 38 C.F.R. § 3.309(e). The examiner is reminded that the Veteran is presumed to have been exposed to herbicide agents to include Agent Orange as his records indicate he served in Vietnam during the presumptive time period. 3. Obtain an addendum opinion from a different examiner than the October 2011 VA examiner, to determine the nature and etiology of his lung scars. A new examination is not required unless the examiner deems it necessary. (Continued on the next page)   The examiner is asked to provide an opinion on whether the Veteran’s lung scars are at least as likely as not proximately due to the Veteran’s squamous cell carcinoma (claimed as throat cancer) or aggravated beyond its natural progression by the Veteran’s squamous cell carcinoma (claimed as throat cancer). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, Associate 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.