Citation Nr: 20006340 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 16-29 435 DATE: January 28, 2020 ORDER Service connection for coronary artery disease (CAD) for accrued benefits purposes is granted. Service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and factitious disorder with predominantly psychological signs and symptoms for accrued benefits purposes is denied. Service connection for chronic obstructive pulmonary disease (COPD) for accrued benefits purposes is denied. Service connection for acute myeloid leukemia (AML) for accrued benefits purposes is denied. REMANDED The issue of service connection for the cause of the Veteran’s death is remanded. The issue of whether R. is entitled to recognition as a helpless child of the Veteran who was permanently incapable of self-support prior to attaining the age of 18 is remanded. FINDINGS OF FACT 1. The Veteran died in 2012 and had claims pending for service connection for CAD, PTSD, COPD, and AML at the time of his death. 2. The Veteran’s CAD is presumed to have been caused by in-service exposure to herbicide agents. 3. The Veteran did not have a diagnosis of PTSD and a diagnosed factitious disorder with predominantly psychological signs and symptoms was not caused by service. 4. COPD was not caused by service. 5. AML was not caused by service. CONCLUSIONS OF LAW 1. The criteria for service connection for CAD for accrued benefits purposes have been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. 2. The criteria for service connection for an acquired psychiatric disorder to include PTSD and factitious disorder with predominantly psychological signs and symptoms for accrued benefits purposes have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. 3. The criteria for service connection for COPD for accrued benefits purposes have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. 4. The criteria for service connection for AML for accrued benefits purposes have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from June 1961 to June 1965. The Veteran died in 2012 and the appellant is his surviving spouse. In May 2019, the appellant was afforded a hearing before the undersigned Veterans Law Judge sitting at the New York, New York, Regional Office (RO). Service Connection for Accrued Benefits Purposes Accrued benefits are benefits to which a Veteran was entitled at his death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran’s death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). When adjudicating accrued benefits claims, only the evidence of record at the time of the Veteran’s death, along with later hearing testimony, may be considered as the basis for a determination on the merits of the claim. At the time of his death, the Veteran had claims pending for service connection for CAD, PTSD, COPD, and AML. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for CAD for accrued benefits purposes. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. “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). Service in the Republic of Vietnam also includes service within the 12 nautical mile territorial sea of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc); see also Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966. If a veteran was exposed to an herbicide agent during active service, certain diseases, to include CAD shall be service connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). The Veteran’s private treatment records indicate that he had CAD. The Veteran’s service personnel records (SPRs) indicate that he served on the U.S.S. Eldorado from November 1962 to June 1965. An October 1964 SPR states that the Veteran was awarded the Armed Forces Expeditionary Medal for service in the “Vietnam area of operations” in August and September 1964. A September 2012 VA Form 3101 states that the U.S.S. Eldorado was in the “official waters of the Republic of Vietnam” in August and September 1964. As Veteran was in the territorial waters of the Republic of Vietnam, he is presumed to have been exposed to herbicide agents and service connection for CAD for accrued benefits purposes is granted. 2. Entitlement to service connection for an acquired psychiatric disorder to include PTSD for accrued benefits purposes. Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in service stressor. If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f). A February 2011 letter from a Vet Center licensed clinical social worker (LCSW) states that the Veteran had been treated for PTSD as a result of experiences he had as a Navy SEAL and while on secret missions in the Republic of Vietnam. In a March 2011 Statement in Support of Claim for PTSD, the Veteran reiterated that he was a Navy SEAL and conducted “classified top secret” missions with orders from the Central Intelligence Agency (CIA). However, the record does not show that the Veteran was a Navy SEAL. In May 2011, the Veteran was afforded a VA PTSD examination with a VA psychologist. He reported that he was never in combat and not a Navy SEAL. He reported that he was in the waters off Vietnam but was not exposed to combat and did not fear hostile military or terrorist activity during that time. The Veteran stated that he was “unsure why he told VA clinicians that he was having nightmares and flashbacks about being a Navy SEAL in Vietnam” and that “he might need to speak to a therapist about his false memories.” Based on this, the VA examiner diagnosed him with factitious disorder with predominantly psychological signs and symptoms. The examiner opined that this disorder was not due to service because the Veteran did not fear hostile military or terrorist activity during service. In an August Statements in Support of Claim, the Veteran reiterated that he went ashore in Vietnam for several missions as a Navy SEAL on missions for the CIA. The Board finds that the Veteran’s statements of service in combat in Vietnam, that he served as a Navy SEAL, and that he went on secret missions at the direction of the CIA are not credible. At his May 2011 VA examination, the Veteran expressly stated that these statements were not true. Additionally, the Veteran’s SPRs do not indicate any such service. As the Veteran’s reported military history is not credible, the diagnosis of PTSD by an LCSW is not factually based and is not probative. This diagnosis was based on false reports by the Veteran of in-service combat. The May 2011 VA psychologist who examined the Veteran stated that the PTSD diagnosis was “based on his fictitious account of having been in ground combat,” indicating that he would not have been given the PTSD diagnosis without those false reports. The record at the time of the Veteran’s death did not contain any other in-service events that could were stated to be the source of a PTSD diagnosis. As such, the Board finds that the Veteran did not have a PTSD diagnosis. The only psychiatric disorder with which the Veteran was diagnosed was factitious disorder with predominantly psychological signs and symptom by the May 2011 VA examiner. The examiner opined that the disorder was not caused by service. The record contains diagnoses of no other acquired psychiatric disorders and no one has opined that factitious disorder with predominantly psychological signs and symptoms was caused by service. Service connection for an acquired psychiatric disorder, to include PTSD and factitious disorder with predominantly psychological signs and symptoms for accrued benefits purposes is therefore denied. 3. Entitlement to service connection for COPD for accrued benefits purposes. 4. Entitlement to service connection for AML for accrued benefits purposes. The Veteran’s private treatment records indicate that he had COPD and AML. The Veteran made no assertion as to why he believed COPD was caused by service. On his August 2012 informal claim, he wrote only, “I have severe COPD.” On that same form, he indicated that he believed AML was caused by in-service exposure to herbicide agents. At the May 2019 Board hearing, the appellant seemed to contend that she believed COPD and AML were caused by in-service exposure to herbicide agents or by asbestos and other chemical agents as a result of his duties as a fire inspector in service. However, there is no evidence of record at the time of the Veteran’s death which indicates COPD or AML were caused by service. Additionally, AML is not a B-cell leukemia such that service connection may be granted on a presumptive basis due to in-service exposure to herbicide agents. The appellant is not competent to provide an opinion as to the etiology of the Veteran’s COPD or AML. A layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent about a disease with “unique and readily identifiable features” that is “capable of lay observation.” See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). The Board finds that COPD and AML are not disorders with “unique and readily identifiable features” such that a layperson would be competent to provide such an opinion. Instead, they are both complex medical disorders and specialized medical knowledge is required to determine the cause of them. An April 2012 letter from the Veteran’s private oncologist stated that, over the prior several years, the Veteran had “a baffling illness characterized by failure to thrive, peripheral neuropathy, elevated white blood cell and platelet counts.” The physician then indicated that later a clear diagnosis of AML was able to be made. As such, even his treating oncologist found AML to be medically complex and it required several years to make a clear diagnosis. There is no evidence in the record that the appellant has specialized medical knowledge such that she is competent to provide an opinion as to the etiology of the Veteran’s COPD or AML. As the evidence of record at the time of the Veteran’s death did not indicate that COPD or AML was caused by service and no competent medical provider so opined at the appellant’s Board hearing, the Board finds that COPD and AML were not caused by service and, therefore, service connection for COPD for accrued benefits purposes and service connection for AML for accrued benefits purposes are denied. REASONS FOR REMAND 1. The issue of service connection for the cause of the Veteran’s death is remanded. 2. The issue of whether R. is entitled to recognition as a helpless child of the Veteran who was permanently incapable of self-support prior to attaining the age of 18 is remanded. The matters are REMANDED for the following action: 1. Reasons for the remand: The Veteran’s death certificate states that he died of AML. Service connection has now been granted for CAD for accrued benefits purposes only. Remand is necessary to obtain an opinion as to whether CAD contributed to the Veteran’s death, including whether it caused debilitating effects and general impairment of health to an extent that it rendered the Veteran materially less capable of resisting the effects of AML. Remand of the issue of whether R. is entitled to recognition as a helpless child is necessary to obtain any relevant records indicating that he was permanently incapable of self-support prior to attaining the age of 18. 2. Obtain an opinion as to the cause of the Veteran’s death from an oncologist. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address whether CAD contributed to the Veteran’s death, including whether CAD caused debilitating effects and general impairment of health to an extent that it rendered the Veteran materially less capable of resisting the effects of AML, which primarily caused his death. 3. Request that the appellant submit any relevant documentation, including treatment records, counseling records, school records, employment records, etc. indicating that R. was permanently incapable of self-support prior to attaining the age of 18. 4. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Miller, 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.