Citation Nr: 20006987 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-25 988 DATE: January 28, 2020 ORDER The application to reopen the claim of service connection for posttraumatic stress disorder (PTSD) is granted. The application to reopen the claim of service connection for chronic kidney disease, to include as a result of herbicide exposure, is granted. Entitlement to service connection for PTSD is granted. Entitlement to service connection for chronic kidney disease is granted. FINDINGS OF FACT 1. In a January 2015 rating decision, the RO denied the claim for PTSD due to the absence of a clinical diagnosis of PTSD. The Veteran did not timely appeal the decision within the one-year period. 2. Evidence received since the January 2015 rating decision relates to a previously unestablished fact necessary to substantiate the claim for PTSD. 3. In a January 2017 rating decision, the RO denied the claim for chronic kidney disease based on a lack of an in-service event, injury or disease or a nexus between the current disability and active service. The Veteran did not timely appeal the decision within the one-year period. 4. Evidence received since the January 2017 rating decision relates to a previously unestablished fact necessary to substantiate the claim for chronic kidney disease. 5. Resolving all doubt in the Veteran’s favor, the currently diagnosed PTSD was incurred during active military service. 6. Resolving all doubt in the Veteran’s favor, the currently diagnosed chronic kidney disease was incurred during active military service. CONCLUSIONS OF LAW 1. The January 2015 rating decision that denied the claim for service connection for PTSD is final. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.156 (b), 20.1103 (2018). 2. Evidence received since the January 2015 rating decision is new and material and the claim for PTSD is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (a) (2018). 3. The January 2017 rating decision that denied the claim for service connection for chronic kidney disease is final. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.156 (b), 20.1103 (2018). 4. Evidence received since the January 2017 rating decision is new and material and the claim for chronic kidney disease is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (a) (2018). 5. The criteria to establish service connection for PTSD are approximated. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2018). 6. The criteria for service connection for chronic kidney disease have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.303, 3.304(f)(3) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1965 to May 1967. This matter is on appeal from rating decisions dated January 2017 and August 2018. New and Material Evidence The application to reopen the claim of service connection for PTSD is granted. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An 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, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers that bears directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. The application to reopen the claim of service connection for PTSD is granted. Here, the final denial of the claim for service connection for PTSD was a January 2015 rating decision. See January 2015 rating decision. The RO denied the claim due to the absence of a clinical diagnosis of PTSD. In November 2017, the Veteran sought to reopen his claim for PTSD. The evidence received since the final January 2015 decision include an October 2019 private medical record from Dr. A. B., who diagnosed the Veteran with PTSD. The Board finds the evidence new as it was not previously submitted to agency decision makers and is not redundant. The evidence is material as it addresses the previously unestablished fact of a current disability. Accordingly, the claim is reopened. 2. The application to reopen the claim of service connection for chronic kidney disease, to include as a result of herbicide exposure, is granted. Here, in a January 2014 final rating decision, the RO denied the claim for service connection for chronic kidney disease based on a lack of an in-service event, injury or disease or a nexus between the current disability and active service. The Veteran sought to reopen his claim, and the evidence received since the final decision include a December 2016 VA Medical Opinion Disability Benefits Questionnaire (DBQ), in which the VA examiner opined that the Veteran’s current stage V kidney disease requiring dialysis is less likely than not incurred in or caused by the dysuria that occurred during service. See December 2016 VA Medical Opinion DBQ. The Board finds the evidence new as it was not previously submitted to agency decision makers and is not redundant. The evidence is material as it addresses the previously unestablished fact of an in-service occurrence and nexus. Accordingly, the claim is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Moreover, service connection for PTSD, specifically, requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. VA is required to evaluate the supporting evidence considering the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran’s military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.§ 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for PTSD is granted. For the following reasons, the Board finds that service connection for PTSD is warranted. First, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD. On one hand, the record contains VA Examinations dated December 2014, March 2018, and August 2018, in which the VA examiners opined that the Veteran did not have a current diagnosis of PTSD at the time of examination. See VA Examination Reports dated December 2014, March 2018, and August 2018. On the other hand, the record also contains equally compelling medical reports from private treatment providers who opined and confirmed that the Veteran does have a current diagnosis of PTSD. See April 2018 private medical record from Dr. S. M.; October 2019 private medical record from Dr. J. M. The Board finds no reason to afford greater probative value to the evidence against a finding of a PTSD diagnosis than to the evidence in favor of finding a PTSD diagnosis. Thus, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD; therefore, the current disability element of service connection is met. Next, VA has conceded the Veteran’s claimed in-service stressors, including experiencing a base attack in Vietnam while stationed at Long Binh. See United States Army and Joint Services Records Research Center; see also August 2019 Statement of the Case. Finally, the third element is met, as the Board finds persuasive a positive nexus opinion, in which private medical treatment provider, Dr. J. M, opined that the Veteran’s PTSD diagnosis is related to his military experience. See October 2019 private medical record from Dr. J. M. Moreover, there are no negative nexus opinions as to the Veteran’s PTSD that is of record. Based on the above, the Board finds the evidence of record in equipoise as to whether the Veteran has a current diagnosis of PTSD that is related to his in-service stressor. Accordingly, the Board resolves all doubt in the Veteran’s favor, and service connection is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 4. Entitlement to service connection for chronic kidney disease is granted. For the reasons that follow, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s chronic kidney disease is related to his active duty military service. Therefore, service connection for chronic kidney disease is warranted. Here, the Board finds that the Veteran has a current diagnosis of chronic kidney disease. See December 2016 VA Kidney Conditions DBQ (show Veteran’s diagnoses of stage V chronic kidney disease, nephrotic syndrome, focal segmental sclerosing glomerulonephritis). Therefore, the current disability requirement is met. The second element is also met. A veteran, who, during active duty service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran served on active duty in Vietnam between July 1965 and May 1967. Therefore, exposure to herbicides is conceded. Thus, the issue is whether there is a link between the Veteran’s current disability and the Veteran’s active duty service. In this regard, the record contains a private medical opinion dated December 2013 by Dr. S. J. M., who opines that the Veteran’s kidney disease is likely caused by his herbicide exposure in service. See December 2013 private medical opinion by Dr. S. J. M. Additionally, there is no negative nexus opinion as to whether the Veteran’s current disability is related to his herbicide exposure in service. Accordingly, the evidence is in equipoise and the Board resolves all doubt in the Veteran’s favor and finds that service connection is warranted. See Gilbert, 1 Vet. App. at 54. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Cho, 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.