Citation Nr: 20009692 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 19-23 104 DATE: February 5, 2020 ORDER New and material evidence not having been received, the petition to reopen the service connection claim for a heart condition, to include ischemic heart disease, is denied. Entitlement to service connection for hypertension is granted. Entitlement to service connection for a stroke is granted. Entitlement to service connection for a physiatric disability is granted. REMANDED Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for a thyroid condition is remanded. FINDINGS OF FACT 1. The Veteran’s service connection claim for service connection for ischemic heart disease was denied in a June 2011 rating decision. The Veteran was notified of the appeal and did not submit new and material evidence within a year of the issuance of the decision. 2. The evidence received since the June 2011 rating decision is cumulative of evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a heart condition, to include ischemic heart disease. 3. The preponderance of the evidence shows that the Veteran’s hypertension is at least as likely as not related to his herbicide agent exposure. 4. The Veteran’s stroke was proximately due to his service-connected hypertension. 5. The preponderance of the evidence shows that the Veteran’s psychiatric disability was due to his active duty service. CONCLUSIONS OF LAW 1. The June 2011 rating decision that denied the Veteran’s claim for service connection for hypertension is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.202, 20.302, 20.1103 (2019). 2. The evidence received since the June 2011 rating decision was not new and material and the claim for service connection for hypertension is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 4. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence As a preliminary matter, additional service records were received in October 2016, after the June 2011 rating decision. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. 38 C.F.R. § 3.156(c) (2018). If the newly received service department records do not remedy defects in the claim and contain facts that were never in question (i.e., are superfluous to the information already existing in the file at the time of the prior denial), they are not “relevant” and reconsideration is not required. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017). The service personnel records do not address a heart condition or symptoms. They establish his service in the Republic of Vietnam. This was not in question in June 2011, his herbicide exposure had already been conceded based upon Vietnam service. New and material evidence is therefore required to reopen the claim. To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The Veteran’s service connection claim for a heart condition was denied in a November 1991 rating decision and then again in a June 2011 rating decision. The RO considered the Veteran’s service treatment records (STRs) and noted his records showed an abnormal EKG reading in service. Nevertheless, there was no evidence of current disability in the Veteran’s medical records. Accordingly, the RO determined as there was no evidence of a current disability, including ischemic heart disease, service connection was denied. The Veteran was notified of that decision and his appeal rights, and he did not submit any new and material evidence within one year of the issuance of the rating decision. Thus, the June 2011 rating decision is final. 38 U.S.C.§ 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2019). In September 2016, the Veteran filed an application to reopen the claim. Since the June 2011 rating decision, additional medical records have been received. These new medical records include his VA treatment records and private records. However, they do not show a that the Veteran has a heart condition, including ischemic heart disease. The new medical evidence shows that the Veteran has peripheral vascular disease in his leg and abdomen, as well as atherosclerotic disease in his right external iliac artery, but no heart condition was present. The Veteran did not submit lay evidence in support of his claim for service connection for a heart condition, including ischemic heart disease. New and material evidence has not been submitted and the petition to reopen the previously denied claim is denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2019); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2019). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Hypertension A veteran who, during active 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. 38 C.F.R. § 3.307(a). 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. The Veteran served in Vietnam and is therefore presumed to have been exposed to herbicide agents. Hypertension is also not listed among the diseases and conditions presumptively associated with exposure to herbicide agents as set forth in 38 C.F.R. § 3.309(e). However, the National Academy of Sciences (NAS) has placed hypertension in the category of “limited or suggestive evidence of an association” with exposure to herbicides. See e.g., Health Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540 (June 8, 2010); Health Outcomes Not Associated with Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81,332, (December 27, 2010); Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, (Aug. 10, 2012). In a November 2019 private opinion, the examiner concluded there was a link between the Veteran’s in service herbicide agent exposure and his hypertension. The examiner based his opinion on the experiments and scientific research done by the NAS. Additionally, the examiner noted that the Veteran’s blood pressure levels were elevated after discharge. Therefore, the examiner concluded based of the medical evidence the Veteran’s hypertension was at least as likely as not due to his in service herbicide agent exposure. Accordingly, the Board concludes that the positive private opinion provides probative evidence in the Veteran’s favor. Thus, as there is no probative evidence against the Veteran’s claim, service connection for hypertension is warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Stroke Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2019). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2019); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The November 2019 private opinion also found that it was at least as likely as not that the Veteran’s hypertension led to his strokes. The examiner noted that hypertension is the most important risk factor in the development of strokes. Thus, when considering the Veteran’s medical history, the examiner opined that his hypertension caused the development of his cerebrovascular disease. Consequently, the Board also affords the positive opinion high probative value and as the probative evidence of record is for the Veteran’s claim the Board finds service connection for a stroke is warranted. 3. Psychiatric Disability In a May 2019 lay statement, the Veteran described his in service stressors that caused his psychiatric symptoms. The Veteran stated that it was difficult for him to discuss his Vietnam service, but he described his experience as “horrifying and caus[ing] a great deal of fear.” He also reported working as part of a crash recovery team. In this role, the Veteran watched an aircraft begin taking off down the run way and then caught on fire. After that experience the Veteran was nervous about being trapped in the fire trying to get to the air craft and had nightmares about the incident. He felt depressed and had flashbacks about the fire. The Veteran also reported a change in his demeanor when he returned from service. He became isolated, depressed, and had panic attacks. The Veteran also had fleeting suicidal thoughts. He continued to experience nightmares and flashbacks about the aircraft catching on fire. In June 2019, the Veteran received a VA examination. The examiner determined the Veteran did not meet the criteria for PTSD but diagnosed the Veteran with unspecified trauma and stressor-related disorder. The examiner opined that it was at least as likely as night that his psychiatric disorder was due to his in service stressors. Consequently, as there is credible, competent, probative evidence for the Veteran’s claim, service connection for a psychiatric disability is warranted. REASONS FOR REMAND The Veteran was not afforded a VA examination for his service connection claims for peripheral neuropathy, a skin condition, and a thyroid condition. The RO stated the medical evidence of record failed to show evidence of any current disabilities. However, the Board finds the Veteran’s VA treatment records and private records show evidence of peripheral neuropathy and a skin condition. Because the Veteran’s attorney raised the theory that the Veteran’s peripheral neuropathy is due to his strokes, which are now service-connected, the VA examiner should opine as to that theory as well. Accordingly, VA examinations are necessary to determine if these conditions are related to his active service. Likewise, the Veteran has not been afforded the opportunity to have a VA examination for his thyroid service connection claim, and the Board finds an examination is necessary to determine if his thyroid issue is due to service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his bilateral upper and lower extremity peripheral neuropathy. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to the following: a. whether it is at least as likely as not that the Veteran’s bilateral lower extremity peripheral neuropathy began during active service, is related to an incident of service, including his presumed herbicide agent exposure, or began within one year after discharge from active service. b. Whether it is at least as likely as not that the Veteran’s peripheral neuropathy was proximately due to or the result of his service-connected strokes. c. Whether it is at least as likely as not that his peripheral neuropathy was aggravated beyond its natural progression by his service-connected strokes. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for his skin condition. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran’s skin condition began during active service or is related to an incident of service, including his presumed herbicide agent exposure. It is insufficient for the examiner to provide a negative opinion merely because a skin condition is not a condition on the presumption list for exposure to herbicide agents. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician for his thyroid condition. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran’s thyroid condition began during active service or is related to an incident of service, including his presumed herbicide agent exposure. It is insufficient for the examiner to provide a negative opinion merely because a thyroid condition is not a condition on the presumption list for exposure to herbicide agents. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.