Citation Nr: 20021289 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-19 461 DATE: March 25, 2020 ORDER New and material evidence having been submitted, the previously denied claim(s) of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is reopened. New and material evidence having been submitted, the previously denied claim of entitlement to service connection for hypertension is reopened. Entitlement to service connection for coronary artery disease (CAD) as due to herbicide exposure is granted. Entitlement to service connection for diabetes mellitus, type II, (diabetes mellitus) as due to herbicide exposure is granted. REMANDED Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, to include as due to herbicide exposure or as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities, to include as due to herbicide exposure or as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure or as secondary to service-connected diabetes mellitus and/or coronary artery disease, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is remanded. FINDINGS OF FACT 1. An unappealed June 1998 rating decision denied entitlement to service connection for PTSD. 2. An unappealed January 2005 rating decision denied entitlement to service connection for hypertension. 3. An unappealed May 2009 rating decision denied entitlement to service connection for depression. 4. The evidence added to the record since the June 1998, January 2005, and May 2009 rating decisions is new and raises a reasonable possibility of substantiating the claims for service connection for PTSD, hypertension and depression. 5. The Veteran served in the official waters of Vietnam. 6. The Veteran has a current diagnosis of CAD. 7. The Veteran has a current diagnosis of diabetes mellitus. CONCLUSIONS OF LAW 1. The June 1998, January 2005, and May 2009 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence having been received, the criteria for reopening the claim(s) for service connection for an acquired psychiatric disorder, including PTSD and depression, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence having been received, the criteria for reopening the claim for service connection for hypertension have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to CAD as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1112, 1116, 1116A, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 5. The criteria for entitlement to diabetes mellitus, type II, as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1112, 1116, 1116A, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to September 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. A May 2009 rating decision denied entitlement to service connection for diabetes mellitus, coronary atherosclerosis, and peripheral neuropathy of the bilateral lower and upper extremities. The Veteran did not appeal this decision. Accordingly, the May 2009 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. In a January 2015 statement, the Veteran sought to reopen these claims. In this regard, generally, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, in January 2020, the Blue Water Navy Vietnam Veterans Act of 2019 became effective. The Act was in response to the Court of Appeals for Veterans’ Claims decision which concerns “Blue Water” Navy Veterans who served during the Vietnam Era. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en bane). The Court held that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ “are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. This decision has since been codified into the Act. See 38 U.S.C. § 1116A. As the Act creates a new basis of entitlement, new and material evidence is not required to reopen the Veteran’s previously denied claims. See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff’d 17 F.3d 368 (Fed. Cir. 1994). Therefore, the claims for service connection for diabetes mellitus, CAD, and peripheral neuropathy of the bilateral upper and lower extremities may be reviewed on a de novo basis. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the AOJ, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). A June 1998 rating decision denied the Veteran’s claim for service connection for PTSD. The Veteran was notified of this decision and of his appellate rights by letter dated June 18, 1998. He did not appeal. Therefore, the June 1998 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. A January 2005 rating decision denied the Veteran’s claim for service connection for hypertension. The Veteran was notified of this decision and of his appellate rights by letter dated January 31, 2005. He did not appeal. Therefore, the January 2005 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. A May 2009 rating decision denied the Veteran’s claim for service connection for depression. The Veteran was notified of this decision and of his appellate rights by letter dated May 11, 2009. He did not appeal. Therefore, the May 2009 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Concerning depression and PTSD, evidence of record received subsequent to the final rating decisions consists of the Veteran’s statements and testimony as well as his VA treatment records and examination reports. This evidence is both new and material. Concerning hypertension, the Veteran’s claim was denied on a secondary basis in January 2005 because he was not service connected for diabetes mellitus. In light of the Board’s award of service connection for diabetes mellitus below, new and material evidence has also been received since the last final denial of this claim. Thus, the claims are reopened. Service Connection CAD and Diabetes Mellitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the VA-defined chronic diseases listed in 38 C.F.R. § 3.309(a), including CAD and diabetes mellitus, if the chronic disease manifested in service, then subsequent manifestations of the same chronic disease at any date after service - no matter how remote - will be entitled to service connection without having to satisfy the medical nexus requirement, unless clearly due to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). If the evidence is not sufficient to establish chronicity of the disease at the time of service, then a continuity of symptoms after service must be shown to grant service connection under this relaxed evidentiary provision. Id.; Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period”). In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for VA-defined chronic diseases, including diabetes mellitus, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Service connection may be established on a legal presumption based on exposure to herbicide agents, including Agent Orange, where a veteran served on active duty in the Republic of Vietnam (Vietnam) during the Vietnam era (from January 1962 to May 1975), and has a certain listed disability, including CAD and diabetes mellitus, that becomes manifest to a degree of 10 percent or more any time after service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii)(iii), 3.309. Effective January 1, 2020, the Act provides a presumption of herbicide exposure to veterans who served in the offshore waters of Vietnam. See 38 U.S.C. § 1116A. The Board notes that the Veteran has been diagnosed with CAD and diabetes mellitus. See October 2015 Cardiology Consult; November 2016 Nursing Note (noting chronic care management of diabetes mellitus). Accordingly, he has current disabilities. Davidson, 581 F.3d 1313. An April 2009 Personal Information Exchange System (PIES) response indicated that the Veteran served aboard the U.S.S. Jenkins (DD-447), which operated within the official waters of Vietnam from February 26, 1966 to March 24, 1966 and from April 7, 1966 to April 14, 1966. See April 2009 PIES Response. Recently obtained logbooks verify that the Veteran had service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. See VA Memo and Logbooks, received March 9, 2020. The Board finds that the record clearly indicates that the Veteran was stationed aboard the U.S.S. Jenkins when it was in the territorial waters of Vietnam. As the Veteran had qualifying service in the offshore waters of Vietnam, he is presumed to have been exposed to herbicides. See 38 U.S.C. § 1116A(b). As the Board has conceded exposure to herbicides in Vietnam, the Veteran’s diabetes mellitus and CAD are presumed to be the result of his in-service herbicide exposure. See 38 C.F.R. § 3.309(e). Accordingly, the Veteran’s claims of entitlement to service connection for CAD and diabetes mellitus are granted. REASONS FOR REMAND 1. Peripheral Neuropathy, bilateral lower and upper extremities The Veteran claims entitlement to service connection for peripheral neuropathy of the bilateral lower extremities and bilateral upper extremities. The Veteran’s exposure to herbicides is now presumed. 38 U.S.C. § 1116A. As noted above, service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). While peripheral neuropathy other than “early-onset” peripheral neuropathy is not among the diseases listed as presumptively due to herbicide exposure under 38 C.F.R. § 3.309(e), this does not obviate the need to determine whether a direct relationship exists. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Further, a medical opinion should be obtained as to whether the Veteran’s peripheral neuropathy is secondary to his now service-connected diabetes mellitus. See 38 C.F.R. § 3.310. 2. Hypertension The Veteran asserts that his hypertension is related to his CAD and/or diabetes mellitus. See January 2015 Statement in Support of Claim. As stated above, the Veteran is now service-connected for both CAD and diabetes mellitus and his exposure to herbicides has been conceded. Hypertension is not one of diseases listed under 38 C.F.R. § 3.309(e) for which a presumption of service connection based on herbicide exposure applies. In its Veterans and Agent Orange Update 11 (2018), the National Academies of Sciences, Engineering, and Medicine (NASEM) recently published a report finding "sufficient evidence of an association" between hypertension and herbicides such as Agent Orange. See Vietnam Veterans and Agent Orange Exposure New Report, November 2018, available at http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. Prior reports had found at least "limited or suggestive evidence" of such an association. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81,332-01 (Dec. 27, 2010)). Absent a medical opinion as to the likelihood that the Veteran’s hypertension was caused by his presumed herbicide exposure or caused or aggravated by his service-connected CAD and/or diabetes mellitus, the record is insufficient for the Board to decide the Veteran’s claim. 3. Acquired Psychiatric Disorder, including PTSD and depression An August 2017 VA examination report shows that the Veteran has neurobehavioral effects associated with his service-connected TBI. See August 2017 Review Evaluation of Residuals of TBI DBQ. The Board finds that a remand is required to obtain a medical opinion as to whether the Veteran has a psychiatric disorder associated with his TBI or as secondary to his service-connected disabilities. McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Finally, as this matter is being remanded the Veteran’s updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s updated VA treatment records, from February 2018, forward. 2. Thereafter, schedule the Veteran for appropriate VA examinations to address the nature and etiology of his bilateral peripheral neuropathy, lower extremities and upper extremities; hypertension; and psychiatric disorder. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner(s) in conjunction with the examination(s). The examiner(s) should confirm in the examination report(s) that he or she has reviewed the folder in conjunction with the examination. The examiner(s) should elicit a full history from the Veteran. Any medically indicated tests should be conducted. The examiner(s) must respond to the following: Peripheral Neuropathy a. Identify (by diagnosis) each neurological disorder of the lower and upper extremities currently found to be present, to include any peripheral neuropathy. b. Provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran had “early-onset” peripheral neuropathy, which manifested within one year after the date of his last exposure to herbicides (i.e., between April 1966 and April 1967). c. Provide an opinion as to whether it is at least as likely as not that the Veteran manifests any current residuals of early-onset peripheral neuropathy. d. If the Veteran did/does not have “early-onset” peripheral neuropathy, provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that any current neurological disorder of the lower extremities and upper extremities is related to his in-service herbicide exposure. e. Provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that any current neurological disorder of the lower extremities and upper extremities was either (i) caused by, or (ii) aggravated (i.e., worsened) by the Veteran’s service-connected diabetes mellitus. The examiner must provide a complete rationale for any opinion offered. Hypertension a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by his in-service exposure to herbicides. • In providing this opinion, the examiner should consider the November 2018 National Academy of Sciences Report, Veterans and Agent Orange Update 11, which found a positive association between hypertension and Agent Orange exposure. http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137 b. If the Veteran’s hypertension was not found to be related to his in-service herbicide exposure, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that it was (1) caused by, or (2) aggravated by, his service-connected coronary artery disease or his service-connected diabetes mellitus. The examiner must provide a complete rationale for all opinions provided. Acquired Psychiatric Disorder, including Depression and PTSD a. Identify all current psychiatric disorders. b. For each current disability identified, opine whether it is at least as likely as not (50 percent or more probability) that the diagnosed psychiatric disability is related to service, to include suffering a head injury in a fight, having to make trips to shore to transport troops and bring back the wounded and dead, and/or fear of hostile military activity. c. Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has any psychiatric disability as a residual of his TBI. d. Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a psychiatric disorder, including depression, that was caused or aggravated by functional limitations and/or pain associated with his service-connected disabilities (i.e., TBI, headaches, diabetes mellitus, coronary artery disease, hearing loss, tinnitus, and scalp laceration). The examiner must provide a complete rationale for any opinion offered. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.