Citation Nr: 21000831 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-23 006 DATE: January 6, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a heart disability, to include as a result of in service herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1973 to May 1976. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision which denied the Veteran’s claim for service connection for PTSD and a heart disability. Then, in April 2015, the Regional Office (RO) issued another rating decision, which confirmed and continued the denial of service connection for PTSD and a heart disability. This matter then came before the Board in July 2019, when it was treated as an application to reopen the claims for PTSD and a heart disability; both claims were denied. The Veteran then appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (Joint Motion), which vacated the July 2019 Board decision to the extent that it denied reopening the Veteran’s claims for service connection to PTSD and a heart disability, and remanded both issues for readjudication. In the Joint Motion, the Court noted that the Board may have previously overlooked a key aspect of the procedural history of this case. Review of the record reveals that, in June 2014, the Veteran reached out to his United States Senator for assistance with his case, stating that he would like his VA claim for PTSD and a heart condition to be reconsidered. This request was then forwarded to VA in July 2014, on behalf of the Veteran. At the time the request was submitted, in July 2014, any written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) and a desire to contest the result constituted a Notice of Disagreement (NOD). 38 C.F.R. § 20.201 (2014). Special wording was not required, as long as the communication was written in terms that could reasonably be construed as disagreement with the determination and a desire for appellate review. Id. In the June 2014 request, the Veteran stated that he “would like a reconsideration of . . . [his] claim” in regard to his previous PTSD and heart condition claims, which plainly reads as dissatisfaction or disagreement with the previous determination by the RO. Thus, the Board now finds that this correspondence was in fact a NOD, initiated by the Veteran. Therefore, the September 2013 rating decision never became final. Accordingly, the Board finds that the issues on appeal are direct appeals of the September 2013 rating decision denying the Veteran’s claims for service connection—and are not requests to reopen the claims. Therefore, the question before the Board is whether the Veteran is entitled to service connection for PTSD and for a heart disability. Service Connection For PTSD The Veteran seeks service connection for PTSD. To support his claim, the Veteran provided written statements in November 2012, describing several events he believed to be in-service stressors, including two incidents of personal assault while working as a military police officer. Specifically, he reported that, in 1973, while responding to a domestic violence call, the man involved in the domestic dispute attacked the Veteran and another officer with a knife, which led them to shoot the man to stop the attack. He also reported that, in 1974, while responding to a silent alarm at a Commissary Annex, he and another officer discovered two men and a woman fleeing the scene. The men began shooting at the Veteran and the other officer and they returned fire, killing both men. The woman then picked up a gun and turned to shoot at the Veteran, forcing him to shoot her first. She died as a result of the gunshot wound. The RO attempted to verify these incidents, but no records were found of these incidents during the dates specified. Also, the Veteran did not provide any lay corroborating evidence for the personal assaults. Then, in September 2013, VA issued a memorandum declaring a formal finding of a lack of information required to corroborate stressors associated with the Veteran’s claim for service connection for PTSD. The RO thus denied his claim for service connection for PTSD, stating there was no credible evidence that the claimed in-service stressors occurred. However, upon a complete review of the record, the Board finds that the RO did not provide the Veteran with the required notice for PTSD claims based on personal assault. 38 C.F.R. § 3.304(f)(5). Therefore, a remand for additional development is necessary. Under 38 C.F.R. § 3.304(f)(5), evidence from sources other than service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA must advise the Veteran that evidence of the type listed above may constitute credible supporting evidence of the stressor and allow him the opportunity to furnish or advise VA of potential sources of such evidence. VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Specifically, on remand, the RO should send a corrective notice in accordance with § 3.304(f)(5) and take appropriate steps to attempt to verify the claimed in-service personal assault before the Board can decide this claim. Service Connection For A Heart Disability The Veteran also seeks service connection for a heart disability, to include as secondary to in-service herbicide agent exposure. Specifically, he asserts that he has a heart condition that resulted from exposure to herbicide agents during his military service. The Board notes that the Veteran’s enlistment examination, service treatment records, and separation physical examination are silent for complaints of, treatment for, or diagnosis of a heart condition. However, the Veteran’s post-service VA treatment records show a current diagnosis of cardiomyopathy. Herbicide agent exposure is presumed when a veteran: (1) had active service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975; (2) had active service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides agents are known to have been applied during that period; or (3) performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. 38 C.F.R. § 3.307(a)(6). In the current appeal, the Veteran’s available service personnel records reflect that he served in the Army and had no foreign service during his active duty. Therefore, he does not meet the criteria for presumed herbicide agent exposure. However, VA has instituted procedures for verifying exposure to herbicide agents in locations other than the Republic of Vietnam or along the DMZ in Korea. Such procedures include: (1) asking the Veteran for the approximate dates, location, and nature of the alleged exposure; (2) furnishing the Veteran’s detailed description of exposure to Compensation Service for confirmation; and (3) requesting a review of the DOD inventory of herbicide agent operations to determine whether herbicide agents were used as alleged. A review of the record reveals that the above development was not conducted. A remand is, therefore, necessary to conduct additional development consistent with these established procedures to verify the Veteran’s alleged in-service herbicide agent exposure, to the extent possible. Accordingly, these matters are REMANDED for the following action: 1. Send the Veteran the required notice for PTSD claims based on personal assault [see 38 C.F.R. § 3.304(f)(5)] and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressors based on personal assault. If more details are needed, contact the Veteran to request such information. 2. Complete established procedures to verify in service herbicide agent exposure claimed by the Veteran. Such procedures include: (1) asking the Veteran for the approximate dates, location, and nature of the alleged exposure; (2) furnishing the Veteran’s detailed description of exposure to Compensation Service for confirmation; and (3) requesting a review of the DOD inventory of herbicide agent operations to determine whether herbicide agents were used as alleged. All documentation sent and received regarding this request must be associated with the claims file. 3. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his PTSD. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s PTSD is related to an in-service injury, event, or disease, including any confirmed in-service stressor? Why or why not? In answering these questions, the examiner should address the specific stressor(s) that may have led to the Veteran’s PTSD. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his heart condition. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s diagnosed heart condition is related to an in-service injury, event, or disease, including any conceded in service herbicide agent exposure? Why or why not? The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.