Citation Nr: 21000882 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-56 633 DATE: January 6, 2021 ORDER New and material evidence has been submitted to reopen a claim for service connection for a lung disability. New and material evidence has been submitted to reopen a claim for service connection for diabetes mellitus, type II. Entitlement to service connection for diabetes mellitus, type II is granted. REMANDED Entitlement to service connection for a lung disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder and posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an alcohol use disorder is remanded. Entitlement to service connection for a kidney disability is remanded. Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT 1. A final June 2006 rating decision denied service connection for a lung disability on the basis that the evidence of record failed to show that a lung condition was incurred in service or was aggravated by service. 2. Evidence received since the June 2006 rating decision includes the Veteran’s competent lay statements that his doctors stated his lung disability was due to his conceded herbicide exposure; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 3. A final December 2013 rating decision denied service connection for diabetes mellitus, type II, on the basis that the evidence of record failed to show a diagnosis of diabetes mellitus. 4. Evidence received since the December 2013 rating decision includes treatment records that show a diagnosis of diabetes mellitus; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 5. The Veteran’s diabetes mellitus, type II is related to his conceded herbicide exposure. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a lung disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.1103. 2. New and material evidence has been received, and the claim of service connection for diabetes mellitus, type II may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.1103. 3. The criteria for service connection for diabetes mellitus, type II are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309 (e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to October 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2015 and July 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran had a virtual Board hearing before the undersigned. New and Material Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.200 20.1100, 20.1103, 20.1104. However, a final decision shall be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means existing 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). The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a lung disability The Veteran’s claim of entitlement to service connection for a lung condition was first denied in June 2006 on the basis that the evidence of record failed to show that a lung condition was incurred in service or was aggravated by service. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. Since the June 2006 decision, the Veteran has provided competent lay statements that his doctors stated his lung disability was due to his conceded herbicide exposure. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for a lung disability is reopened. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for diabetes mellitus, type II The Veteran’s claim of entitlement to service connection for diabetes mellitus, type II was first denied in December 2013 on the basis that the evidence of record failed to show a diagnosis of diabetes mellitus. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. Since the December 2013 decision, treatment records have been associated with his claims file that show a diagnosis of diabetes mellitus. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for diabetes mellitus, type II is reopened. 3. Entitlement to service connection for diabetes mellitus, type II The Veteran contends that his diabetes mellitus, type II, is related to service, specifically to his herbicide exposure. The Board concludes that the Veteran has a current disability that is related to conceded herbicide exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The list of diseases presumed related to exposure to herbicide agents includes diabetes mellitus, type II. 38 C.F.R. § 3.309 (e). VA treatment records show the Veteran has a current diagnosis of diabetes mellitus, type II. Although cognizant that prior VA examination found no current, confirmed diagnosis, the Board finds that the VA treatment of records show such a confirmed diagnosis. Accordingly, the Board finds that service connection for diabetes mellitus, type II is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a lung disability is remanded. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether a lung disability is related to the Veteran’s conceded herbicide exposure. The Veteran has testified that his treatment providers told him it is related to herbicide exposure. The October 2015 VA examiner stated that the Veteran does not have a lung disability that is presumptively related to herbicide exposure; however, an opinion is still needed as to the etiology of the lung disability, to include whether it is directly related to conceded herbicide exposure. 2. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder and posttraumatic stress disorder (PTSD) is remanded. Initially, the Board has re-characterized the issue on appeal as entitlement to an acquired psychiatric disorder, to include a depressive disorder and PTSD, to make clear that the issue before the Board is entitlement to a psychiatric disability, regardless of the particular diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether a depressive disorder is related to service. In this regard, the Board notes that the June 2016 VA examiner declined to make diagnoses other than an alcohol use disorder. While the Veteran’s VA treatment records show PTSD on the Veteran’s list of followed issues and contain recommendations that the Veteran attend a PTSD group, the records do not contain a clear diagnosis of PTSD. However, they do indicate that the Veteran has had a diagnosis of a depressive disorder not otherwise specified (NOS) during the appellate period. Therefore, an opinion is needed as to the etiology of the depressive disorder. 3. Entitlement to service connection for an alcohol use disorder is remanded. The Veteran contends his alcohol use disorder is secondary to his acquired psychiatric disorder. Because a decision on the issue of service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of service connection for an alcohol use disorder, the issues are inextricably intertwined. A remand of the claim for service connection for an alcohol use disorder is required. 4. Entitlement to service connection for a kidney disability is remanded. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran has a kidney disability that is secondary to his diabetes mellitus, type II, for which service connection has been granted in the instant decision. 5. Entitlement to service connection for a heart disability is remanded. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran has a heart disability that is secondary to his diabetes mellitus, type II, for which service connection has been granted in the instant decision. As well, while the October 2015 VA examiner stated that the Veteran does not have a heart disability that is presumptively related to herbicide exposure, an opinion is still needed as to the etiology of the heart disability, to include whether it is directly related to conceded herbicide exposure. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2017 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has a lung disability that is at least as likely as not related to service, to include his conceded herbicide exposure. Merely stating that his lung disability is not an herbicide-presumptive diagnosis is not sufficient. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s depressive disorder, noted in his VA treatment records during the appellate period, is at least as likely as not related to service, to include his fear of hostile military or terrorist activity. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s kidney disability is at least as likely as not (1) related to service, to include conceded herbicide exposure, (2) proximately due to service-connected diabetes mellitus, type II, or (3) aggravated beyond its natural progression by service-connected diabetes mellitus, type II. Merely stating that his kidney disability is not an herbicide-presumptive diagnosis is not sufficient. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s heart disability is at least as likely as not (1) related to service, to include conceded herbicide exposure, (2) proximately due to service-connected diabetes mellitus, type II, or (3) aggravated beyond its natural progression by service-connected diabetes mellitus, type II. Merely stating that his heart disability is not an herbicide-presumptive diagnosis is not sufficient. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dean, 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.