Citation Nr: 21067782 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-10 220 DATE: November 5, 2021 ORDER New and material evidence has been submitted to reopen a claim for service connection for a heart disability; the appeal is granted to this extent only. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a hematoma on brain is remanded. FINDINGS OF FACT 1. A final November 2013 rating decision denied service connection for a heart disability on the basis that the Veteran's reported herbicide exposure in Guam was not verified. 2. Evidence received since the November 2013 rating decision includes alternative theories of entitlement; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a heart disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 1970 to August 1972. This matter come before the Board of Veterans' Appeals on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a June 2021 Board videoconference hearing; a transcript is of record. Whether new and material evidence has been submitted to reopen a claim for service connection for a heart disability 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). The Veteran's claim of entitlement to service connection for a heart disability was first denied in November 2013 on the basis that the Veteran's reported herbicide exposure in Guam was not verified. 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. In January 2016, the Veteran's claim was again denied on the basis that new and material evidence had not been submitted to reopen the claim for service connection for a heart disability. However, the Veteran submitted statements and provided testimony that his heart disability is secondary to his claimed acquired psychiatric disorder, or due to his reported asbestos or radiation exposure. See, e.g., April 2014 Veteran's statement, October 2014 Veteran's statement, August 2015 Veteran's statement, and June 2021 Board hearing transcript. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for a heart disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include 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 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 Veteran has reported an in-service stressor involving witnessing a Marine shoot himself in the head. See, e.g., August 2017 Veteran's statement. During his June 2021 Board virtual hearing, he elaborated that the incident occurred while he served aboard the U.S.S. Proteus, likely between 1970 and 1972. See June 2021 Board hearing transcript, pp. 6. A remand is required to allow VA to attempt to corroborate the Veteran's reported stressor, as well as to provide a VA examination to determine the etiology of all diagnosed acquired psychiatric disorders. 2. Entitlement to service connection for a heart disability is remanded. The Veteran contends he was exposed to herbicides while in Guam, and that he also had asbestos and radiation exposure. See supra, Veteran's statements. In an October 2013 memorandum, a coordinator for the Joint Service Records Research Center (JSRRC) stated there are no documents that indicate herbicides were used on Guam. Based upon this information, the RO determined that the Veteran was not exposed to herbicide agents during his military service. However, since then the Veteran submitted several personal and buddy statements regarding herbicide use in Guam, and as noted previously, he has made contentions regarding exposure to radiation and asbestos. During his hearing, he also stated he believed his heart disability was caused by his PTSD. See June 2021 Board hearing transcript, pp. 3-4. While herbicide exposure has not been conceded, the Board finds that there is a duty to assist in providing an examination regarding this claim, as well as to address the Veteran's various contentions. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for a hematoma on brain is remanded. Finally, the Veteran contends his hematoma was caused by his heart disability. Because a decision on the issue of service connection for a heart disability could significantly impact a decision on the issue of service connection for a hematoma on brain, the issues are inextricably intertwined. A remand of the claim for a hematoma on brain is required. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2020 to the present. 2. Attempt to corroborate the Veteran's in-service stressor, including witnessing a Marine shoot himself in the head while aboard the U.S.S. Proteus, likely between 1970 and 1972. If more details are needed, contact the Veteran to request the information. 3. After the Veteran's reported stressor has been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 4. Then take all appropriate steps to seek to corroborate the Veteran's herbicide exposure while serving in Guam, as well as his reported radiation and asbestos exposure. The AOJ should then make findings regarding whether the Veteran was exposed to herbicide agents, radiation, and/or asbestos during service. 5. If herbicide exposure is not conceded, schedule the Veteran for a VA examination for his heart disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is a heart disability at least as likely as not related to service, to include any confirmed exposure to radiation or asbestos? Provide a rationale to support the opinion. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to service connection for a hematoma on brain. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. 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.