Citation Nr: 21068673 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 19-26 748 DATE: November 12, 2021 ORDER The petition to reopen the claim for entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. The petition to reopen the previously denied claim for service connection for basal cell carcinoma is denied. The claim for entitlement to service connection for obstructive sleep apnea (OSA) is denied. REMANDED The claim for entitlement to service connection for a psychiatric disorder to include PTSD, dysthymia and anxiety is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for PTSD was denied by an August 2015 rating decision; no material evidence was received within the one-year period following notification of the August 2015 rating decision. 2. Evidence received since the August 2015 rating decision supports the previously unestablished fact of a diagnosis of PTSD, and of a causal connection between the diagnosed PTSD and active service, and is new and material to the claim for service connection for PTSD. 3. The claim for entitlement to service connection for basal cell carcinoma was denied by an August 2015 rating decision; no material evidence was received within the one-year period following notification of the August 2015 rating decision. 4. Evidence received since the August 2015 rating decision is neither new nor material in that it does not support the previously unestablished fact of an etiological connection between the diagnosed basal cell carcinoma and active service or any incident therein. 5. OSA did not have its onset during active service and is not otherwise etiologically related to active service or any incident therein. CONCLUSIONS OF LAW 1. The August 2015 rating decision that denied service connection for PTSD is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2021). 2. The criteria for reopening the claim of service connection for PTSD have been met. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. 3. The August 2015 rating decision that denied service connection for basal cell carcinoma is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. The criteria for reopening the claim of service connection for basal cell carcinoma have not been met. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. 5. The criteria for service-connection for OSA have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service in the U.S. Army from June 1968 to February 1970. Service records show he served in the Republic of Vietnam from January 1969 through January 1970. This case arises before the Board of Veteran's Appeals (Board) from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran was scheduled for a hearing by video teleconference before a Veterans Law Judge in October 2021, in accordance with his request for such hearing as indicated in his substantive appeal. However, he failed to report for the scheduled hearing. There is no indication that he or his representative canceled the hearing or reported good cause for failing to report. Accordingly, the Board determines that the duty to afford the Veteran an opportunity to testify before the Board has been met. New and Material The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any action which may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has listed the issues as such on the title page of this decision. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." 38 C.F.R. § 3.156(a). "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim." Id. The United States Court of Appeals for Veterans Claims (Court) has defined material evidence as: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). To be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," by enabling, not precluding, the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The Veteran contends he is diagnosed with and treated for PTSD that is the result of stressors that he experienced during active duty in Vietnam, and his basal cell carcinoma is the result of exposure to herbicides, including Agent Orange. The August 2015 rating decision denied service connection for PTSD because the record presented no evidence the Veteran had been diagnosed with PTSD. Rather, the 2015 VA examiner determined the Veteran did not meet the requirements for a diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders, 5th Ed. (2013) (DSM-V) as required under 38 C.F.R. § 4.125. The August 2015 rating decision denied service connection for basal cell carcinoma for two reasons. First, although his exposure to herbicides was conceded, the regulations did not provide a presumption for service connection for basal cell carcinoma as the result of herbicide exposure. Second, the record presented no medical evidence of a causal nexus between the diagnosed basal cell carcinoma and active service or any incident therein, including exposure to herbicides. No evidence relevant to the claims for service connection for PTSD and basal cell carcinoma was received in the one-year period following notification of the August 2015 rating decision. The August 2015 rating decision thus became final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b), 20.1103; see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). a) PTSD Concerning the claim for PTSD, evidence added to the file since the August 2015 rating decision includes VA treatment records and a Disability Benefits Questionnaire (DBQ) showing diagnoses of PTSD dated, respectively, in 2016 and 2017. In addition, the DBQ contained the opinion of a private psychologist that the majority of the Veteran's "emotional deficits" was more likely than not the result of psychological trauma the Veteran experienced during active service. This evidence is new and material to his claim for service connection for PTSD. It is new in that it documents that the Veteran is now diagnosed with and treated for PTSD. In addition, this evidence tends to show he has a psychiatric disorder to include PTSD that is the result of active service. The evidence is also material in that it (1) relates to the missing element of a diagnosis because both VA and private medical evidence, medical personnel diagnosed PTSD; and (2) the private psychologist further provided evidence of a causal nexus between the diagnosed PTSD is the result of active service. As such, the new evidence relates to the unestablished elements of a diagnosis of PTSD and the presence of an etiological connection, or causal nexus, between the diagnosed PTSD and active service. Accordingly, the Board finds that reopening of the claim for service connection for PTSD is warranted. The claim to reopen the previously denied claim for PTSD is granted. The Board finds additional evidence is needed regarding this claim. This necessary development is discussed in the remand section below. b) Basal Cell Carcinoma Concerning the claim for basal cell carcinoma, relevant evidence added to the file since the August 2015 rating decision includes VA treatment records, annotated copies of VA treatment records previously submitted, and the Veteran's statements. In contrast to the evidence submitted concerning PTSD, the evidence received concerning the claim for basal cell carcinoma is duplicative of that already of record. VA treatment records show the Veteran has a history of basal cell carcinoma; and the annotated copies of VA treatment records show a biopsy in 2013 that confirmed basal cell carcinoma. The fact the Veteran had basal cell carcinoma and the 2013 biopsy results were of record at the time of the August 2015 rating decision. Similarly, the Veteran's statements are duplicative in that he argued he had basal cell carcinoma, which he believes is the result of active service, to include exposure to herbicides. As this evidence is duplicative, it is not new. Moreover, it is not material because it does not address the unestablished element of a causal nexus between the diagnosed basal cell carcinoma and active service to include exposure to herbicides. There is no other lay or medical evidence submitted since the August 2015 rating decision that establishes or tends to establish, or addresses, the missing element of a causal connection between the diagnosed basal cell carcinoma and active service. Accordingly, the Board finds that the reopening of the claim for service connection for basal cell carcinoma is not warranted. The claim to reopen the previously denied claim for basal cell carcinoma is denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). VA treatment records reflect the Veteran is diagnosed with mild sleep disordered breathing, severe pulmonary disease, and suspected OSA. See Medical Treatment Record Government Facility, received 3/17/2019. In addition, the Veteran has generally argued his OSA is the result of active duty. However, the record does not show a causal nexus between the currently diagnosed sleep disordered breathing and the Veteran's active service. As such, the criteria under Shedden are not met. It is noted that the Veteran's service treatment records are not of record. In addition, it appears that the Veteran's claims file was missing and reconstructed. Reference is made to the February 2009 rating decision, in which the agency of original jurisdiction (AOJ) noted review of pre-induction and induction examinations dated, respectively, in 1966 and 1968. However, these records are no longer present in the claims file and no other service treatment records are on file. Multiple entries document the AOJ's efforts to reconstruct the missing files and to obtain additional records from the service department, to no avail. The Board has a heightened obligation to explain its findings and conclusions and to carefully consider applying the benefit-of-the-doubt rule in cases whether the Veteran's service records are missing and cannot be reconstructed. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the O'Hare precedent does not raise a presumption that the missing records, if available for consideration, necessarily would support the claim. That is to say, missing service treatment records do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, the Veteran's missing service treatment records, alone, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993). Here, the AOJ notified the Veteran that his records were missing by letter in February and August 2017 and advised the Veteran of the type of evidence he could submit in substitute. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"). In addition, the AOJ notified the Veteran of the type and kind of evidence needed to support his claims for service connection in a September 2016 duty to assist letter. Yet, while the Veteran provided medical evidence showing or tending to show he had been diagnosed with the claimed OSA, he has not provided lay or medical evidence showing or tending to show symptoms, treatment for or diagnoses of, or any other findings of the claimed OSA during active service. Moreover, he has not provided lay or medical evidence showing or tending to show the currently diagnosed sleep disordered breathing and suspected OSA is causally linked to active service or any incident therein. VA's duty to assist includes providing a medical examination or obtaining an opinion when needed to decide a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). However, the Board concludes that the AOJ did not commit error in declining to afford VA examination in this case because the Veteran has not presented evidence of two of the three elements of Shedden, as above explained. In sum the medical evidence in the Veteran's favor consists only of medical evidence of currently diagnosed mild sleep disordered breathing and suspected OSAthe first criteria under Shedden. The Veteran has not submitted evidence of, and the record does not contain lay or medical evidence establishing or tending to establish the second or third criteria under Shedden. There are no other medical findings, medical statements or opinions tending to show the claimed OSA had its onset during active service or that OSA is the result of active service or any incident therein. The Board reminds the Veteran the duty to assist is a two-way street and if the Veteran wishes help, he cannot passively wait in those circumstances where he may or should have information that is essential in obtaining the relevant evidence but fail to provide such information. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran was notified that his service treatment records were missing and presumed lost and was asked to provide substitute information in February and August 2017. He was informed of the lay and medical evidence required to support his claims for service connection, including that for OSA, in September 2016. He failed to respond with the necessary information. Finally, he requested a hearing before the Board, and one was scheduled for him. He and his representative were notified of the time and place for the hearing, but he failed to respond. Should the Veteran wish to participate fully in this claim in the future, he is encouraged to file another claim. Accordingly, and because only one of the criteria under Shedden is met, service connection for OSA cannot be warranted, and the claim is denied. REASONS FOR REMAND The Board has reopened the Veteran's previously denied claim for service connection for PTSD. However, the record shows the Veteran is diagnosed not only with PTSD but also with dysthymia, or persistent depressive disorder, and anxiety. See 2017 DBQ; see also, generally, CAPRI records. Thus, the Board has re-characterized the claim as one for service connection for a psychiatric disorder to include PTSD, dysthymia and anxiety. Remand is required to allow the AOJ to review the new and material evidence as discussed above: (1) the 2017 DBQ psychologist's diagnoses of PTSD and dysthymia, (2) the VA physician's provisional diagnosis of PTSD in 2016, and (3) the 2017 private psychologist's opinion that the Veteran's "emotional deficits" are more likely than not the direct result of psychological trauma the Veteran experiences while on active service. See 2017 DBQ. First, remand is required to obtain those treatment records referenced by the 2017 psychologist and any and all VA mental health care treatment records resulting from the 2016 encounter in which the Veteran was provisionally diagnosed with PTSD and indicated he wished to pursue further counseling. Second, remand is required to verify the Veteran's stressors. The Veteran has reported combat-related stressors to include exposure to direct and indirect fire. The Veteran's service treatment records are incomplete, and the AOJ made a formal finding that they are missing and cannot be obtained. Notwithstanding, his personnel file and discharge documents reflect he was assigned to the 758th Service and Support (S&S) Company from January 1969 through January 1970. The 758th S&S provided direct support and was typically located at Phu Loi during the Veteran's active service. See The Vietnam Order of Battle (Shelby, 1981) p. 205. Further development can be pursued with this information. Third, and finally, additional VA examination is required. Although the medical record shows the Veteran is diagnosed with PTSD, the VA diagnosis was provisional, and the private diagnosis is not clearly categorized as meeting the criteria of DSM-V. In addition, an opinion as to etiology for the diagnosed dysthymia and anxiety must be obtained, as well as for the diagnosed PTSD, should the diagnosis of PTSD meet the DSM-V criteria. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The matter is REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and identified private treatment records to include, at minimum, the treatment records referenced by the private physician in the 2017 DBQ and any and all mental health VA treatment records. 2. Complete all development necessary to corroborate the Veteran's stressors, which include but are not limited to the following: (a.) exposure to direct and indirect fire while attached to the 758th S&S Company, typically located at Phu Loi; (b.) Enemy attack and overrun of base at which Veteran was stationed in 1969 at the end of year (c.) Participation in graves registration where he performed duties in support of the dead and updating of personnel information. 3. Schedule the Veteran with the appropriate specialist for VA psychiatric examination to assess the nature and etiology of any psychiatric disorder to include PTSD, dysthymia and anxiety. All acquired psychiatric pathology must be reported. The claims file must be reviewed in conjunction with the claims file. For all diagnosed psychiatric pathology the examiner must offer opinions as to whether it is at least as likely as not (50 percent or more probability) that any diagnosed psychiatric disability (a) had its onset during active service, or (2) is the result of active service or any incident therein to include the Veteran's identified stressors. A complete rationale for each opinion provided is necessary. The VA examiner must discuss (a) the Veteran's lay testimony, (b) any and all information obtained by the AOJ concerning the Veteran's assigned unit; and (c) the potential the Veteran and/or his unit served under combat conditions. 4. The AOJ must ensure that all requested development has been completed. 5. After the above development has been completed, readjudicate the claim. If the claim is again denied, the AOJ must send the Veteran and his representative a supplemental statement of the case with sufficient time to respond. The case should thereafter be returned to the Board as appropriate. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.