Citation Nr: 21069547 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-15 766 DATE: November 18, 2021 ORDER The application to reopen the claim of service connection for peripheral neuropathy, to include as a result of herbicide exposure, is granted. The application to reopen the claim of service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is granted. REMANDED Entitlement to service connection for peripheral neuropathy is remanded. FINDINGS OF FACT 1. In an April 2005 rating decision, the Regional Office (RO) denied the claim for entitlement to service connection for peripheral neuropathy based on a lack of an in-service event, injury or disease or a nexus between the current disability and active service. The Veteran did not timely appeal the decision within the one-year appeal period. 2. Evidence received since the April 2005 rating decision relates to a previously unestablished fact necessary to substantiate the claim for peripheral neuropathy. 3. In a February 2015 rating decision, the RO denied the claim for entitlement to service connection for PTSD based on finding no current diagnosis of PTSD. The Veteran did not timely appeal the decision within the one-year appeal period. 4. Evidence received since the February 2015 rating decision relates to a previously unestablished fact necessary to substantiate the claim for PTSD. 5. The record supports that the Veteran's acquired psychiatric disorder, to include PTSD, is related to his service. CONCLUSIONS OF LAW 1. The April 2005 rating decision that denied the claim for entitlement to service connection for peripheral neuropathy is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. 2. Evidence received since the April 2005 rating decision is new and material and the claim for entitlement to service connection for peripheral neuropathy is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The February 2015 rating decision that denied the claim for entitlement to service connection for PTSD is final. 3 8 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.156 (b), 20.1103. 4. Evidence received since the February 2015 rating decision is new and material and the claim for entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304(f)(3). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1965 to July 1967, including in the Republic of Vietnam. The matters arise from a March 2018 rating decision. The Veteran testified at a July 2021 Board Hearing before the undersigned Veterans Law Judge. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers that bears directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. The application to reopen the claim of entitlement to service connection for peripheral neuropathy, to include as a result of herbicide exposure, is granted. Here, the final denial of the claim for entitlement to service connection for peripheral neuropathy was an April 2005 rating decision. See April 2005 rating decision. The RO denied the claim due to the absence of evidence that neuropathy was diagnosed to a compensable degree within a year of his presumed exposure to herbicides. The Veteran sought to reopen his claim for peripheral neuropathy. The evidence received since the final April 2005 decision include an April 2010 lay statement from the Veteran that he believes his peripheral neuropathy was caused by his exposure to Agent Orange while he was in Vietnam and having to dig out ammo from the mud. A May 2016 VA treatment record also notes that the Veteran reported that he has had numbness and tingling in lower bilateral extremities ever since returning from Vietnam. The Board finds the evidence new as they were not previously submitted to agency decision makers and is not redundant. The evidence is material as it addresses the previously unestablished fact of a nexus. Accordingly, the claim is reopened. 2. The application to reopen the claim of service connection for an acquired psychiatric disability, to include PTSD, is granted. Here, the final denial of the claim for entitlement to service connection for PTSD was rendered in a February 2015 rating decision. The RO denied the claim due, in part, to a finding of no current diagnosis of PTSD. The Veteran sought to reopen his claim for entitlement to service connection for PTSD. The evidence received since the final February 2015 rating decision includes medical records showing that the Veteran has a current PTSD diagnosis. See, e.g., April 2009 Hines, IL VA medical center records, received March 2018 in CAPRI. The Board finds the evidence new as it was not previously submitted to agency decision makers. The evidence is also material as it addresses the previously unestablished fact of a current disability. It is not redundant and, in the very least, when considered with the evidence of record, would trigger VA's duty to assist by providing a medical opinion, which might "raise a reasonable possibility of substantiating the claim." See Shade, 24 Vet. App. at 110. Accordingly, the claim is reopened. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In order to be entitled to service connection for PTSD, there must be medical evidence of PTSD, medical evidence that establishes a link between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304 (f); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The criteria to establish service connection for PTSD vary with regard to the nature of the in-service stressor. As will be discussed, the Veteran's claimed stressor suggests fear of hostile military or terrorist activity. With regard to PTSD due to fear of hostile military or terrorist activity, 38 C.F.R. § 3.304 (f)(3) provides that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay statements alone may establish the occurrence of the claimed in-service stressor. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154 (a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.§ 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is granted. Here, the Board finds that the Veteran has a current diagnosis of an acquired psychiatric disability. See September 2014 VA Initial PTSD DBQ (other specified stressor or trauma-related disorder diagnosis and PTSD diagnosis); April 2009 Hines, IL VA medical center record (PTSD diagnosis). Thus, the first element of service connection is not in question. As to an in-service stressor, the Veteran has indicated that while serving in Vietnam, he feared for his own life during mortar attacks. See September 2014 VA Initial PTSD DBQ. The description of "fear of hostile military or terrorist activity" provided in 38 C.F.R. § 3.304 (f)(3) includes psychological symptoms resulting from having experienced or being confronted with circumstances that involved actual or threatened death or serious injury, such as from mortar fire. 38 C.F.R. § 3.304 (f)(3). As such, if the criteria set forth in 38 C.F.R. § 3.304 (f)(3) are met, the claim be may granted. Here, the Board finds that the criteria set forth in 38 C.F.R. § 3.304 (f)(3) have been met. In the September 2014 VA Initial PTSD DBQ Examination report, the examiner found that the Veteran's experience of fearing for his own life during mortar attacks in Vietnam is adequate to support a diagnosis of PTSD and, further, found that the Veteran's PTSD symptoms are related to this claimed stressor. See September 2014 VA Initial PTSD DBQ. Because this assessment is also consistent with the overall record, and because other mental health treatment reports from Hines, IL VA medical center records regarding the Veteran's PTSD reflect his consistent reports that he has nightmares about the in-service event, resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria set forth in 38 C.F.R. § 3.304 (f)(3) regarding confirmation from a VA psychiatrist are met. Additionally, there is no clear and convincing evidence that the claimed in-service stressor did not occur. To the contrary, the record reflects that the Veteran served in Vietnam, and treatment reports reflect that his reports of the event have been consistent. See, e.g., Hines, IL VA medical center records, received March 2018 in CAPRI. Explosions are also consistent with the circumstances of service in Vietnam during the Veteran's time of service. Given the probative evidence, the Board finds that the preponderance of the evidence supports the Veteran's claim. As such, service connection for an acquired psychiatric disorder, to include PTSD due to fear of hostile military or terrorist activity, is granted. Moreover, while the Board notes that the Veteran has also been diagnosed with other specified trauma and stressor related disorders, the record does not reflect that any psychiatric symptoms have been, or are capable of being, differentiated from PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between the symptomatology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so); see also 38 C.F.R. § 4.14 (pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability). As such, the Board has attributed all symptoms shown in this case to the service-connected acquired psychiatric disorder, to include PTSD, which is not prejudicial to the Veteran as all psychiatric symptoms will be rated pursuant to the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy is remanded. The medical evidence of record reflects that the Veteran has been diagnosed with peripheral neuropathy. See July 2021 VA medical record. There is no medical evidence that he was diagnosed with peripheral neuropathy within a year of his presumed exposure to herbicides, however, he has asserts that he has had numbness and tingling in lower bilateral extremities ever since returning from Vietnam. See, e.g., May 2016 VA treatment record. Notwithstanding the foregoing presumptive provisions for herbicide exposure regarding early onset peripheral neuropathy, the Veteran is not precluded from establishing service connection with proof of direct causation for the current peripheral neuropathy. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As there is conflicting information about diagnosis (whether or not he had "early onset" peripheral neuropathy) and no medical opinion regarding direct service connection for peripheral neuropathy due to Agent Orange exposure, the Board remands for a VA examination and medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination regarding peripheral neuropathy. The examiner should answer the following questions: i) Specifically state whether or not the Veteran has a diagnosis of early-onset peripheral neuropathy. The examiner must explicitly address and consider the Veteran's statements that he has had numbness and tingling in lower bilateral extremities ever since returning from Vietnam and that his peripheral neuropathy was not identified after the Vietnam War when it should have been. See, e.g., May 2016 VA treatment record; April 2018 Notice of Disagreement. ii) If the Veteran has a diagnosis other than early-onset peripheral neuropathy, opine as to whether it is at least as likely as not that the diagnosed disability had its onset during service or is otherwise related to service, to include herbicide exposure. The examiner should be instructed that the Veteran's herbicide exposure is presumed. The examiner is asked to specifically address the Veteran's claims that he began to experience symptoms related to tingling and numbness at and immediately after his discharge from the service. See, e.g., May 2016 VA treatment record. The examiner is also asked to specifically address the Veteran's statements made at the Board Hearing that his neuropathy symptoms "started from my legs and is working up and its all the way up to my face and my lips. Every once in a while, they'll go numb. You get that tingling feeling like you get a cold chill in your body. I believe that the Agent Orange has contributed to the neuropathy because we had to dig the ammunition out of the mud with bare hands, arms digging down in there, that caused the neuropathy." See Board Hearing Transcript, p. 7. For each of the above requested opinions, the examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. For all opinions, the RO should ensure that a rationale is provided, to include specific discussion of the medical principles involved and the relevant facts. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.