Citation Nr: 21069942 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-55 246 DATE: November 22, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for corneal scar, right eye, is reopened. Entitlement to service connection for corneal scar, right eye, is granted. New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD), is reopened, and to this extent only the appeal is granted. New and material evidence not having been received, the claim of entitlement to service connection for an esophagus disability remains denied. REMANDED Entitlement to service connection for a psychiatric disorder, including PTSD, is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. In an August 2011 rating decision, the RO denied the Veteran's original claim seeking entitlement to service connection for eye scarring from shrapnel. Notice of this decision was sent to the Veteran that same month. The Veteran did not subsequently perfect an appeal of this decision or submit new and material evidence during the appeal period, and that decision is final. 2. Some of the evidence received since the August 2011 rating decision is new and relates to unestablished facts necessary to substantiate the Veteran's claim for entitlement to service connection for corneal scar, right eye. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's corneal scar, right eye, is at least as likely as not related to his military service. 4. In an August 2011 rating decision, the RO denied the Veteran's original claim seeking entitlement to service connection for a psychiatric disorder. Notice of this decision was sent to the Veteran that same month. The Veteran did not subsequently perfect an appeal of this decision or submit new and material evidence during the appeal period, and that decision is final. 5. Some of the evidence received since the August 2011 rating decision is new and relates to unestablished facts necessary to substantiate the Veteran's claim seeking entitlement to service connection for a psychiatric disorder, including PTSD. 6. In an August 2011 rating decision, the RO denied the Veteran's original claim seeking entitlement to service connection for an esophagus disability. Notice of this decision was sent to the Veteran that same month. The Veteran did not perfect an appeal of the August 2011 rating decision or submit new and material evidence during the appeal period, and that decision is final. 7. The evidence added to the record since the August 2011 rating decision is cumulative or redundant of the evidence previously of record and does not raise a reasonable possibility of substantiating the Veteran's claim seeking entitlement to service connection for an esophagus disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for corneal scar, right eye. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for entitlement to service connection for corneal scar, right eye, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disorder, including PTSD. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for an esophagus disability; the claim remains denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1966 to October 1969. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Campaign Medal and Vietnam Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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). Moreover, where a veteran served continuously for 90 days or more during active service, and ulcers (gastric or duodenal), hypertension, and/or psychoses become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. New and Material Claims Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence having been received, the claim of entitlement to service connection for corneal scar, right eye, is reopened. In an August 2011 rating decision, the RO denied the Veteran's original claim seeking entitlement to service connection for eye scarring from shrapnel. Notice of this decision was sent to the Veteran that same month. The Veteran did not subsequently perfect an appeal of this decision or submit new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. The evidence considered at the time of the August 2011 decision included service treatment records, VA and private treatment records, and statements from the Veteran. The claim was denied in August 2011 because the evidence did not establish a link or nexus between the Veteran's current corneal scar, right eye, and his military service. Since the August 2011 rating decision, the Veteran has presented evidence of ongoing symptoms relating to his right eye disability since his military service. Specifically, he testified at his Board hearing that he continued to have problems with his right eye, including itching, irritation and burning, ever since his discharge from military service. The Veteran is competent to provide testimony concerning this symptomatology. The Board finds that this evidence, when considered in conjunction with prior evidence, is sufficiently new and material, and the claim of entitlement to service connection for corneal scar, right eye, is reopened. 2. Entitlement to service connection for corneal scar, right eye, is granted. Based upon a longitudinal review of the evidence of record, the Board concludes that the Veteran currently has corneal scar, right eye, that began during his active service. 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). Post-service treatment records show that the Veteran has a current diagnosis of corneal scar, right eye. A June 2011 VA eye examination concluded with a diagnosis of corneal scar, right eye. Thus, the question becomes whether his current disability is related to service. During service, the Veteran was seen in February 1969 for complaints of burning sensation in his bilateral eyes, with a foreign body in his left eye. The Veteran has testified that this inservice foreign body injury occurred to his right eye. He also testified that he continued to have problems with his right eye, including itching, irritation and burning, ever since his discharge from military service. A June 2011 VA examination for eye disorders noted the Veteran's history of an injury from metal debris going into his right eye. Physical examination revealed findings of a corneal scar, right eye. The VA examiner then opined that the Veteran's corneal scar, right eye, was most likely related to his in-service shrapnel injury. No contradictory opinions are of record. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for corneal scar, right eye, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. New and material evidence having been submitted, the claim of entitlement to service connection for a psychiatric disorder, including PTSD, is reopened. In an August 2011 rating decision, the RO denied the Veteran's original claim seeking service connection for a psychiatric disorder, including PTSD. Notice of this decision was sent to the Veteran that same month. The Veteran did not subsequently perfect an appeal of this decision or submit new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. The evidence considered at the time of the August 2011 decision included service treatment records, VA and private treatment records, and statements from the Veteran. The claim was denied in August 2011 because the Veteran presented no evidence of a psychiatric disorder during service. The decision also determined that there was no evidence of a current psychiatric disorder. Recently, the Veteran submitted a March 2021 private treatment report listing diagnoses of PTSD and major depressive disorder, recurrent moderate. The private physician then opined that these conditions were caused by an in-service explosion that injured the Veteran and killed a fellow soldier right in front of him. The Board finds that this evidence, when considered in conjunction with prior evidence, is sufficiently new and material, and the claim of entitlement to service connection for a psychiatric disorder, including PTSD, is reopened. Further development of this issue is, however, required prior to readjudication of the issue on the merits. 4. New and material evidence has not been submitted to reopen the claim of entitlement to service connection for an esophagus disability. In an August 2011 rating decision, the RO denied the Veteran's original claim seeking service connection for an esophagus disorder. The RO decision determined that there was no evidence of an esophagus disability during the Veteran's military service, and no evidence linking the Veteran's current esophagus disorder to his military service. Notice of this decision was sent to the Veteran that same month. The Veteran did not subsequently perfect an appeal of this decision or submit new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. The evidence of record at that time included the Veteran's statements, service treatment records, as well as post service treatment records up to that point. In March 2018, the Veteran filed his current application to reopen his claim seeking service connection for an esophagus disorder. Based upon a longitudinal review of the record, the Board concludes that the evidence added to the record since the August 2011 rating decision is cumulative or redundant of the evidence previously of record and does not raise a reasonable possibility of substantiating the claim. Simply put, no new evidence has been shown indicating that an esophagus disorder was incurred during service; and no new objective medical or other credible evidence linking any current esophagus disorder to the Veteran's military service has been received. Thus, the new evidence is cumulative, and the petition to reopen the Veteran's claim for service connection for an esophagus disorder is denied. See 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disorder, including PTSD, is remanded. In support of his claim, the Veteran submitted a March 2021 private treatment report which listed diagnoses of PTSD and major depressive disorder, recurrent moderate. The private physician opined that these conditions were caused by an inservice explosion that injured the Veteran and killed a fellow soldier right in front of him. More information is needed to allow the Board to make a fully-informed decision. While the Veteran has a current diagnosis of PTSD and major depressive disorder, VA has not yet attempted to corroborate the Veteran's in-service stressor. Under these circumstances, a remand is required to allow VA to attempt to corroborate the Veteran's reported stressor. Thereafter, the Veteran should be scheduled for an appropriate VA psychiatric examination to determine if his current psychiatric disorders are related to his military service. 2. Entitlement to service connection for hypertension is remanded The Veteran's service personnel records reflect that he served in the Republic of Vietnam from April 1968 to October 1969. Accordingly, he is presumed to have been exposed to herbicide agents as a result of his active service. 38 C.F.R. § 3.307. Hypertension is not included among the disabilities deemed to be presumptively related to herbicide agent exposure. See 38 C.F.R. § 3.309(e). That said, service connection for hypertension based on herbicide agent exposure may be granted on a direct basis. Importantly, in a 2018 update, the National Academy of Sciences (NAS) has upgraded the relationship between hypertension and herbicide exposure to "sufficient," indicating that there is enough epidemiologic evidence to conclude that there is a possible association between hypertension and herbicide exposure. This issue must be remanded for a determination as to whether the Veteran's hypertension may be related to his active service, to include his presumed herbicide agent exposure. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran's claimed in-service stressors, including the inservice explosion injuring him and killing a fellow service member. Contact the Veteran to request additional information needed for this purpose. 2. After the Veteran's reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of his PTSD, major depressive disorder, and any other psychiatric disorder found. As for his PTSD, the VA 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. For any psychiatric disorders other than PTSD found, including major depressive disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. A complete rationale must be provided for all requested opinions. 3. Obtain an addendum opinion from an appropriate examiner as to the possible relationship between the Veteran's claimed hypertension and his active service, to include his presumed exposure to herbicide agents. The Veteran should only be scheduled for an examination if deemed necessary by the reviewing examiner. Regardless of whether an examination is performed, the examiner is to answer the following questions: a) Is it at least as likely as not that the Veteran's hypertension is related to or had its onset during the Veteran's active service, to include his exposure to herbicide agents? In answering this question, the examiner must address the 2018 NAS update. A negative opinion may not be based solely on the fact that hypertension is not a presumptive disability. b) Is it at least as likely as not that the Veteran's hypertension is proximately due to, the result of, or aggravated by any diagnosed psychiatric disorder? A complete rationale must be provided for all requested opinions. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, 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.