Citation Nr: 21070239 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-17 876 DATE: November 23, 2021 ORDER As new and material evidence has been received, the claim for service connection for coronary artery disease (CAD) is reopened. REMANDED Service connection for CAD is remanded. Service connection for diabetes mellitus, type 2 (DM2) is remanded. Service connection for gastrointestinal reflux disease (GERD), to include as secondary to service-connected disabilities, is remanded. Service connection for hypertension (HTN), to include as secondary to service-connected disabilities, is remanded. Service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In July 2013, the RO denied service connection for the Veteran's claim for CAD; the Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision is final. 2. Evidence received since July 2013 is new and material because it relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for CAD and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2013 rating decision that denied service connection for CAD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2021). 2. New and material evidence has been received, the claim of entitlement to service connection for bilateral shin splints is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from July 1965 to June 1969. The Veteran is the recipient of two Vietnam Service Medals (VSMs). These matters come before the Board of Veterans' Appeals from an appeal of a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board has recharacterized an issue on appeal as an acquired psychiatric disorder in light of issues raise in the evidence of record and the benefits which the Veteran seeks. See Clemons v. Shinseki, 23 Vet. App, 1. 5 (2009). New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104(b). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 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. 38 C.F.R. § 3.156(a). 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. Id. 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). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence. relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Discussion The RO denied service connection for CAD in a July 2013 rating decision. The RO considered evidence consisting of service treatment records (STRs); the Veteran's DD Form 214; a June 2012 VA Form 21-0960A-1 (Ischemic Heart Disease (IHD) Disability Benefits Questionnaire; a VA Form 3101 (Request for Information and responses; a VA Form 27-0829 (Report of General Information); and a July 2013 VA Formal Finding. The RO stated that while this evidence showed Vietnam service, it failed to disclose conclusive evidence of in-country duty or visitation in the Republic of Vietnam between January 9, 1962 and May 7, 1975. Moreover, the evidence failed to disclose any in-service incurrence of CAD or manifestation of such during the applicable presumptive period. Since July 2013, VA has received new and material evidence consisting of multiple pieces of correspondence; copies of two medical research articles; and, most notably, the Veteran's sworn declaration. Especially considering the low evidentiary threshold of Shade, this evidence is material to previously unestablished facts material to CAD and the Veteran's service in the territorial waters of the Republic of Vietnam and raises reasonable possibilities of substantiating this claim. See 38 C.F.R. § 3.156(a). Consequently, this evidence is new and material. As such, the Board reopens the Veteran's service connection claim for CAD. REASONS FOR REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. CAD DM2 The Veteran asserts that his CAD and DM2 are due to exposure to herbicides (Agent Orange) during active-duty service in the coastal waters of the Republic of Vietnam. Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of 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 disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F. 3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F. 3d 1363, 1366 (Fed. Cir. 2009).) Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, diseases including ischemic heart disease (here "CAD") and DM2 shall be service connected if the requirements of 38 C.F.R. § 3.30(a) are met are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). In Procopio v. Wilkie, 913 F. 3d 1371 (Fed. Cir. 2019), the U.S. Court of Appeals for the Federal Circuit reversed its prior precedent and held that "service in the Republic of Vietnam" under 38 U.S.C. § 1116 includes service in the territorial sea, 12 nautical miles from the coastline. In turn, a Veteran who had this qualified "blue water" active-duty service falls within the category of Veterans for whom exposure to an herbicide agent is presumed. See 38 C.F.R. §§ 3.307, 3.309. Upon review of VA progress notes, clinicians indicated that the Veteran had CAD, DM2, GERD, HTN, and a mental health disorder (acquired psychiatric disorder). Clinicians followed the Veteran's medication and laboratory results. The Board takes note of a March 3, 1968 and April 6, 1968 STRs, which indicate that the Veteran sought treatment aboard an aircraft carrier, CVS-10. Personnel records show that the VSM awards were made for service from December 1966 to June 1966 and from March to June 1968 indicating only that he was in the Southeast Asia theater of operations. In a July 3, 2013 VA 21-0820 Report of Information, a VA representative wrote (referencing an internal VBA MAP-D) that, [The] Veteran's STRs note [that] he was onboard the USS Yorktown (CVS-10) during [a] period [that] the ship conducted counter-offensive operations in the official waters of Vietnam. (emphasis added). The Veteran was assigned to Helicopter Anti-Submarine Squadron 4 from 12/65 to 6/69 except for temporary duty with Helicopter Anti-Submarine Squadron 2 from 5/67 to 10/67. He reported deploying on USS Yorktown and USS Hornet on deployments during the time indicated above for the award of two separate VSMs. He reported seeing land and his representative provided line of sight calculations as proof of distance from land, although whether the land was North or South Vietnam is not clear. The Board is aware that the Veterans Benefits Administration has developed a data base of ship positions during this era based on ship deck log positions. The RO must determine through the "ship location" database whether the USS Yorktown and/or USS Hornet were deployed within 12 nautical miles of the Republic of Vietnam during the Veteran's service on either vessel during the time periods for which the VSMs were awarded. Likewise, the RO must seek to confirm whether helicopters from the Veteran's anti-submarine squadron actually performed "search and rescue" missions on land in the Republic of Vietnam during the Veteran's deployments on those vessels. GERD HTN Acquired Psychiatric Disorder In his June 2019 sworn declaration, the Veteran swore that he did not suffer from GERD, HTN, or an acquired psychiatric disorder prior to active-duty service. As to GERD and acquired psychiatric disorder, the Veteran swore that he has suffered from symptomatology since his separation from active-duty service in June 1969. As to HTN, the Veteran swore that he received a formal diagnosis "shortly before" coronary bypass surgery (attributable to CAD). Also, in June 2019, the Veteran submitted a copy of a medical research article which suggests and association between diabetes mellitus and GERD (World J Gastroernterol 2015 March 12: 21(10): 3085-3092)). A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. Here, the evidence of record does indicate that GERD, HTN, and an acquired psychiatric disorder may be associated with events or injuries in service. The matters are REMANDED for the following actions: 1. Through the "ship location" database, determine whether the USS Yorktown and/or USS Hornet were deployed within 12 nautical miles of the Republic of Vietnam during the Veteran's service on either vessel. 2. If both ships were not within 12 nm of the Republic of Vietnam during his deployments, request from the appropriate research agencies information whether helicopters from the Veteran's squadron actually performed s "search and rescue" missions on land in the Republic of Vietnam during active-duty service. All efforts should be undertaken until said records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain these identified medical records would be futile. See 38 U.S.C. § 5103A(c)(1)(C). 3. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any additional private records of treatment for the claimed disabilities. The RO must follow the procedures laid out in 38 U.S.C. § 5103A(b)(2)(B). 4. Obtain any outstanding VA treatment records and associate them with the claims file. 5. Arrange for a VA GERD, HTN, and acquired psychiatric disorder examination with an appropriate clinician/s. The clinician/s must review the entirety of the claims file and indicate such review in the body of each respective opinion or examination report. The clinician/s should perform all necessary evaluation protocols. Upon completion of the above, the clinician/s should respond to the following inquiries: a. What, if any, current diagnoses are apposite to, or best approximate:1) GERD; 2) HTN; 3) an acquired psychiatric disorder? Upon each respective current diagnostic determination, the clinician/s should opine: b. Whether it is at least as likely as not (50 percent probability or more) that the respective diagnosed disability had its onset in service or is otherwise etiologically related to the Veteran's active service, including any incidence of service, including if shown, exposure to herbicide agents? AND Whether it is at least as likely as not (50 percent probability or more) that the respective diagnosed disability (analogous to GERD or HTN) was proximately caused by, or aggravated beyond its natural progression by, a service-connected disability (to include CAD and DM2 if so warranted through the RO's development above).The clinician/s must address findings in the medical research article ((World J Gastroernterol 2015 March 12: 21(10): 3085-3092)), as noted above. The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the clinician/s rejects the Veteran's reports, she/he must provide an explanation for such rejection. Complete, clearly stated rationales for the conclusions reached must be provided. Merely stating that it is his or her opinion that a disorder was not caused or aggravated by a service does not suffice. An explanation takes into account the record and pertinent medical principles and the rationale should include citation to pertinent evidence and/or medical principles which form the opinion. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.