Citation Nr: 21071717 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-00 543 DATE: December 1, 2021 ISSUES 1. Whether the character of discharge for the period from November 8, 1965, to October 21, 1969, is a bar to VA Benefits. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a skin disability, to include as due to ionizing radiation and/or herbicide exposure. 4. Entitlement to service connection for a stomach disability, to include as due to ionizing radiation and/or herbicide exposure. 5. Entitlement to service connection for muscle aches, to include as due to ionizing radiation and/or herbicide exposure. 6. Entitlement to service connection for headaches, to include as due to ionizing radiation and/or herbicide exposure. 7. Entitlement to service connection for a left shoulder disability. 8. Entitlement to service connection for a right shoulder disability. ORDER The character of the Veteran's discharge from service from November 8, 1965, to October 21, 1969, is not a bar to entitlement to Department of Veterans Affairs (VA) benefits. Entitlement to service connection for PTSD is granted. REMANDED Entitlement to service connection for a skin disability, to include as due to ionizing radiation and/or herbicide exposure is remanded. Entitlement to service connection for a stomach disability, to include as due to ionizing radiation and/or herbicide exposure is remanded. Entitlement to service connection for muscle aches, to include as due to ionizing radiation and/or herbicide exposure is remanded. Entitlement to service connection for headaches, to include as due to ionizing radiation and/or herbicide exposure is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran was initially discharged on October 21, 1969, with an undesirable discharge that was considered other than honorable for VA purposes. 2. As a result of an August 2020 decision of the Army Board for Correction of Military Records (ABCMR), the Veteran's character of discharge was upgraded to "under honorable conditions (general)", and a Form DD 215 reflecting this was issued in September 2020. 3. There is no statutory or regulatory bar to VA benefits. 4. The Veteran's PTSD is related to his active service. CONCLUSIONS OF LAW 1. The character of the Veteran's discharge from military service is not a bar to entitlement to VA benefits. 38 U.S.C. §§ 105 (a), 5303 (2017); 38 C.F.R. § 3.12, (2017). 2. The criteria for service connection for a PTSD have been met. 38 U.S.C. §§ 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified before the undersigned in September 2021 during a videoconference hearing. A copy of the transcript is of record. The Board notes that the issue of entitlement to a total rating based on individual employability due to the now service-connected PTSD was raised in May 2021 correspondence but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and the issue is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, as to the claims decided below, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Character of Discharge A discharge or release from active service under conditions other than dishonorable is generally a prerequisite to entitlement to VA pension or compensation benefits. See 38 U.S.C. § 101 (18); 38 C.F.R. § 3.12 (a). There are two types of character of discharge bars to establishing entitlement for VA benefits: (1) statutory bars found at 38 U.S.C. § 5303 (a) and 38 C.F.R. § 3.12 (c); and (2) regulatory bars listed in 38 C.F.R. § 3.12 (d). As to the regulatory bars, a discharge or release because of one of several possible offenses is considered to have been issued under dishonorable conditions, as applicable here: (4) Willful and persistent misconduct, to include a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12 (d)(4). An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1 (n). An absence without leave, precluding the performance of military duties, cannot constitute a minor offense for purposes of willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). The Veteran's service personnel records reflect he was initially discharged on October 21, 1969, with an undesirable discharge that was considered other than honorable for VA purposes. However, the Veteran thereafter made application for correction of his military record to the ABCMR. The ABMCR subsequently granted full relief to the Veteran. That is, as a result of an August 2020 decision of the ABCMR, the Veteran's character of discharge was upgraded to "under honorable conditions (general)", and a Form DD 215 reflecting this was issued in September 2020. An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority 10 U.S.C. §1552 is final and conclusive on VA. The action of the board sets aside any prior bar to benefits imposed under paragraph (c) or (d) of this section. 38 C.F.R. § 3.12 (e) (2017). As such, the Veteran's character of discharge is general under honorable conditions, and is not a bar to benefits issued by the VA. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV or DSM V)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). In addition, 38 C.F.R. § 3.304 (f)(3) provides that if a claimed PTSD stressor is related to a veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. "'Fear and hostile military or terrorist activity' means that a veteran experienced, witnessed or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from... incoming artillery, rocket, or mortar fire,... and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." 38 C.F.R. § 3.304 (f)(3). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See, Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge, and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When positive and negative evidence approximately balance regarding the merits of an issue material to determining the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b). The Veteran maintains that he is entitled to service connection for PTSD which he attributes to service. The Veteran reported, and testified before the undersigned, that his PTSD is at least in part based on his fear for his life of hostile military activity, to include during his deployment to Vietnam where he was a photographer. The Veteran stated that he was dropped down a chute with a cage called a power drive, and he would sit on a bench waiting for days to get a picture. He stated that as he was waiting for the picture, he would start to have nightmares and see the enemy coming out of the rocks. The Veteran's DD Form 214 shows that he was a photographer, and he served in the Republic of Vietnam. In light of the foregoing, and given the lack of any clear and convincing evidence to contrary, the Board finds that the Veteran's statements regarding what he experienced in service, and the resulting fear it caused him, to be credible. The Veteran also submitted multiple lay statements from his spouse, attesting to his mental health symptoms and experiences while in service. The Veteran was afforded a VA examination on July 14, 2016, in which the examiner diagnosed PTSD and stated that it was at least as likely as not that the symptoms of PTSD were etiologically related to his service in Vietnam. The examiner noted marked deterioration in behavior in service leading to reduction in rank, absent without leave (AWOL), and ultimate discharge as under conditions other than favorable following his deployment to Vietnam. The examiner stated that the symptoms of PTSD were, by onset and contents, at least as likely as not etiologically related to the Veteran's fear of hostile military or terrorist activity while serving on active duty. The Veteran's stressors in service were noted to include having to take photographs of a dead body and doing photography jobs in underground cities of the enemy. The Board concludes that the Veteran has a current diagnosis of PTSD that is related to his active duty 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), 3.304 (f)(3). That is, in light of the above, the Board finds that the elements of 38 C.F.R. § 3.304 (f)(3) have been satisfied and that the evidence shows that the Veteran's PTSD is related to his active duty service. See, 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). As such, entitlement to service connection for PTSD is granted. REASONS FOR REMAND The Veteran claims that service connection is warranted for the remaining disabilities on appeal as they had onset in service, are related to ionizing radiation exposure in service, and/or are related to his herbicide exposure in service. Service treatment records in August 1967 show complaints of stomach pain; records in October and November 1967 show complaints of headaches. VA treatment records show diagnoses to include bursitis of the shoulder, complaints of headaches and cramps in the stomach, and that the Veteran takes medication for his stomach acid. The Board finds that the Veteran's exposure to herbicides during his service in the Republic of Vietnam is conceded. The Board notes that the Veteran's claimed disabilities on appeal are not "radiogenic diseases" as defined by 38 C.F.R. § 3.311. However, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that a disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. Combee v Brown, 34 F.3d 1039 (Fed Cir 1994). In this case, the Board finds that the Veteran's duties as a photographer at a nuclear testing site in Mercury, Nevada, from November 27, 1967, to December 1, 1967, contains evidence of potential in-service exposure to ionizing radiation, although his claimed disabilities are not radiogenic diseases. As such, the RO should develop a radiation dose assessment, requesting such from the VA Under Secretary for Health, to the extent feasible, based on available methodologies. The RO should then request from the VA Under Secretary for Benefits an opinion as to whether any in-service ionizing radiation exposure caused or contributed to the claimed skin, stomach, muscle aches, and headaches disabilities. The Veteran also testified before the undersigned that his claimed shoulder disabilities are related to helicopter jumps in service. The Board notes that the Veteran has not been afforded a VA examination to address the etiology of his claimed shoulder disabilities; as such, he should be afforded an examination on remand. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Accordingly, based on the foregoing evidence of record, the Board finds that the Veteran's claims for service connection for skin, stomach, muscle aches, headaches, left and right shoulder disabilities must be remanded for evidentiary development as indicated below. The matters are REMANDED for the following action: 1. Develop a radiation dose assessment, requesting such from the VA Under Secretary for Health, to the extent feasible, based on available methodologies. Then, request from the VA Under Secretary for Benefits an opinion as to whether it is at least as likely as not that any in-service ionizing radiation exposure caused or contributed to the Veteran's claimed skin, stomach, muscle aches, and headaches disabilities. 2. If, and only if, a negative opinion is obtained from the VA Under Secretary for Benefits, afford the Veteran a VA examination by an appropriate examiner in order to determine the nature/etiology of any skin disabilities diagnosed during the pendency of this appeal. Access to the electronic claims file must be made available to and reviewed by the examiner, to include a copy of this remand, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. If possible, the examination should be scheduled during a flare-up of the Veteran's condition. The examining facility should be fully informed of the requirements in this case and communicate with the Veteran as necessary to maximize the likelihood of performing the examination during a flare-up of the claimed condition. Appropriate instructions should be provided to the Veteran in this regard. Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) with respect to any skin disabilities diagnosed during the pendency of this appeal, that the disability had its onset in service or is otherwise etiologically related to service, to specifically include the complaints outlined above and the conceded exposure to herbicides in service. A detailed rationale must be provided for any opinion expressed. 3. If, and only if, a negative opinion is obtained from the VA Under Secretary for Benefits, afford the Veteran VA examination(s) by appropriate examiner(s) in order to determine the nature/etiology of any stomach disability, muscle aches, and headaches diagnosed during the pendency of this appeal. Access to the electronic claims file must be made available to and reviewed by the examiner(s), to include a copy of this remand, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Based on review of the files, the examiner(s) should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) with respect to any stomach disability, muscle aches, and headaches diagnosed during the pendency of this appeal, that the disability had its onset in service or is otherwise etiologically related to service, to specifically include the complaints outlined above and the conceded exposure to herbicides in service. A detailed rationale must be provided for any opinion expressed. 4. Afford the Veteran a VA examination by an appropriate examiner in order to determine the nature/etiology of any left and right shoulder disabilities diagnosed during the pendency of this appeal. Access to the electronic claims file must be made available to and reviewed by the examiner, to include a copy of this remand, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) with respect to any left and right shoulder disabilities diagnosed during the pendency of this appeal, that the disability had its onset in service or is otherwise etiologically related to service, to specifically include the complaints outlined above, including jumping out of helicopters in service. A detailed rationale must be provided for any opinion expressed. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.