Citation Nr: 21072357 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-54 088 DATE: December 2, 2021 ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for post-traumatic stress disorder (PTSD). To that extent only, the claim is granted Entitlement to service connection for diabetes mellitus type II is granted. Entitlement to service connection for post-traumatic stress disorder, also claimed as major depression disease, memory loss, and anxiety disorder, is denied. REMANDED Entitlement to a rating in excess of 30 percent for ischemic heart disease is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. New and material evidence has been received that relates to unestablished facts that are necessary to substantiate the claim for entitlement to service connection for PTSD. 2. The Veteran's diabetes mellitus type II is related to his military service. 3. The Veteran's symptoms do not meet the criteria for a psychiatric disorder. CONCLUSIONS OF LAW 1. New and material evidence has been submitted to reopen the Veteran's claim for entitlement to service connection for PTSD. 38 U.S.C. §§ 1110, 5107(b), 5108; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for entitlement to service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for post-traumatic stress disorder (PTSD), also claimed as major depression disease, memory loss, anxiety disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f), 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968 and from October 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA). The Veteran recently testified at a Board hearing in August 2021. The transcript of that hearing has been associated with the Veteran's claims file. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for PTSD. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted. 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. 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. The threshold to reopen a claim is low and does not require new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran filed an original claim for service connection for PTSD with insomnia in September 2010 that was denied in a December 2011 rating decision. The Veteran did not appeal or submit additional evidence within the appeal period and, accordingly, the December 2011 decision became final. In October 2016, the Veteran filed an application for entitlement to service connection for PTSD, nightmares, flashbacks, major depression disease, memory loss, and an anxiety disorder. New evidence submitted since the final December 2011 decision includes testimony from the Veteran and a private medical opinion. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that this evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, is presumed credible, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim for entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. To this limited extent only, the petition to reopen the claim is granted. Service Connection 2. Entitlement to service connection for diabetes mellitus type II The Veteran contends that his disabilities are related to his military service. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(c). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to a current diagnosis, the Board notes that the Veteran has received a diagnosis of diabetes mellitus type II. As to the in-service incurrence, the Board notes that the Veteran's personnel records show that he served in the Republic of Vietnam and is presumed to have been exposed to herbicides. Turning to the medical evidence at hand, the Board notes that the Veteran's diagnosis was confirmed at a November 2017 VA examination and a September 2021 private medical examination. The Board further notes that the Veteran's VA treatment records show that the Veteran has been diagnosed with diabetes mellitus type II. In sum, the Board finds that service connection for diabetes mellitus type II is warranted. After a review of the record, the Board finds that the evidence of record has established that the Veteran served in the Republic of Vietnam and he has been diagnosed with diabetes mellitus type II. Thus, based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is presumptively warranted for the Veteran's diabetes mellitus type II. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD) including insomnia (also claimed as major depression disease, memory loss, anxiety disorder) Initially, the Board notes that the threshold question that must be addressed is whether the Veteran actually has a diagnosis of the disability for which service connection is sought, specifically a psychiatric disability. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As to a current diagnosis, the Board notes that the Veteran's symptoms do not meet the criteria for a psychiatric disorder. As to the in-service incurrence, the Board notes that the Veteran's service treatment records are silent for any treatment or a diagnosis for a psychiatric disorder. As to the Veteran's lay statements, the Board notes that the Veteran testified that he is forgetful and that he feels stressed. He also stated that he does not receive any treatment for a psychiatric disorder. In September 2016, the Board acknowledges that the Veteran submitted an opinion from a private doctor. The private examiner indicated that he reviewed the Veteran's service treatment records and the Veteran's VA treatment records. The private doctor indicated that the Veteran was in "comprehensive psychiatric and psychological treatment." The private doctor provided a diagnosis of posttraumatic stress disorder, major depressive disease, a memory disorder, and general anxiety disorder. The private doctor indicated that the Veteran exhibited all of the symptoms related to PTSD and that his psychiatric disability was related to his military service. In February 2017, the Veteran attended a VA examination. Following the examination, the examiner found that the Veteran did not meet the diagnostic criteria for a psychiatric disorder. The VA examiner addressed the medical opinion submitted by the Veteran. The VA examiner stated that the medical data review from Dr. M cannot be considered evidence of the Veteran's mental condition. The examiner stated that Dr. M "bills himself as an internal medicine specialist and therefore is not qualified to diagnose or treat mental disorders." The examiner stated that the Veteran has never been diagnosed with a mental disorder nor has he been in any mental health treatment. The examiner indicated that there is "no medical data to review." The examiner stated that Dr. M provides a diagnosis for all of the Veterans who go to him of "generalized anxiety disorder, major depressive disease and PTSD." Unfortunately, the Board is unable to place any probative weight on the Veteran's private opinion for several reasons. First, the opinion is not based on an accurate set of facts. Specifically, the doctor stated that the Veteran was in psychiatric treatment, but the Veteran has never received any treatment for a psychiatric disorder. In addition, the private doctor is not a mental health professional and there is no showing that he is otherwise qualified to provide a psychiatric diagnosis. Moreover, the private doctor did not provide a thorough and well-reasoned opinion as to what aspects of the Veteran's military service caused him to develop an acquired psychiatric disorder and simply stating that "the Veteran's psychiatric disorders are secondary to his military service," is too conclusory and not sufficient to demonstrate the basis for the diagnosis. Lastly, the Board notes that the February 2017 VA examiner addressed this letter and found that the doctor was not reliable or a credible historian. Thus, for the above stated reasons, the Board is unable to place any probative value on the Veteran's private doctor's opinion. The Board has also reviewed the Veteran's VA treatment records. The Board notes that the Veteran's records are silent for any treatment or a diagnosis for a psychiatric disorder. In sum, the Board finds that entitlement to service connection for a psychiatric disability is not warranted. After a review of the record, the Board finds that the record is silent for a diagnosis of a current disability throughout the pendency of the appeal. Specifically, the Board notes that the most probative evidence of record was the Veteran's February 2017 VA examination, which did not show evidence of a current psychiatric disability. Accordingly, the Board notes that in the absence of proof of a present disability, there can be no valid claim. As the medical evidence of record does not show that the Veteran has a current disability, the Board finds that the preponderance of the evidence is against the claim for service connection for post-traumatic stress disorder also claimed as major depression disease, memory loss, and anxiety disorder. Therefore, service connection for this disability is not warranted and the claim must unfortunately be denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for ischemic heart disease is remanded. In May 2019, the Veteran attended an additional VA examination for this disability; however, a Supplemental Statement of the Case (SSOC) has not yet been issued. The Board notes that an SSOC must be furnished to the Veteran when additional pertinent evidence is received after a previous Statement of the Case (SOC) or SSOC has been issued. 38 C.F.R. § 19.31. Since the additional evidence in question is neither duplicative of other evidence nor irrelevant, and since an SSOC pertaining to that evidence was not issued, this evidence must be referred back to the AOJ. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304. 2. TDIU is remanded. The Board acknowledges that the Veteran's claim for an increased rating includes a claim for TDIU when it is expressly raised by the Veteran or reasonably raised by the record. After a review of the record, the Board finds that the claim for TDIU has been raised by the record. Thus, the Board finds that the issue of entitlement to TDIU has been raised by the record and is part and parcel to the Veteran's increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447. Thus, this issue must be remanded for further development and then adjudication by the RO. The matters are REMANDED for the following action: 1. Take all steps necessary to properly adjudicate the Veteran's claim for TDIU. 2. Readjudicate the remaining issues on appeal based on all evidence received since the October 2018 SOC. Thereafter, if any benefit remains denied, issue the Veteran and his representative a supplemental statement of the case, provide an appropriate time for response, and then return the case to the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.