Citation Nr: 21073495 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-46 486 DATE: December 8, 2021 ORDER As new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), the petition to reopen is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. Entitlement to service connection for lung cancer is remanded. Entitlement to service connection for tremors affecting the bilateral hands is remanded. FINDINGS OF FACT 1. A June 2007 rating decision denied entitlement to service connection for PTSD. The Veteran received notice of this decision and did not submit a notice of disagreement or file new and material evidence within one year of the notification of this decision. 2. The evidence received since the final June 2007 rating decision is new and material and relates to an unestablished fact necessary to substantiate the Veteran's claim seeking entitlement to service connection for an acquired psychiatric disability, to include PTSD. CONCLUSIONS OF LAW 1. The June 2007 rating decision denying the Veteran's claims of entitlement to service connection for PTSD is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.156, 19.21 (formerly 20.201), 19.52 (formerly 20.302), 20.1103. 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, has been received; the claim is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has verifiable service on active duty from November 1962 to November 1964. He has alleged a second period of active duty service from January 1965 to November 1972, which has not been verified by official military records. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In July 2020, the Veteran presented sworn testimony before the undersigned Veterans Law Judge at a Board virtual hearing. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. 1. Petition to reopen entitlement to service connection for an acquired psychiatric disability, to include PTSD, is granted. If a claim of entitlement to service connection has been previously denied and that decision became 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 (2018). 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. 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. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When the Veteran filed the claim giving rise to this appeal, he indicated that he was explicitly seeking entitlement to service connection for PTSD. However, the United States Court of Appeals for Veterans Claims (Court) has held that a claim for service connection for PTSD serves as "a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran's VA treatment records list the Veteran's mental health diagnosis as "PTSD and anxiety disorder," and the private disability benefits questionnaire (DBQ) completed in April 2018 listed the Veteran's mental health disability as "PTSD (chronic severe) [with] depressive features." Accordingly, the Veteran's claim of entitlement to service connection for PTSD has been broadened and recharacterized as entitlement to service connection for an acquired psychiatric disability, to include PTSD, to fully encompass all of the Veteran's mental health symptoms and diagnoses. By a June 2007 rating decision, the Veteran's claims seeking entitlement to service connection for PTSD was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Nothing further regarding the claims was received until September 2014. No new and material evidence or a notice of disagreement was received by VA within one year of the mailing of the June 2007 rating decision. See 38 C.F.R. §§ 3.156(b), 19.21 (formerly 20.201), 19.52 (formerly 20.302). As the Veteran did not appeal the decision, that rating decision became final. See 38 U.S.C. § 7105 (2018); 38 C.F.R. § 20.1103. Given the broadening of the claim, supra, the Board must assess whether the current claim is an attempt to reopen the previously disallowed claim of entitlement to service connection for PTSD versus a new claim. When claims of varying diagnoses and symptoms are involved, in considering whether the claim presented is one to reopen or is a new claim to be adjudicated on the merits, "the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim 'based upon distinctly diagnosed diseases or injuries' or whether it is evidence tending to substantiate an element of a previously adjudicated matter." Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008)). Here, the Veteran's submission of further evidence relating to a mental health condition did not introduce a new claim based on a distinctly diagnosed condition independent from the claim for PTSD previously denied by the RO in June 2007. To the contrary, the Veteran has continued to assert that he suffers from an acquired psychiatric disability, to include PTSD, manifested by the same exact symptomatology that gave rise to the previously disallowed claim. In this regard, the Board notes that the April 2018 private DBQ evaluator diagnosed the Veteran as suffering from PTSD with depressive features (major depressive disorder), and when questioned whether the Veteran experienced more than one diagnosed mental disorder, she clearly check marked "no," indicating that the diagnoses were indistinguishable and non-distinct. This fact supports the conclusion that the Veteran's current claim seeking service connection for an acquired psychiatric disability, to include PTSDhowever it is diagnosedis the same as the claim previously disallowed by the RO in the final June 2007 rating decision. In summary, the Board will treat the present claim as a petition to reopen a previously denied claim seeking entitlement to service connection for an acquired psychiatric disability, to include PTSD, as opposed to a new claim. The Board has considered application of 38 C.F.R. § 3.156(c) to this appeal, as the electronic claims file contains additional service department records that were in existence at the time of the June 2007 rating decision, but had not been associated with the Veteran's claims file until later. Additional service personnel records were associated with the Veteran's electronic claims file in May 2016 and November 2021. These service department records either contain duplicative or redundant information that was already received into evidence and considered at the time of the June 2007 rating decision, or are irrelevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. Moreover, the Veteran's attorney has not identified any evidence that would warrant reconsideration under 38 C.F.R. § 3.156(c). Thus, the claim shall not be reconsidered under 38 C.F.R. § 3.156(c), and the Board shall continue its new and material evidence analysis in accordance with 38 C.F.R. § 3.156(a). In the June 2007 rating decision, the Veteran was denied entitlement to service connection for PTSD due to a lack of credible supporting evidence that the Veteran's claimed in-service stressor actually occurred. Since the June 2007 rating decision, the Veteran has alleged for the first time that he served in a second period of active duty service from January 1965 to November 1972, where he purportedly served in combat in the Republic of Vietnam. This contention served as the basis for the private April 2018 DBQ medical opinion which favorably linked the Veteran's acquired psychiatric disability, to include PTSD, to his claimed in-service traumatic experiences. This evidence is new, as it was not previously available (and thereby considered) in the prior final rating decision, and it is material, as it pertains to the unestablished fact of whether the Veteran experienced an in-service event, disease, or injury. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence, and the claim is reopened. Shade, 24 Vet. App. at 117-118. The Board has determined that the claim should be reopened pursuant to 38 C.F.R. § 3.156(a); however, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REASONS FOR REMAND section below. REASONS FOR REMAND Although the Board regrets the additional delay, the below referenced claims are remanded to the RO for additional evidentiary development or to ensure due process is followed and there is a complete record upon which to decide the Veteran's appeals. At the July 2020 Board hearing, the Veteran alleged he was receiving Social Security benefits, but did not specify whether he was receiving regular retirement benefits or disability retirement benefits. However, the Veteran is about to turn 78 years old, and it is the policy of the Social Security Administration to destroy medical records that may be associated with a disability claim within 7 years of the applicant reaching the regular retirement age of 65. See 68 Fed. Reg. 71210 (December 22, 2003). Thus, as the Veteran reached Social Security's regular retirement age more than 7 years ago, it is futile to request any Social Security medical records, as they no longer exist pursuant to the Social Security Administration's records retention policy. Neither the Veteran nor his attorney have alleged that any relevant private treatment records remain outstanding, and thus, no evidentiary development is warranted in this regard. 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. The Veteran seeks entitlement to service connection for an acquired psychiatric disability, to include PTSD, based on the allegation that this disability is the result of in-service traumas he witnessed during his alleged 14 month period of combat service in the Republic of Vietnam. He stated that he served as a tunnel rat in Vietnam, where he performed search and destroy missions in the underground tunnels of Vietnam. He indicated that he witnessed general traumas, such as fellow soldiers being skinned by the enemy with their genitals cut off and hung from their mouths, the sight of burned out eyes and human flesh/guts, enemy soldiers pinned to trees with bamboo sticks, and enemy soldiers holding decapitated heads. See e.g., October 2005 VA treatment records, April 2007 lay statement, April 2018 DBQ, May 2020 lay statement, July 2020 Board hearing testimony. Additionally, he recalled witnessing the death of his best friend, B.E., killed during a firefight with the enemy in the Republic of Vietnam. See e.g., March 2006 VA Form 21-0781. Unfortunately, the Veteran's claim has been denied due to a lack of evidence corroborating his claimed service in the Republic of Vietnam, to include his alleged in-service stressors and lay reports of combat. The Veteran's claim was previously denied because there was no evidence corroborating Republic of Vietnam service during his verified period of active duty from November 1962 to November 1964. However, more than 3 years following his petition to reopen the claim, the Veteran alleged for the first time that he served in the Republic of Vietnam during a second, previously unreported period of active duty service from January 1965 to November 1972. See April 2018 DBQ, July 2020 Board hearing testimony. At the July 2020 Board hearing, the Veteran testified that he recently discovered a second DD Form 214 confirming his second period of claimed active duty service and verifying his claimed service in the Republic of Vietnam. However, neither the Veteran nor his attorney have submitted this DD Form 214 for evidentiary consideration. Instead, they have submitted a February 2020 lay statement from Veteran, K.S., alleging that he served alongside the Veteran in the Republic of Vietnam in the 57th artillery unit. In this statement, K.S. did not identify the dates that he and the Veteran served in the Republic of Vietnam or otherwise corroborate the Veteran's claimed in-service stressors or reports of combat service. As such, the Board finds that the claim should be remanded for the RO to contact the Veteran and request a copy of the DD Form 214 referenced by the Veteran at the July 2020 Board hearing. The RO shall also be requested to undertake additional efforts to verify the Veteran's claimed period of active duty service from January 1965 to November 1972, to include the procurement of the Veteran's service treatment and personnel records from this time period. This evidence is needed to verify the Veteran's reports of experiencing combat during his claimed Republic of Vietnam service. The RO is cautioned that the Veteran testified at his July 2020 Board hearing that these service department records may be under a different service number than the one identified in the DD Form 214 for his November 1962 to November 1964 period of active duty service. Additional evidentiary development is also warranted in an attempt to corroborate the Veteran's assertions that he witnessed the death of his best friend, B.E., during his claimed Republic of Vietnam service. The Veteran has provided varying dates as to when this death occurred. Initially, the Veteran alleged he and B.E. were members of the 174th 60 Artillery battalion assigned to the 13A 10 artillery unit, and B.E. died on May 10, 1969. In April 2007, the RO attempted to corroborate this allegation using the Personnel Information Exchange System (PIES), but the PIES request was rejected because the unit organization provided by the Veteran was incorrect and could not be identified. See May 2007 PIES response. The RO further stated that searches for B.E. on the Master List of all military casualties from 1950 to 2002 and the Virtual Vietnam Memorial were negative. The Veteran has provided additional information regarding the death of B.E. that requires further evidentiary development in an attempt to corroborate the Veteran's claimed stressor. In an April 2007 VA Form 21-0781, Statement in Support of Claims for Service Connection for PTSD, the Veteran alleged that B.E. may have died on July 10, 1971more than a year following his previous recollection. The writing on the form is difficult to interpret, but it appears that the Veteran indicated that B.E. served as a member of the 174th 60 Artillery battalion assigned to the 13A 10 artillery unit. The Board notes that this unit assignment is the same as the one previously determined to be unidentifiable in the April 2007 PIES response. In May 2016, the Veteran stated that B.E. died on June 9, 1971 and served with the "7 Artillery 7 Army" unit at the time of his death. In a May 2020 lay statement, the Veteran alleged that he served in the C Battery of the 60th Artillery division. He previously alleged that B.E. served in his same unit. Further complicating the matter is the lay statement of K.S. who alleged that the Veteran served with him in the 57th Artillery division. Upon remand, the RO is requested to contact the Veteran for a final attempt to clarify with specificity as to which unit/location he and B.E. served with/in at the time of B.E.'s death. If this information is provided and allows for a meaningful search of appropriate record repositories, the RO is requested to undertake further efforts to verify whether the Veteran was in the same military unit at the time of the claimed death of B.E. 2. Entitlement to service connection for lung cancer is remanded. The Veteran seeks entitlement to service connection for lung cancer, which he claims developed as a result of alleged in-service exposure to herbicide agents. The record confirms that the Veteran has been diagnosed with lung cancer and underwent a lobectomy in 2008 for malignant neoplasm of the lobe of the right lung. Under applicable law, a veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide agent exposure, to include respiratory cancers such as cancer of the lung. 38 C.F.R. § 3.309(e). Presently, the record does not confirm the Veteran's allegation of serving in the Republic of Vietnam, yet alone during the time period eligible for the presumptive service connection provisions set forth above. As such, this claim is remanded for the same evidentiary development identified supra regarding verification of the Veteran's claimed service in the Republic of Vietnam between January 1965 and November 1972, to include exposure to herbicide agents. 3. Entitlement to service connection for tremors affecting the bilateral hands is remanded. The Veteran asserts that his current diagnosis of tremors affecting the bilateral hands is secondary to his yet-to-be service-connected acquired psychiatric disability, to include PTSD. See July 2020 Board hearing testimony. The record also reasonably raises the possibility that this disability may be presumptively related to in-service herbicide agent exposure, only if the Veteran's claimed Republic of Vietnam service can be verified. The record shows that the Veteran's tremor has been variably diagnosed as an "essential tremor" or a "familial tremor." See May 2010 and December 2015 VA treatment records. Essential or familial tremor is not one of the explicitly listed enumerated conditions found in 38 C.F.R. § 3.309(e) as presumptively caused by in-service herbicide agent exposure. However, effective January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 added Parkinsonism to 38 U.S.C. § 1116(a)(2) as a condition presumed to be caused by in-service herbicide agent exposure. The regulations have not been updated yet to reflect this change in the statutory law. This claim is remanded for the same evidentiary development identified supra regarding verification of the Veteran's claimed service in the Republic of Vietnam between January 1965 and November 1972, to include his allegations of combat service and herbicide agent exposure. ONLY IF such service is verified shall the RO forward this claim for a VA medical opinion addressing whether the Veteran's tremor disorder constitutes Parkinsonism for the purposes of applying the presumptive service connection principles under 38 U.S.C. § 1116 and/or whether the Veteran's tremor disorder is proximately due to, the result of, or aggravated by the Veteran's acquired psychiatric disability, to include PTSD, and any medication used to treat the Veteran's mental health disability. If it is determined that the Veteran's essential tremor does not qualify as Parkinsonism, the Veteran may still achieve service connection with evidence showing that any in-service herbicide agent exposure directly caused his essential tremors. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Lastly, the RO is requested to obtain any outstanding VA treatment records from November 2019 to present and associate them with the Veteran's electronic claims file. 38 C.F.R. § 3.159(c)(2) and (3). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 2019 to the present. 2. Contact the Veteran and request that: (a.) He submit a copy of the DD Form 214 referenced at his July 2020 Board hearing regarding his alleged second period of active duty service from January 1965 to November 1972; and (b.) He verify with specificity which unit/location he and B.E. served with/in at the time of B.E.'s death. 3. Obtain the Veteran's complete service personnel and treatment records from his claimed second period of active duty service from January 1965 to November 1972. The RO is cautioned that the Veteran testified at his July 2020 Board hearing that these service department records may be under a different service number than the one identified in the DD Form 214 for his November 1962 to November 1964 period of active duty service. 4. If the Veteran can provide meaningful information regarding the unit/location he and B.E. served with/in at the time of B.E.'s death, undertake appropriate efforts, to include a request to VA's Military Records Research Center, in an attempt to verify the Veteran's claims of witnessing B.E.'s death on May 10, 1969, June 9, 1971, or July 10, 1971. 5. ONLY IF the Veteran's claims of combat service and herbicide agent exposure in the Republic of Vietnam at some point between January 1965 and November 1972 are verified, then forward the claims file to an appropriate VA examiner for a VA medical opinion addressing the etiology of the Veteran's tremor disability. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's essential tremor affecting his bilateral hands qualifies as Parkinsonism for the purposes of applying the presumptive service connection provisions? Why or why not? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's essential tremor affecting his bilateral hands is etiologically related to his active duty service, to include his in-service exposure to herbicide agents (regardless of the presumptive service connection provisions)? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's essential tremor affecting his bilateral hands is proximately due to, the result of, or aggravated (i.e., underwent any incremental increase in disability, regardless of its permanence) by the Veteran's acquired psychiatric disability, to include PTSD, and/or any medication used to treat the Veteran's mental health disability? The RO is requested to ensure that all medical opinions are supported by a complete explanatory rationale based on the VA examiner's medical expertise; the VA examiner's clinical experience; current medical principles; and citations to the record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.