Citation Nr: 21006395 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-05 893 DATE: February 4, 2021 ORDER Entitlement to an effective date of October 7, 2002, for entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. New and material evidence having been received, the claim for entitlement to service connection for diabetes mellitus is reopened. REMANDED Entitlement to a disability rating in excess of 50 percent for PTSD is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide agent exposure, is remanded. Entitlement to service connection for cataracts, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for residuals of Agent Orange exposure is remanded. FINDINGS OF FACT 1. The Veteran filed an informal claim for service connection for anxiety attacks that was received on October 7, 2002, and not adjudicated until April 2010. The informal claim for anxiety attacks has been construed broadly as a claim for an acquired psychiatric disorder, including PTSD. 2. Service connection for diabetes mellitus was denied in a March 2009 rating decision, which became final. Evidence received since that decision relates to a previously unestablished element of the claim. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 7, 2002, but not earlier, for the grant of service connection for PTSD is met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.151, 3.155, 3.400. 2. The March 2009 rating decision denying service connection for diabetes mellitus is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1978 to October 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Previously, the Veteran’s claim to reopen a claim for service connection for diabetes, as well as his claims for TDIU and entitlement to service connection for cataracts and Agent Orange exposure, were previously before the Board in April 2019. At that time, the Board remanded those claims for additional development. The Board also noted that in that decision that the Veteran had filed a notice of disagreement with respect to the disability rating and effective date assigned for service connection for PTSD. As such, the Board instructed the RO to issue a statement of the case on these issues prior to issuing a supplemental statement of the case with respect to the other issues on appeal. Subsequently, the RO issued a statement of the case on the rating and effective date assigned for his PTSD in November 2019. Thereafter, the Veteran perfected an appeal of these issues to the Board. Additionally, the RO issued a supplemental statement of the case on the other issues on appeal in September 2020. The matters are now before the Board together. Earlier Effective Date In a May 2018 rating decision, the RO awarded service connection for PTSD with an effective date of September 9, 2008, which the RO stated was based on the date of the receipt of his claim for service connection. The Veteran has requested an earlier effective date but has not submitted argument with respect to a specific effective date. Generally, the effective date for the grant of service connection is either the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, it will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b). After review of the record, the Board finds that an effective date of October 7, 2002, is warranted for the grant of service connection for PTSD. This is the date of receipt of an informal claim for “anxiety attacks,” which was never adjudicated. Essentially, the RO told the Veteran that his earlier informal claim had been lost, but later acknowledged that it was found. See March 2009 Rating Decision (deferring adjudication of claims for PTSD and anxiety attacks); see also April 2010 Rating Decision (denying service connection for PTSD and anxiety attacks). The April 2010 rating decision was timely appealed and service connection was ultimately granted in the May 2018 rating decision referenced above. Although the Veteran did not specifically claim entitlement to service connection for PTSD in his October 2002 informal claim, the Board has broadly construed his statement to include an intent to file a claim for benefits for any acquired psychiatric disorder, including PTSD. As such, the Board finds that service connection is warranted as of the date of the October 7, 2002, informal claim. 38 C.F.R. § 3.155; see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, an effective date prior to October 7, 2002, is not warranted, as the Veteran was discharged from service more than a year following his initial informal claim, and the record does not indicate that he submitted any other formal or informal claim for service connection that was received prior October 7, 2002. New and Material Evidence Historically, the Veteran’s claim for diabetes was originally denied in a March 2009 rating decision, which found that the evidence of record did not establish a nexus between diabetes and his military service. The rating decision was not appealed, and no new and material evidence was received within one year. As such, the rating decision became final. Generally, a claim that has been denied by an unappealed decision may not thereafter be reopened. 38 U.S.C. § 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. “New” evidence means evidence not previously submitted to agency decisionmakers, and “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 of record at the time of the last 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, though not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Additional evidence received since the prior denial of the claim includes a November 2016 letter indicating that the Veteran could have been exposed to herbicide agents while serving in Okinawa, Japan, as well as Internet articles describing the military’s use of herbicide agents in Okinawa. This evidence is new, as it was not of record at the time of the prior denial. The evidence is also material, as it relates to the previously unestablished element of whether there is a nexus between his service and his diabetes. As new and material evidence has been received, the claim is reopened. However, as set forth below, additional development is necessary prior to adjudicating the claim on its merits. REASONS FOR REMAND 1. PTSD and TDIU At the outset, the Board notes that additional relevant evidence, including VA treatment records, was added to the record following the issuance of the November 2019 statement of the case with respect to the claim for an increased disability rating for PTSD. In correspondence dated December 20, 2020, the Board informed the Veteran and his representative that new evidence had been associated with the claims file in connection with the increased rating claim and asked whether he wanted to waive his right to have the RO review this evidence in the first instance. The letter also indicated that he had 45 days to respond to the Board’s letter, but if the Board did not receive a response within 45 days, it would assume he wished to have his appeal remanded for the RO to initially review the evidence. Although the 45-day period to respond to the Board’s correspondence has elapsed, the record does not contain a response from either the Veteran or his representative. As such, the matter must be remanded to the RO so that it can consider this claim in light of the additional evidence, in the first instance, and issue a supplemental statement of the case reflecting such consideration. Additionally, the Board has assigned an earlier effective date for entitlement to service connection for PTSD in this decision. On remand, the RO must effectuate this decision and assign a disability rating or ratings for the period beginning October 7, 2002, which could potentially impact his claim for an increased disability rating for PTSD from September 9, 2008. Remand is thus warranted for this reason as well. Last, the resolution of the Veteran’s claim for an increased rating for PTSD could potentially impact the resolution of his claim for entitlement to TDIU. As such, this issue must be remanded as well before the Board can adjudicate it on its merits. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that, where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). 2. Diabetes, cataracts, and Agent Orange exposure In its April 2019 decision, the Board remanded the Veteran’s remaining claims for additional development. More specifically, the Board noted that the Veteran had previously served in Korea and Japan and that he had claimed in November 2016 correspondence that he had been exposed to herbicide agents while stationed in Okinawa and Camp Fuji, Japan. At that point, however, the RO had not undertaken necessary steps to verify his exposure to herbicide agents. The Board thus stated that the Veteran’s claims for entitlement to service connection for diabetes, cataracts secondary to diabetes, and Agent Orange exposure should be remanded for additional development. To that end, the Board directed the RO to request his complete service records from an appropriate agency and to verify his exposure to herbicide agents, including requesting verification as to whether he had been exposed to herbicide agents or other toxic chemicals in Korea or Okinawa, Japan, during his period of service. The Board notes that the Veteran’s military personnel records confirm prior service in Korea. Additionally, his personnel records indicate that he was stationed in Japan in 1978 and 1979, as well as in 1983 and 1984. Following the April 2019 remand decision, the RO requested the Veteran’s complete military personnel records from the National Personnel Records Center and attempted to request verification of exposure to herbicide agent. More specifically, the RO contacted a representative from the Marine Corps History Division with details regarding the Veteran’s service at Camp Fuji, Japan, as well as his contentions that he had worked with petroleum and herbicide agents while stationed there. In response to this request, the Marine Corp History Division representative sent a command chronology of the Veteran’s division, the 3rd Battalion, 4th Marine Regiment, from between January and June 2012. The RO did not undertake any additional development. The Board finds that this development is insufficient. First, although the RO obtained a command chronology of the Veteran’s division from the Marine Corps History Division, this command chronology was for the period between January and June 2012. Stated differently, this command chronology is from nearly 30 years after the Veteran was last stationed in Japan and 20 years after he was discharged from service. Moreover, the request to the Marine Corps History Division concerned his exposure to herbicide agents or other chemicals at Camp Fuji, Japan, but not in Okinawa or in Korea. As such, the Board finds that there has not been substantial compliance with the Board’s remand directives, and additional remand is necessary to undertake this development. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, because the outcome of the claim for entitlement to service connection for diabetes is inextricably intertwined with the outcome of the claim for service connection for cataracts and Agent Orange exposure, entitlement to these claims is remanded as well. See Harris, 1 Vet. App. at 180. Accordingly, the matters are REMANDED for the following action: 1. Assign and effectuate the effective date of October 7, 2002, for entitlement to service connection for PTSD. 2. Take appropriate action to determine whether the Veteran was exposed to herbicide agents or other toxic chemicals while serving in Japan or Korea during the portion of his service between 1978 and 1984. Such action includes conducting further inquiry with the Joint Services Records Research Center and any other development deemed appropriate. All requests made and responses received should be in documented in the claims file; a summary of the findings should be provided in a memorandum and associated with the claims file. If such verification is not possible, it should be so certified for the record, along with a description of the extent of the verification attempted. 3. After obtaining appropriate authorization, obtain and associate with the claims file any outstanding VA treatment records and outstanding, relevant private treatment records. 4. After the above development has been completed, as well as any other necessary development raised by the record, readjudicate the Veteran’s claims. All evidence of record, including evidence added to the claims file after the issuance of the November 2019 statement of the case denying an increased rating for PTSD, must be considered. If the claims are not granted to the Veteran’s satisfaction, send him and his representative a supplemental statement of the case discussing this additional evidence and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, Associate 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.