Citation Nr: 21007357 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-15 181A DATE: February 9, 2021 ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for hypertension is granted. Service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder and schizophrenia with cannibis use disorder, is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected acquired psychiatric disorders and renal tuberculosis, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. In a final rating decision issued in June 2011, Agency of Original Jurisdiction (AOJ) denied service connection for PTSD and hypertension. 2. Evidence added to the record since the final June 2011 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for PTSD. 3. Evidence added to the record since the final June 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for hypertension. 4. In a final rating decision issued in January 2003, the AOJ confirmed and continued the prior denial of service connection for a nervous disorder, characterized as schizophrenia and anxiety disorder. 5. Evidence added to the record since the final January 2003 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. 6. Resolving all doubt in the Veteran’s favor, his anxiety disorder was caused by his in-service stressors; his schizophrenia was aggravated by his anxiety disorder; and he was self-medicating such acquired psychiatric disorders with cannibis. CONCLUSIONS OF LAW 1. The June 2011 rating decision that denied service connection for PTSD and hypertension is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) 3. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The January 2003 rating decision that confirmed and continued the prior denial of service connection for a nervous disorder, characterized as schizophrenia and anxiety disorder, is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2003). 5. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. The criteria for service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder and schizophrenia with cannibis disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to September 1968, to include service in the Republic of Vietnam (RVN) from October 13, 1966 to October 9, 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the case and it now returns for appellate review. The Board notes that, numerous VA treatment records required translation from Spanish to English which occurred subsequent to the issuance of the September 2020 supplemental statement of the case; however, as such are irrelevant to the claims on appeal, no prejudice results to the Veteran in the Board proceeding with a decision at the present time. 38 C.F.R. § 20.1304(c). Applications to Reopen Previously Denied Claims Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for PTSD. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. By way of background, the AOJ denied the Veteran’s original claim for service connection for a nervous disorder, characterized as schizophrenia, in June 1978; and in March 1997, the AOJ denied his original claim for service connection for PTSD. Thereafter, in September 2002, the AOJ again denied the Veteran’s service connection claim for schizophrenia on the merits; and in January 2003 (the most recent prior final denial), the AOJ confirmed and continued the prior denial of such claim. In this regard, the AOJ noted that service connection for schizophrenia had previously been denied as such was not incurred in or aggravated by service, or had manifested to a compensable degree within one year following the Veteran’s discharge from service. Here, the AOJ found that the newly received treatment records did not show that the Veteran’s schizophrenia was related to his service-connected renal tuberculosis; or that his now diagnosed anxiety disorder was incurred or aggravated by service, or related to his renal tuberculosis. Consequently, the AOJ denied service connection for a nervous disorder. The Veteran filed a notice of disagreement in February 2003, and the AOJ issued a statement of the case in May 2003. However, the Veteran did not file a timely substantive appeal. Furthermore, no new and material evidence was physically or constructively received within the remainder of the appeal period, and no relevant service department records have since been received. Therefore, the January 2003 rating decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2003). Thereafter, in July 2010, the Veteran filed an application to reopen his claim for service connection for PTSD. In a June 2011 rating decision (the most recent prior final denial), the AOJ denied his claim for service connection on the merits. In this regard, the AOJ considered newly received treatment records and a May 2011 VA examination report. However, the AOJ noted that the May 2011 VA examiner determined that the Veteran did not have a diagnosis of PTSD; and that the Veteran’s service treatment records were silent for complaints for or a diagnosis of PTSD. The AOJ further noted that the Veteran’s treatment records similarly did not show a diagnosis of or treatment for PTSD; and that no evidence had been received which showed a relationship between such disorder and his military service. Consequently, the AOJ denied service connection for PTSD. Later the same month, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. Rather, he filed an application to reopen such claim in March 2016. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. In this regard, while a May 2007 VA treatment record was received within a year of the June 2011 rating decision, and such includes a positive PTSD screen (albeit a subsequent February 2008 PTSD screen was negative), the Board finds that such positive PTSD screen is not a diagnosis of PTSD or sufficient evidence of a PTSD disability to reopen the claim as a subsequent PTSD screen was negative and the May 2011 VA examiner (following a detailed examination) determined the Veteran did not have a diagnosis of such. Therefore, such decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). Evidence received since January 2003 and June 2011 rating decisions include additional VA and private treatment records, a July 2014 VA medical opinion, and the Veteran’s lay statements. In this regard, the Veteran offered further details regarding his in-service stressors in an October 2013 written statement. Specifically, he indicated that, while loading a truck with ammunition, he was hit with a forklift and knocked to the ground; that he believed he was going to be crushed and suffered nightmares since such time; and that he felt the accident was deliberate and someone was trying to kill him. He further indicated that he worked most of his tour on guard duty at the perimeter of the ammunition dump while stationed at Cam Ranh Bay, RVN; that he spent 12-hour shifts alone in the jungle; and that he was afraid that the enemy would try to infiltrate the perimeter of the base. Furthermore, while the July 2014 VA examiner found: (1) the Veteran’s diagnosed cannabis use disorder was not related to his military service, and (2) the Veteran did not have current diagnoses of PTSD or schizophrenia, in an August 2018 private treatment record, D.B-V., opined that: (1) the Veteran’s anxiety disorder was at least as likely as not due to his military service, (2) his schizophrenia was at least as likely as not aggravated by his anxiety disorder, and (3) it was at least as likely as not that the Veteran had been self-medicating his acquired psychiatric disorders with cannibis. As noted previously, the Veteran’s claim for service connection for a nervous disorder, characterized as schizophrenia and anxiety disorder, was previously denied on the basis that the evidence did not show a relationship between a current disorder and his military service, or his service-connected renal tuberculosis. Consequently, as the newly received evidence includes the Veteran’s statements addressing his in-service stressors as well as a medical opinion relating (1) his anxiety disorder to his military service, (2) his schizophrenia to his anxiety disorder, and (3) his cannibis use disorder to both his anxiety disorder and schizophrenia, the Board finds that the evidence received since the January 2003 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. Accordingly, new and material evidence has been received and such claim is reopened. However, with respect to the Veteran’s PTSD claim, while his VA treatment records continue to show assessments of PTSD, such fail to address the specific criteria for a diagnosis of such disorder. In this regard, VA treatment records dated in July 2013 reflect a positive PTSD screen; however, notably VA treatment records dated in November 2012 and February 2013 reflect a negative PTSD screen. Furthermore, a September 2013 VA treatment record (in reference to a suicide risk assessment) indicates that the Veteran’s history includes that he was diagnosed with PTSD; that he experienced intrusive memories, nightmares, and flashbacks of events that happened while he was guarding an ammunition dump in Vietnam; and that he attempted suicide 3 to 4 times in the past. Such treatment record further indicates, following a discussion of risk/protective factors, means reduction, family involvement, and safety actions, an impression of PTSD and adjust to life in South Dakota. An additional September 2013 VA treatment record notes that the Veteran was diagnosed with PTSD, anxiety, and depression. An August 2013 VA treatment record notes that the Veteran was referred for depression, anxiety and PTSD. However, such record further notes that the Veteran’s summary and formulation indicates that he was referred as a screen showed depression; that the physician could find no notes that indicated anything about recurrent thoughts, dreams, or hyperarousability; and that there was no mentioned of PTSD in the problem list until the Veteran gave such information himself. A July 2013 VA treatment record reveals an impression of PTSD, and that he was referred to psychiatry. Here, such treatment records do not contain a diagnosis of PTSD that has been specifically related to the Veteran’s stressor by a competent part, to include specifically noting all of the criteria have been satisfied. Instead, the records seem to reflect PTSD based on the Veteran’s own reports to treatment provides that he suffers from such a disorder. Consequently, such VA treatment records are duplicative of those previously considered in the June 2011 rating decision. Furthermore, the July 2014 VA examination report also failed to reflect a diagnosis of PTSD. Therefore, the Board finds that the evidence added to the record since the final June 2011 denial is cumulative or redundant of the evidence of record at he time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for PTSD. Consequently, new and material evidence has not been received and such claim is not reopened. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for hypertension. By way of background, in a June 2011 rating decision, the AOJ considered the Veteran’s service treatment records, VA treatment records, and lay statements, and an October 2010 VA examination report, and denied service connection for hypertension. In this regard, the AOJ noted that the evidence did not show that arterial hypertension was related to the Veteran’s service-connected renal tuberculosis, nor was there any evidence of such disorder during service. Here, the AOJ indicated that the October 2010 VA examiner provided a diagnosis of arterial hypertension, but found that the medical literature showed no relationship between renal tuberculosis and high blood pressure. The AOJ further indicated that the Veteran’s service treatment records were silent for abnormal blood pressure findings or a diagnosis of hypertension. Additionally, the AOJ stated that, while the Veteran’s VA treatment records showed a diagnosis of and treatment for hypertension, such records did not show a relationship between such disorder and his military service, or his renal tuberculosis. Later the same month, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. In this regard, while additional VA treatment records were received within a year of the June 2011 rating decision, such include only duplicative findings of those previously of record. Therefore, such decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). Evidence received since the June 2011 rating decision includes additional VA and private treatment records, the Veteran’s lay statements, and medical literature. As noted previously, the Veteran’s claim for hypertension was previously denied on the basis that the evidence did not show that such was related to his military service or his service-connected renal tuberculosis. However, in May 2020, the Veteran, through his representative, submitted medical literature which addresses the relationship between mental disorders and the subsequent onset of hypertension. Consequently, as the newly received evidence raises a new theory of entitlement, the Board finds that the evidence received since June 2011 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for hypertension. Accordingly, new and material evidence has been received and such claim is reopened. Service Connection 4. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that he has an acquired psychiatric disorder other than PTSD that is related to his military service and/or his service-connected renal tuberculosis. In this regard, the Board notes that the Veteran has current diagnoses of an anxiety disorder (April 2000 private psychiatric medical report), schizophrenia (April 1978/October 1996/September 2002/May 2011 VA examinations), and cannibis use disorder (July 2014 VA examination). At the time of the July 2014 VA examination, the examiner found that a diagnosis of PTSD was not supported by the record; however, in so finding, the examiner did note that the Veteran’s reported stressors (as described above) were valid for such a diagnosis. Further, the Veteran’s service personnel records confirm that he served in the RVN from October 13, 1966 to October 9, 1967; that his primary specialty was ammunition apprentice while assigned to the 33rd Ordinance Company; and that he participated in the Vietnam Counteroffensive Phase II. Thus, the remaining question is whether the Veteran has an acquired psychiatric disorder other than PTSD related to his military service and/or service-connected renal tuberculosis. In this regard, a private treatment record by D.B-V. was received in August 2018. Such reflects that she is a licensed social worker and that she reviewed the Veteran’s medical record, to include his lay statements. Specifically, D.B-V. indicated that, in his affidavit, the Veteran recounted an in-service traumatic event of being injured by a forklift, and that he believed the driver of the truck was trying to kill him. She further indicated that medical documentation in June 1975 reflected a diagnosis of anxiety with aggressive behaviors toward his wife; and that notes of aggression reoccurred throughout the Veteran’s medical records. Here, D.B-V. noted that in the DSM-V, the autonomic arousal caused by anxiety and fear could cause a “fight” response; and that, based on the review of medical documentation of record, the Veteran’s anxiety and his perceived fear were systemic, beginning with the incident he experienced in Vietnam with the forklift. She concluded that diagnoses of anxiety were present in the Veteran’s record; and that such disorder was at least as likely as not due to his military service. Here, D.B-V. stated that the Veteran experienced Vietnam in an era that was uncertain for military service members; that the Veteran described numerous situations in which he felt very afraid and at risk of being attacked; and that he experienced a traumatic event (forklift incident), which exacerbated the anxiety of being in Vietnam and later progressed in severity, as shown by the post-service records indicating aggression and violence. Furthermore, D.B-V. reported that, based on the Veteran’s medical documentation, his symptomatic behaviors met the criterion (A-D) for schizophrenia. Following a detailed discussion of the criterion, she concluded that the Veteran’s schizophrenia was at least as likely as not worsened by his anxiety, which was associated with his military service. Here, she indicated that medical literature demonstrated that comorbid anxiety disorder was present in 38.3 percent of subjects with schizophrenia spectrum disorders, and the presence and severity of symptoms of anxiety were associated with more severe clinical features. She further indicated that additional trauma compounded by dual diagnosis could amplify the symptomatic behaviors, exacerbating the symptoms of both diagnoses. Moreover, D.B-V. stated that the Veteran’s records showed use of cannibis, and medical professionals had diagnosed cannibis disorder. Here, she determined that it was more likely than not that the Veteran had been self-medicating his acquired psychiatric disorders with cannabis. D.B-V. indicated that self-medication with drugs amongst individuals with mood disorders conferred a substantial risk of developing incident drug dependence, and was associated with the persistence of comorbid mood and dug use disorders. She noted that the Veteran’s VA examiners did not comment on the self-medicating aspect of the Veteran’s cannibis use or the interrelationship between the two. Based on the foregoing, and resolving all doubt in the Veteran’s favor, the Board finds that: (1) his currently diagnosed anxiety disorder had its onset in service; (2) such anxiety disorder aggravated his currently diagnosed schizophrenia; and (3) he had been self-medicating such acquired psychiatric disorders with cannibis. In this regard, the Board finds the August 2018 private opinion by D.B-V. highly probative as it considers all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, she offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)(“[A]medical opinion…must support its conclusion with an analysis that the Board can consider and weight against contrary opinions”). Accordingly, service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder and schizophrenia with cannibis use disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 5. Entitlement to service connection for hypertension, claimed as secondary to service-connected acquired psychiatric disorders and renal tuberculosis. 6. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected acquired psychiatric disorders. The Veteran originally contended that his hypertension was caused or aggravated by his service-connected renal tuberculosis; and his erectile dysfunction was related to his military service. However, he now maintains that such disorders are caused or aggravated by his now service-connected acquired psychiatric disorders. As previously noted, in May 2020, the Veteran, through his representative, submitted medical literature which addresses the relationship between mental disorders and the subsequent onset of hypertension. He also submitted medical literature which addresses the relationship between psychiatric disorders and sexual dysfunction. In this regard, VA treatment records dated since approximately 2005 reflect diagnoses of erectile dysfunction. Additionally, an October 2010 VA genitourinary examination report reflects the examiner’s notation that erectile dysfunction was present. Further, at an October 2010 VA hypertension examination, a diagnosis of arterial hypertension was noted. Consequently, the Board finds a remand is necessary in order to obtain addendum opinions addressing the potential relationship between the Veteran’s hypertension and erectile dysfunction, and his now service-connected acquired psychiatric disorders. The matters are REMANDED for the following action: Forward the record to an appropriate clinician in order to obtain addendum opinions addressing the nature and etiologies of the Veteran’s hypertension and erectile dysfunction. The record and a copy of this Remand must be made available to the examiner. The need for examinations of the Veteran is left to the discretion of the clinician selected to write the addendum opinions. Following a review of the record, the examiner should offer opinions as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s currently diagnosed hypertension and/or erectile dysfunction are caused or aggravated by his service-connected acquired psychiatric disorders (anxiety disorder and schizophrenia with cannibis disorder). For any aggravation found, the examiner should state, to the best of their ability, the baseline symptomatology by the aggravation. In offering such opinion, the examiner should consider the May 2020 medical literature submitted by the Veteran, through his representative, addressing the relationships between mental/psychiatric disorders and hypertension and sexual dysfunction. A rationale for any opinion offered should be provided. K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.