Citation Nr: 21008240 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 20-17 530 DATE: February 12, 2021 ORDER New and material evidence not having been received, the claim to reopen service connection for Graves’ disease is denied. New and material evidence not having been received, the claim to reopen service connection for chronic obstructive pulmonary disease (COPD) is denied. New and material evidence having been received, the claim to reopen service connection for a psychiatric disorder/post-traumatic stress disorder (PTSD) is granted. REMANDED The claim for service connection for a psychiatric disorder/ PTSD is remanded. The claim to reopen service connection for coronary artery disease with pacemaker (claimed as heart condition) is remanded. FINDINGS OF FACT 1. The respiratory disability, psychiatric disability/PTSD service connection claims were previously denied in prior final decisions dated in December 2006, April 2007, July 2012 and July 2015. 2. The Graves’ disease service connection claim was previously denied in a July 2015 rating decision. 3. Evidence received since July 2015, is cumulative of evidence of record regarding the Graves’ disease service connection claim, and the claim for service connection for COPD. 4. Evidence received since July 2015, tends to support the occurrence of a claimed in-service stressor. CONCLUSIONS OF LAW 1. New and material evidence has not been presented to reopen the claim of entitlement to service connection for Graves’ disease. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 2. New and material evidence has not been presented to reopen the claim of entitlement to service connection for chronic obstructive pulmonary disease. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. New and material evidence has been presented to reopen the claim of entitlement to service connection for psychiatric disability/PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1961 thru February 1963. The respiratory disability, psychiatric disability/PTSD service connection claims were previously denied in decisions dated in December 2006, April 2007, July 2012 and July 2015. The psychiatric disability claim was originally denied because the evidence did not show a nexus between current disability and service. The PTSD component of this claim was denied because of the inability to verify the claimed in-service stressor. The respiratory disability claim was originally denied owing to a lack of evidence showing a nexus between current disability and service. The Graves’ disease service connection claim was previously denied in a July 2015 rating decision. The evidence did not show a link between the post service evidence of the disability and service. Service connection for CAD was previously denied in July 2012 and July 2015 decisions. This was originally denied because the evidence did not show a nexus with service, nor was it shown to a compensable degree within the first year of service. The current appeal arises from a July 2017 decision that determined new and material evidence had not been submitted to reopen these claims for benefits. The Veteran presented testimony at a Board Virtual Hearing in September 2020 before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran’s claims folder. The Board notes that the claims file reflects VA’s attempts to obtain the Veteran’s service treatment records to no avail. New and Material Evidence Generally, a claim that has been denied in a final RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U. S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). Graves’ disease The Veteran contends that his Graves’ disease began in or was caused by service. VA treatment records note his Graves’ disease and indicate that the Veteran underwent a thyroidectomy in the early 1970s. However, there was no probative evidence to show this condition is related in any way to his military service or that it manifested to a compensable degree within the applicable presumptive time period of one year. The Veteran has submitted no new and material evidence to demonstrate the onset of his Graves’ disease during service. The Veteran, through his representative, contends that the Veteran’s Graves’ disease is potentially secondary to a psychological condition. However, as they are not shown to possess the medical expertise to draw that association, this is not material evidence. Without the submission of new and material evidence the claim is not reopened, and the appeal in this regard is denied. Chronic obstructive pulmonary disease (COPD) (claimed as lung condition) The treatment records and examination reports added to the record since this claim was previously denied, continues to show the Veteran has the disability, but the evidence fails to show a nexus with service, including to any asbestos as may have been present aboard the ship on which the veteran served. As there is no new material evidence, the claim to reopen service connection for the Veteran’s lung condition is denied. Psychiatric disorder/PTSD As indicated above, the psychiatric disability claim was originally denied because the evidence did not show a nexus between current disability and service. The PTSD component of this claim was denied because of the inability to verify the claimed in-service stressors. One of the claimed stressors concerned a collision with another ship. In October 2020, the Veteran provided anecdotal evidence by means of a newsletter which included accounts by other Veterans of the collision of the USS Yancey, with the Veteran’s ship, the USS Algol, which was indicated to have occurred when the Veteran would have been aboard the Algol. Although the account of this collision did not appear to have been of much significance to the person mentioning it, that account tends to confirm the Veteran’s stressor. This evidence being new and material, the claim is reopened. REASONS FOR REMAND Psychiatric disorder/PTSD The record reflects the Veteran has psychiatric diagnoses, which have been characterized as related to service, but the reasons for that relationship are either unstated, include details that do not agree with other evidence of record, or are otherwise unverified, as for example the Veteran’s involvement with the Bay of Pigs invasion and his presence at an accident where another sailor was decapitated. In addition, a 2017 private opinion appears to hold the Veteran’s psychiatric symptoms began in service, although the basis for that finding was not clearly expressed. Nevertheless, the records that are available reflect the Veteran had what might be termed behavioral problems during service, as evidenced by a number of non-judicial punishments he was given. In addition, it appears he was discharged from the service when he was a patient at a Naval Hospital to which he had been transferred shortly after punishment for insubordination. Post service, records from a hospitalization for migraines in 1972, reveal a psychiatric referral took place, and although this did not appear to reveal a psychiatric diagnosis, it indicates behaviors that were considered suggestive of psychiatric illness. Thus, regardless of the medical opinions, the record in this case at least hints that a psychiatric illness may have had its onset in service. A medical opinion that fully addresses the Veteran’s record should be obtained. With respect to the diagnosis of PTSD, since the Veteran has mentioned additional stressors which have not yet been investigated, further development in that regard should take place. Coronary artery disease The Veteran’s treatment records reflect the presence of coronary artery disease, and in October 2020, the Veteran submitted a study regarding the association of PTSD and coronary heart disease, as well as a study regarding the association of depression with heart disease. In one, it appears the incidence of coronary heart disease was more than double in those with PTSD, than those without PTSD. Another article discusses an association between depression and heart disease. Since the PTSD/ psychiatric disorder service connection claim is being remanded, a decision on the CAD claim is deferred pending the outcome of the psychiatric disorder/PTSD claim. The matters are REMANDED for the following actions: 1. The appropriate entity should be contacted to ascertain the following: a.) whether a crewmember of the USS Algol was killed/decapitated during cargo transfer operations when the Veteran served aboard the ship (approx. November 1961 – February 1963); b.) the nature/meaning of an authority of discharge that reads, “BuMed Inst.1910.2C and BuPers. Manual Article C-10310 – 464” as reflected on the Veteran’s DD Form 214, and whether that references any behavioral characteristics or medical conclusions. 2. Schedule the Veteran for a VA psychiatric examination with an appropriate clinician to determine the nature and etiology of the Veteran’s psychiatric condition. The claims folder should be made available to the examiner for review prior to the examination. All indicated tests and studies should be performed. The examiner should enter all appropriate diagnoses, and for those other than PTSD, provide an opinion as to whether it is at least as likely as not the non-PTSD diagnoses had there onset in service, or are otherwise related to an in-service disease or injury. The opinion should be fully explained with reference to the Veteran’s reported history, the medical history depicted in his records, as well as the available service personnel records. If PTSD is diagnosed, the stressor on which that is based should be clearly identified. 3. If service connection for a psychiatric disability is granted, a medical opinion should be obtained that addresses whether the Veteran’s heart disease was caused by his psychiatric illness; and if not caused by his psychiatric illness, the opinion should address whether the psychiatric illness aggravated the Veteran’s heart disease. 4. Readjudication should follow the completed development of any remaining issue on appeal. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Christian, Associate Attorney 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.