Citation Nr: 21010733 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-38 217 DATE: February 25, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for diabetes is granted. New and material evidence having been received, the petition to reopen the claim for service connection for multiple sclerosis is granted. New and material evidence having been received, the petition to reopen the claim for service connection for an acquired psychiatric condition (to include anxiety, depression and posttraumatic stress disorder (PTSD)) is granted. Service connection for diabetes mellitus, Type II (diabetes) is granted. Service connection for multiple sclerosis, to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition, to include anxiety, depression and PTSD is remanded. FINDINGS OF FACT 1. In a December 2013 rating decision, the Regional Office denied service connection for diabetes and multiple sclerosis. 2. Since the final December 2013 rating decision, new evidence has been associated with the claims file which raises a reasonable possibility of substantiating the Veteran’s claims for entitlement to service connection for diabetes and multiple sclerosis. 3. In an unappealed February 2015 rating decision, the Regional Office denied service connection for an acquired psychiatric disability to include, anxiety, depression, and PTSD. 4. Since the final February 2015 rating decision, new evidence has been associated with the claims file which raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for an acquired psychiatric disability to include, anxiety, depression and PTSD that is relevant to the issues of entitlement to service connection. 5. The Veteran was stationed at Korat Royal Thai Air Force Base (RTAFB) during the Vietnam era and served near the air base perimeter. 6. The Veteran’s diabetes is presumptively related to his in-service herbicide exposure. 7. The Veteran’s multiple sclerosis did not manifest in service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The December 2013 rating decision that denied the Veteran’s service connection claims for diabetes and multiple sclerosis is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The February 2015 rating decision that denied the Veteran’s service connection claims for anxiety, depression and PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 3. Since the December 2013 rating decision, new and material evidence has been received to reopen the service connection claims for diabetes and multiple sclerosis. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 4. Since the February 2015 rating decision, new and material evidence has been received to reopen the service connection claims anxiety, depression, and PTSD. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 5. The criteria for entitlement to service connection for diabetes have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 6. The criteria for service connection for multiple sclerosis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to February 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in December 2020. A transcript of the hearing has been associated with the claims file. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the proscribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Id. Diabetes The claim for service connection for diabetes was denied in July 2012 and December 2013 rating decisions. The Veteran was notified of the December 2013 rating decision and of his appeal rights in a December 2013 letter. In December 2014, the Veteran submitted a notice of disagreement (NOD) for the diabetes claim and received a statement of the case (SOC) in June 2015. The Veteran did not file a timely substantive appeal. The Veteran continued to receive treatment at a VA facility during the year following the December 2013 rating decision. In the June 2015 SOC, the RO considered this evidence and continued the denial of the claim. As a result, the December 2013 rating decision is final. In June 2016 the Veteran filed a new claim for diabetes. The evidence associated with the claim file after the December 2013 rating decision and June 2015 SOC includes the Veteran’s December 2020 hearing testimony and a statement from a fellow serviceman indicating that the Veteran had his boots on the ground in the Republic of Vietnam while on active duty. This evidence is new and material because it relates to an unestablished fact necessary to substantiate the claim, namely the existence of a relationship between the Veteran’s active duty service and his diagnosed disability. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. Multiple sclerosis The claim for service connection for multiple sclerosis was denied in a July 2012 rating decision. The Veteran did not appeal the July 2012 decision, but filed a new claim in June 2013 which was denied in a December 2013 rating decision. The Veteran was notified of the December 2013 rating decision and of his appeal rights in a December 2013 letter. The Veteran did not appeal nor was new evidence submitted within the one-year appeal period. To the extent the VA was in constructive possession of VA treatment records produced through the one-year appeal period, the RO considered this evidence and determined that it was not new and material in the October 2016 rating decision on appeal. As a result, the December 2013 rating decision is final. Lang v. Wilkie, 971 F.3d 1348 (2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). In June 2016 the Veteran filed a new claim for multiple sclerosis. The evidence associated with the claims file after the December 2013 rating decision and June 2015 SOC include the Veteran’s December 2020 hearing testimony and a statement from a fellow serviceman indicating that the Veteran had his boots on the ground in the Republic of Vietnam while on active duty. This evidence is new and material because it relates to an unestablished fact, namely that herbicide agent exposure has been established. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. Acquired psychiatric disability, to include anxiety, depression and PTSD The claims for service connection for anxiety, depression and PTSD were denied in a February 2015 rating decision. The Veteran was notified of the February 2015 rating decision and of his appeal rights in a March 2015 letter. The Veteran did not submit an appeal and no new evidence was associated with the Veteran’s file within a year. To the extent the VA was in constructive possession of VA treatment records from February 2015 to February 2016; in the October 2016 rating decision on appeal, the RO considered this evidence and determined that it was not new and material. As a result, the February 2015 rating decision is final. Lang v. Wilkie, 971 F.3d 1348 (2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). In June 2016 the Veteran filed a new claim for anxiety, depression and PTSD. The evidence associated with the claims file include the Veteran’s hearing testimony regarding his claimed in-service stressor. This evidence is new and material because it relates to an unestablished fact, namely establishing a potential relationship between his psychiatric disabilities and service. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who served on active duty in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to an herbicide agent during such service, absent affirmative evidence establishing that he was not. 38 C.F.R. § 3.307(a)(6), (d). If a veteran exposed to an herbicide agent pursuant to 38 C.F.R. § 3.307(a)(6) develops a disease delineated in 38 C.F.R. § 3.309(e), it shall be service connected on a presumptive basis even though there is no record of such disease during service. 38 C.F.R. § 3.309(e) provides an exhaustive list of the diseases that may be service connected on a presumptive basis. For service in Thailand during the Vietnam Era, there is no similar statutory or regulatory presumption of exposure to an herbicide agent during such service. Nonetheless, pursuant to VA policy, special consideration will be accorded, and exposure to herbicide agents will be acknowledged if the veteran served at the RTAFBs at U-Tapao, Ubon, Nakhom Phanom, Udorn, Takhli, Korat, or Don Muang; and served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the base perimeters. Service near a base perimeter may be shown by a veteran’s military occupational specialty (MOS), daily work duties, performance evaluations or other credible evidence. The Veteran’s service personnel records confirm that the Veteran was an aircraft mechanic and that he served at Korat RTAFB from September 1966 to September 1967. Additionally, the Veteran’s fellow serviceman submitted a statement that the Veteran deplaned at Tan Son Nhut Air Base in Saigon Vietnam before continuing to Thailand. See June 2016 R.S. Statement. Diabetes Treatment records show the Veteran has been diagnosed with diabetes. A current disability has therefore been demonstrated. With respect to an in-service incurrence, the Board finds the preponderance of the evidence demonstrates the Veteran was exposed to tactical herbicides. The Veteran has alleged that his occupational specialty as an aircraft mechanic required him to serve near the Korat base perimeter while stationed in Thailand and has submitted photographs in support of his claim. The Veteran also submitted a lay statement from a fellow servicemember who reported that he traveled to Thailand with the Veteran and that the flight took them from San Francisco to Alaska, the Philippines, and a lay over in Saigon, Vietnam where they deplaned. Based on this evidence the Board finds that he was exposed to tactical herbicide agents (Agent Orange) in service. As diabetes has been recognized as diseases associated with exposure to herbicide agents, the Board finds service connection for diabetes is warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309. Multiple sclerosis With respect to evidence of a current disability, the record shows the Veteran was diagnosed with multiple sclerosis. A current disability has therefore been demonstrated. With respect to an in-service incurrence or disease; the Veteran’s service treatment records do not demonstrate any diagnosis or treatment for multiple sclerosis. Additionally, there is no evidence of any ongoing autoimmune conditions on the Veteran’s February 1969 separation examination. Although the Veteran’s herbicide exposure has been established, multiple sclerosis is not on the list of diseases enumerated in 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The first treatment for multiple sclerosis of record comes in October 1999; three decades post-discharge from active duty service. The Veteran, through his representative, requested a VA examination with respect to his multiple sclerosis. At the December 2020 hearing, the Veteran’s attorney asserted that the Veteran’s exposure to chemicals, air exhaust and herbicides could be as likely as any other reason why the Veteran developed multiple sclerosis. The attorney did not provide any supporting documentation or otherwise indicate that he was told by a medical professional that there was a causal relationship between multiple sclerosis and chemical or herbicide exposure. The Veteran and his attorney are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, they are not competent to provide an opinion as to the etiology of the Veteran’s multiple sclerosis because this requires specialized medical knowledge to make such a determination. The determination of the etiology of autoimmune diseases is beyond the scope of a lay person; and the Veteran and his attorney have not been shown to possess any pertinent medical training or expertise that would make them competent to render an opinion as to its etiology. The Board finds that an examination is not warranted. Pursuant to McLendon v. Nicholson, a VA examination must be provided when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an event, injury or disease occurred in service, and (3) an indication that the disability or persistent or current symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board has carefully considered the Court’s language in McLendon that the threshold for showing this association is a low one. However, the Court’s language makes it clear that there is in fact a threshold. Here, only the Veteran’s contentions provide any suggestion of such association between his disability and service to include his chemical or herbicide exposure, and the Board does not find the Veteran’s contentions to rise to the level of the “indication of an association” referred to in 38 U.S.C. § 5103A or in McLendon. As noted above, the Veteran is not competent to provide an opinion as to the etiology of his multiple sclerosis. Although the Veteran has a current diagnosis of multiple sclerosis and has been presumed to be exposed to herbicide agents, the evidence of record does not establish a relationship between his exposure and his current diagnosis. Therefore, the Board finds the preponderance of the evidence does not establish an in-service incurrence. Necessarily, the nexus element cannot be met. As a result, service connection for multiple sclerosis must be denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder to include anxiety, depression and PTSD, is remanded. At his December 2020 hearing, the Veteran testified that his health conditions caused his depression and anxiety. Additionally, the Veteran indicated that his PTSD was related to fear of hostile military activity. VA law stipulates that “if a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.” 38 C.F.R. § 3.304(f)(3). The Board finds that an opinion is necessary to determine whether the Veteran’s anxiety and depression are related to his service-connected hearing loss and tinnitus and whether his claimed in-service stressor is adequate to support a diagnosis of PTSD and his symptoms are related to the claimed stressor. It is up to the discretion of the examiner(s) as to whether an examination (either in-person or via telehealth) is necessary. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records related to the Veteran’s claim on appeal. 2. Then, arrange for an appropriate health care provider to review the Veteran’s claims file to determine the nature and etiology of all current psychiatric disorders. After a review of the claims file, the examiner should: a) List all psychiatric disabilities present during the appeal period. b) For any psychiatric disability (other than PTSD), the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder had its clinical onset in service or is otherwise related to active duty. The examiner should also indicate whether it is at least as likely as not, (50 percent probability or greater), that any psychiatric disability other than PTSD was (A) caused or (B) aggravated beyond its normal progression by the service-connected hearing loss, tinnitus, or diabetes. Aggravation means an increase in disability – any additional impairment of earning capacity – of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. c) For any PTSD diagnosed, the examiner must specify the specific in-service stressor(s) that led to the diagnosis or whether it is the result of fear of hostile military or terrorist activity. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.