Citation Nr: 21012473 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 19-30 954 DATE: March 4, 2021 ORDER The application to reopen the claim for service connection for liver disease, to include as due to herbicide exposure, for substitution purposes, is granted. The application to reopen the claim for service connection for an acquired psychiatric disorder for substitution purposes is granted. REMANDED Entitlement to service connection for liver disease, to include as due to herbicide exposure, for substitution purposes, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression, for substitution purposes is remanded. Entitlement to service connection for diabetes mellitus type II for substitution purposes is remanded. Entitlement to service connection for Alzheimer’s disease, to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to service connection for cerebrovascular disease (CVA), to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to service connection for a heart condition, to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to service connection for a kidney condition, to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to service connection for Parkinson’s disease, to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to herbicide exposure, for substitution purposes is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) for substitution purposes is remanded. FINDINGS OF FACT 1. A December 2011 rating decision denied service connection for liver disease. Evidence received since the December 2011 rating decision includes relevant service department records which were not previously of record. 2. An April 1971 rating decision denied service connection for anxiety neurosis. Evidence received since the April 1971 rating decision includes relevant service department records which were not previously of record. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for liver disease has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a), (c). 2. The criteria for reopening the claim for service connection for anxiety neurosis has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a), (c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to January 1970. The Veteran died in October 2016. The appellant is the Veteran’s surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) from August 2016 and September 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Concerning the appellant’s claim for service connection for an acquired psychiatric disorder, to include PTSD, anxiety and depression, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) noted that the Board should consider alternative current disorders within the scope of the filed claim. Id. In light of Clemons, the issue of PTSD and anxiety have been broadened to reflect entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety and depression. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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.” See id. In addition, notwithstanding the requirement of new and material evidence, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). The appellant asserts that the Veteran’s liver disease was related to his active service. The RO issued a rating decision in December 2011. The Veteran submitted a timely notice of disagreement (NOD) and a statement of the case (SOC) was issued in October 2014, which was not timely appealed. Previously unavailable service treatment records (STRs) were received subsequent to the December 2011 rating decision and have been associated with the claims file in November 2014. These records include several documents relevant to the Veteran’s service connection claim. As these records are relevant and material to the Veteran’s service connection claim, reopening and reconsideration of the claim under 38 C.F.R. § 3.156(c) is warranted without the requirement for new and material evidence. As such the application to reopen the claim for entitlement to service connection for liver disease is warranted. As to the claim for service connection for an acquired psychiatric disorder, the appellant asserts that the Veteran’s ongoing mental health symptomology was related to service. The RO issued a rating decision in April 1971. The rating decision was not timely appeal. Previously unavailable STRs were received subsequent to the April 1971 rating decision have been associated with the claims file in November 2014. These records include several documents relevant to the Veteran’s service connection claim. As these records are relevant and material to the Veteran’s service connection claim, reopening and reconsideration of the claim under 38 C.F.R. § 3.156(c) is warranted without the requirement for new and material evidence. As such the application to reopen the claim for entitlement to service connection for anxiety neurosis is warranted. REASONS FOR REMAND The Veteran prior to his death asserted that service connection was warranted for numerous disabilities to include as due to herbicide exposure in-service. During the course of the appeal the Veteran died in October 2016. The Veteran and the appellant asserted that the Veteran was exposed to herbicides while serving in Korea. Further, the Veteran prior to his death asserted that he was exposed to herbicides and served in the Republic of Vietnam. The Board finds that additional development is warranted and relevant to all the claims on appeal. First, the Veteran’s claims file does not appear to contain his complete service personnel records for his period of service. As these outstanding personnel records may contain information regarding the Veteran’s service in Korea and potential service in the Republic of Vietnam, additional development is warranted. The Veteran prior to his death and the appellant asserted that he was exposed to herbicide agents during service in Korea. Additional information and development is needed before the Board can make a fully informed decision regarding exposure to herbicides in-service. A remand is required to obtain any outstanding personnel records and complete necessary development regarding the Veteran’s claimed herbicide exposure. As to the claim for entitlement to service connection for an acquired psychiatric disorder, the Board notes that a VA opinion from September 2016 has been associated with the claims file. While the examiner noted that the Veteran was in hospice and unable to talk and provide information for his condition, the examiner noted that appellant and the Veteran’s son were interviewed. However, the VA opinion failed to address whether the Veteran had a diagnosis of an acquired psychiatric disorder. Further, a prior VA psychiatric examination from January 1971 noted anxiety neurosis with depressive features. In addition, VA treatment records note ongoing reports of anxiety and depression. As such on remand a supplemental opinion should be obtained. Next, the Board cannot make a fully informed decision on the issue of service connection for liver disease because no VA examiner has fully opined as to direct and presumptive service connection. A private opinion from February 2010 has been associated with the claims file noting the Veteran developed liver disease in-service with symptoms of fever, abdominal pain, nausea and anorexia soon after service. Further, the opinion attributed the Veteran’s liver disease due to stress in-service while serving in Korea which resulted in him drinking and is more probable than not service connected. The private opinion failed to provide a thorough and reasoned rationale for the conclusions reached. In addition, a VA opinion from September 2011 has been associated with the claims file and found that the Veteran’s liver disease is most likely caused by or a result of chronic alcohol intake and Hepatitis C. However, the VA opinion failed to address presumptive service connection or the claims in the private opinion that soon after service the Veteran presented with symptomology of liver disease. As such a supplemental VA opinion is warranted. Finally, because a decision on the remanded service connected issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records and associate such with the claims file. Any attempts to obtain outstanding personnel records should be documented. 2. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents. If more details are needed, contact the appellant to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the appellant and notify appellant of VA’s inability to verify the in-service herbicide agent exposure. 3. Obtain a VA opinion from an appropriate clinician to address if the Veteran had an acquired psychiatric disorder, to include PTSD, anxiety, and/or depression. The clinician should address the following: (a.) Identify any diagnoses the Veteran had under the DSM-V. (b.) Is it at least as likely as not (a 50 percent probability or greater) that any identified acquired psychiatric disorder was incurred in or caused by an in-service injury or disease? (c.) Is it at least as likely as not (a 50 percent probability or greater) that any acquired psychiatric disorder (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to January 1971 psychiatric examination noting anxiety neurosis with depressive features. Further, VA treatment records note ongoing reports of anxiety and depression. As such on remand a supplemental opinion should be obtained. 4. Obtain a VA opinion from an appropriate clinician regarding the Veteran’s liver disease. The clinician should address the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s liver disease was caused by an in-service injury or disease, including service in Korea? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’ s liver disease (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? (Continued on the next page)   Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the private opinion in February 2010 noting the Veteran developed liver disease in-service with symptoms of fever, abdominal pain, nausea and anorexia soon after service. Further, the opinion attributed the Veteran’s liver disease due to stress in-service serving in Korea which resulted in him drinking and is more probable than not service connected. In addition, attention is invited to the VA opinion from September 2011 that has been associated with the claims file noting the Veteran’s liver disease is most likely caused by or a result of chronic alcohol intake and Hepatitis C. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.