Citation Nr: 21027927 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 19-21 564 DATE: May 7, 2021 ORDER The application to reopen the claim for service connection for diabetes mellitus is granted. To this extent only, the appeal is granted. The application to reopen the claim for service connection for erectile dysfunction is granted. To this extent only, the appeal is granted. Entitlement to service connection for an acquired psychiatric disability, including unspecified anxiety disorder and depression, is granted. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. An October 2013 rating decision denied service connection for diabetes mellitus and erectile dysfunction. The evidence received since the October 2013 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran's claims. 2. It is at least as likely as not that the Veteran's acquired psychiatric disability is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the claim for service connection for diabetes mellitus is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 2. New and material evidence having been submitted, the claim for service connection for erectile dysfunction is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria for entitlement to service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1101, 1111, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.125 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to February 1971. He received the National Defense Service Medal, Small Arms Expert Marksmanship Ribbon, Air Force Good Conduct Medal, and Air Force Longevity Service Award. In July 2020, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Although the Veteran's claim was initially characterized as service connection for post-traumatic stress disorder, the evidence shows that the Veteran has been diagnosed with unspecified anxiety disorder. See February 2019 CAPRI, p. 28. Therefore, the Board has recharacterized the issue more broadly to include an acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). The claims for service connection for diabetes mellitus and erectile dysfunction were previously denied in an unappealed rating decision in October 2013. The Agency of Original Jurisdiction (AOJ) determined that the evidence failed to show an in-service event or nexus. The Veteran did not appeal the decision and it became final. Since that final decision, the Board finds that the Veteran has submitted new and material evidence. Specifically, the Veteran has provided evidence of an in-service injury as he has submitted evidence of the use of herbicides at Avon Park, Florida. See January 2021 Private Treatment Records, p. 15. The Board finds that the newly submitted evidence reasonably raises the possibility that the Veteran's diabetes mellitus and erectile dysfunction may be etiologically related to his service, and the Board will reopen the claims. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). Service Connection for an Acquired Psychiatric Disability Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Direct service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The evidence shows that the Veteran has a current diagnosis of unspecified anxiety disorder that has been made in accordance with the DSM-5 criteria. See February 2019 CAPRI, p. 28; see also 38 C.F.R. § 4.125. Accordingly, the first element of service connection is established. See Holton, 557 F.3d at 1366. The evidence also demonstrates an in-service injury or incurrence. At the July 2020 hearing, the Veteran and his spouse testified to the Veteran experiencing psychiatric symptoms in service while he was stationed in Greece and following his return to the states. See July 2020 Hearing Transcript, pp. 3, 12, 14. The Veteran's spouse testified that he had panic attacks, anxiety, sleep problems and concerns about being attacked when he returned from Greece. The Board finds the Veteran's and his spouse's testimonies to be competent and credible. While there is no record of these symptoms in the Veteran's service treatment records, his service personnel records show that he was stationed in Greece from March 1967 to April 1968. See March 2019 Military Personnel Records, p. 45. The Board finds that there is sufficient evidence to demonstrate an in-service injury and the second element of service connection is established. See Holton, 557 F.3d at 1366. With regard to the final element, the evidence is at least in equipoise. The Veteran submitted an opinion from a non-VA clinician in January 2021. See January 2021 Private Treatment Records, pp. 4-9. The clinician opined that the Veteran's current psychiatric symptoms, including his anxiety and distress, are related to his active duty service. The clinician explained that the Veteran exhibited various symptoms when discussing his experiences in service, and the Veteran reported experiencing other symptoms when he had memories or nightmares related to his service. The opinion is based on the facts as demonstrated by the record, including the Veteran's statements, and the Board finds it to be probative. As there is no opinion to the contrary, the Board finds that the evidence related to nexus is at least in equipoise, and the Board will resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the final element of service connection is also established. See Holton, 557 F.3d at 1366. As all three elements of service connection established, service connection for an acquired psychiatric disability, including unspecified anxiety disorder, is warranted. REASONS FOR REMAND Service Connection for Diabetes Mellitus and Erectile Dysfunction The Veteran contends that he was exposed to herbicides while stationed at Avon Park, Florida but there is insufficient evidence of record to establish that the Veteran was exposed to herbicides. See January 2021 Private Treatment Records, p. 15. As the AOJ has not taken any steps to verify whether the Veteran may have been exposed to herbicides during his time there, the claims are remanded. See 38 U.S.C. § 5103A. On remand, the AOJ should take appropriate steps to verify the details surrounding the use of any herbicides at Avon Park, including how long herbicides may remain present after application, and whether the Veteran may have come in contact with any herbicides while stationed there. The matters are REMANDED for the following action: Take all appropriate steps to verify the Veteran's exposure to herbicides in Avon Park during his active duty service. All efforts to confirm whether the Veteran was exposed to herbicides while stationed at Avon Park should be documented and a formal memorandum that sets forth any findings should be prepared and associated with the claims file. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W.V. Walker, 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.