Citation Nr: 22013379 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-56 709 DATE: March 9, 2022 ORDER The application to reopen the previously denied claim of entitlement to service connection for a psychiatric disability is granted. Entitlement to service connection for schizoaffective disorder, depressed type is granted. REMANDED Entitlement to service connection for a breathing disability is remanded. Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for sterility is remanded. FINDINGS OF FACT 1. In an August 2005 rating decision, the Regional Office (RO) denied reopening the Veteran's claims for entitlement to service connection for PTSD and schizoaffective disorder with depression; the Veteran did not timely initiate an appeal of that decision or submit new and material evidence within one year of notification. 2. Evidence added to the record since the August 2005 rating decision relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. 3. The evidence is at least evenly balanced as to whether the Veteran's schizoaffective disorder had its onset during service. CONCLUSIONS OF LAW 1. The August 2005 RO decision that denied service connection for PTSD and schizoaffective disorder with depression is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b), 20.1103. 2. The criteria for reopening the claims of entitlement to service connection for a psychiatric disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for schizoaffective disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to April 1970, with service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for headaches, sinus problems, sterility, a breathing condition, and denied reopening a claim for a psychiatric disability. In May 2014, the Veteran filed his notice of disagreement, was issued a statement of the case, and perfected his appeal in October 2017. NEW AND MATERIAL The Board notes that to the extent that the RO appears to have adjudicated the claim involving the Veteran's psychiatric disability on the merits, regardless of the RO's actions, the Board must still determine whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In an August 2005 rating decision, the RO denied reopening the Veteran's claims for service connection for PTSD and schizoaffective disorder with depression, finding that no new and material evidence had been submitted. The Veteran did not file a timely appeal or submit new and material evidence within a year of the rating decision as to the claims, thus, the August 2005 rating decision as to those claims became final. Generally, a claim which has been denied in an unappealed Agency of Original Jurisdiction (AOJ) decision is final and may not thereafter be reopened and allowed. 38 U.S.C.§ 7105 (c); 38 C.F.R. § 20.1100. One exception to this rule is that a previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R.§ 3.156. New and material evidence cannot be cumulative or 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See 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, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. At the time of the August 2005 rating decision, evidence relevant to the service connection claims included November 1994 and February 1995 VA examination reports, the Veteran's service treatment records, and post service treatment records. Evidence received since the August 2005 rating decision includes VA treatment records, additional medical treatment records, and a May 2013 VA examination report. The evidence regarding the claim for service connection for a psychiatric disability is not redundant of the record and raises a reasonable possibility of substantiating the claims, as the VA examination report provides additional evidence regarding a diagnosis and the etiology of the Veteran's psychiatric disability. The evidence is thus new and material, and the service connection claim for a psychiatric disability is reopened. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Schizoaffective Disorder The record contains diagnoses for multiple psychiatric disabilities. Therefore, the Board has expanded the issue on appeal to include all psychiatric disorders consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In a June 2010 statement, the Veteran reported using drugs on a daily basis during service in Vietnam to cope with the stress of seeing death and watching his comrades die during the war. He stated that after release from service, he became withdrawn, attempted suicide, and had violent outbursts. He also reported bed-wetting, not wanting to go outside, paranoia, and visual and audial hallucinations. The Veteran's service treatment records do not reflect treatment for, or complaints of a psychiatric disability or symptoms associated with a psychiatric disability, and his April 1970 medical examination report upon discharge is normal. His April 1970 medical examination report upon discharge also does not indicate that the Veteran had a psychiatric disability, or symptoms associated with a psychiatric disability. September 1993 post-service treatment records indicate that the Veteran has diagnoses of major depression, poly-substance dependence, and dependent personality. February 1994 treatment records reflect a diagnosis of depressed schizoaffective disorder. An October 1994 VA examination report reflects a diagnosis of PTSD, with the Veteran reporting flashbacks and hearing voices. The Veteran reported first hearing voices in 1986, and that he has had visions of tracer bullets from time to time since around 1971. The Veteran stated that while he was not in combat during service, he remembers tracer bullets going over his head on one occasion. The examining psychologist stated that the diagnosis of PTSD does not seem to be indicated, but a diagnosis of schizophrenia semes to be appropriate. A May 2013 VA examination report indicates that the Veteran does not have a diagnosis of PTSD that conforms to DSM-IV criteria, but does have a diagnosis of schizophrenia, otherwise known as schizoaffective disorder, depressed type. The examining psychiatrist noted that the Veteran reported a stressor of being near firefights and rocket attacks in Vietnam. The examination report indicates that this stressor is related to the Veteran's fear of hostile military or terrorist activity. The psychiatrist reported that while the Veteran has some memories of Vietnam, there is a tenuous connection between his symptoms and his Vietnam experience, and it is more likely than not that his schizoaffective disorder accounts for his symptoms. May 2013 VA treatment records reflect a diagnosis of depression not otherwise specified (NOS). May 2013 VA treatment records reflect that the Veteran reported symptoms of wanting to hurt himself and others, stating that these symptoms had their onset in 1969. The evidence is at least evenly balanced as to whether the Veteran's schizoaffective disorder is related to service. The Veteran has provided evidence of in-service exposure to tracer bullets going over his head while near firefights and rocket attacks in Vietnam, and watching fellow servicemembers die, and his February 1994, and May 2013 VA examination reports reflect a diagnosis of schizoaffective disorder, depressed. Therefore, the first 2 elements for service connection have been met, and the dispositive issue is whether there is a nexus between the two. While the May 2013 psychiatrist reported that the Veteran's symptoms are more likely than not due to his schizoaffective disorder, he failed to opine as to whether the schizoaffective disorder was related to his exposure to firefights and rockets during Vietnam. The Veteran has reported that he first started having issues with his mental health during service, stating that he self-medicated to deal with the stress of service in Vietnam, that he began to behave differently upon discharge from service, including attempting suicide and violent outbursts, and reported an onset of symptoms in 1969 and visions of tracer bullets since around 1971. The Veteran is competent to report symptomatology associated with his mental disabilities, and there is no indication that he lacks credibility. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). This evidence is thus entitled to some probative weight. While the Board could remand for an additional VA opinion, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). As indicated above, the Veteran has been diagnosed with depression and PTSD in addition to schizoaffective disorder, depressed type. Notably, the May 2013 VA examiner did not differentiate between symptomatology associated with the Veteran's schizoaffective disorder, depressed type and his other psychiatric disorders. As the Veteran will therefore be compensated for all of his psychiatric symptoms, the Board will not separately adjudicate a claim for service connection for any other psychiatric disorder. Mittleider v. West, 11 Vet. App. 181 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's schizoaffective disorder, depressed type is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for schizoaffective disorder, depressed is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Headaches, Sinusitis, Breathing Disability, Sterility The Veteran competently reported in his February 2010 claim that he currently has breathing problems, bad headaches, and sinus problems, and believes they are related to service. See Jandreau, 492 F. 3d at 1377. The Veteran's DD-214 indicates that his military occupational specialty was as a cook, and that he is a recipient of the Vietnam Campaign Medal, and Vietnam Service Medal, among one other decoration. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). As the Veteran has provided evidence of service in Vietnam during the requisite period, he is presumed to have been exposed to an herbicide agent. The Veteran's service treatment records do not reflect treatment for, or complaints of headaches or sinus issues, and his April 1970 medical examination report upon discharge is normal. However, his April 1970 medical examination report upon discharge indicates that the Veteran suffered from frequent or severe headaches and sinusitis. The Veteran indicated in his February 2010 claim that he could not have children after leaving Vietnam due to a low sperm count. In a June 2010 statement, the Veteran reported that exposure to Agent Orange and various types of medications has left him sterile. An October 1994 hospital summary indicates that the Veteran had gonorrhea in 1969, and currently has a left varicocele. Unfortunately, the Board cannot make a fully-informed decision on the issues of entitlement to service connection for headaches, sinusitis, breathing disability, and sterility, as no VA examiner has opined whether the Veteran's disabilities are related to service. For service connection claims, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with service or a service-connected disability, and (3) the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4)(i)(C); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The Veteran has provided competent and credible evidence that he suffers from breathing problems, sinus problems, headaches, and sterility, and his April 1970 medical history report indicates that he suffered from headaches and sinusitis. Additionally, the Veteran is presumed to have been exposed to an herbicide agent during service in Vietnam, and indicated that the current symptoms may be associated with service. However, as the evidence is insufficient to make an informed decision on the claims, a remand for medical opinions is warranted. The matters are thus REMANDED for the following actions: 1. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's breathing disability. If an opinion cannot be obtained without an examination, schedule the Veteran for an examination, to include via telehealth if appropriate, to determine the nature and etiology of any breathing disability. The clinician must opine whether any breathing disability is at least as likely as not (at least a 50 percent probability) related to an in-service event, injury, or disease, including the Veteran's presumed exposure to an herbicide agent during service in Vietnam. In answering this question, the clinician should not use as a basis for his/her opinion the fact that a breathing disability is not on the list of diseases presumed service connected in Veterans exposed to herbicide agents. A complete rationale should accompany any opinion(s) provided. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. 2. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's sinus disability. If an opinion cannot be obtained without an examination, schedule the Veteran for an examination, to include via telehealth if appropriate, to determine the nature and etiology of his sinus disability. The clinician must opine whether any sinus disability is at least as likely as not (at least a 50 percent probability) related to an in-service event, injury, or disease, including the Veteran's reports of sinusitis as reflected by his April 1970 medical history report, or his presumed exposure to an herbicide agent during service in Vietnam. In answering this question, the clinician should not use as a basis for his/her opinion the fact that a sinus disability is not on the list of diseases presumed service connected in Veterans exposed to herbicide agents. A complete rationale should accompany any opinion(s) provided. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. 3. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's headaches. If an opinion cannot be obtained without an examination, schedule the Veteran for an examination, to include via telehealth if appropriate, to determine the nature and etiology of his headaches. The clinician must opine whether the Veteran's headaches are at least as likely as not (at least a 50 percent probability) related to an in-service event, injury, or disease, including the Veteran's reports of headaches as reflected by his April 1970 medical history report, or his presumed exposure to an herbicide agent during service in Vietnam. In answering this question, the clinician should not use as a basis for his/her opinion the fact that headaches are not on the list of diseases presumed service connected in Veterans exposed to herbicide agents. A complete rationale should accompany any opinion(s) provided. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. 4. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's sterility. If an opinion cannot be obtained without an examination, schedule the Veteran for an examination, to include via telehealth if appropriate, to determine the nature and etiology of his sterility. The clinician must opine whether the Veteran's sterility is at least as likely as not (at least a 50 percent probability) related to an in-service event, injury, or disease, including the Veteran's gonorrhea in service, or his presumed exposure to an herbicide agent during service in Vietnam. In answering this question, the clinician should not use as a basis for his/her opinion the fact that sterility is not on the list of diseases presumed service connected in Veterans exposed to herbicide agents. A complete rationale should accompany any opinion(s) provided. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.