Citation Nr: 22017792 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 17-10 655 DATE: March 26, 2022 ORDER The application to reopen the previously denied service connection claim for mental condition, alcohol abuse is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and secondary to service-connected obstructive sleep apnea (OSA), is remanded. FINDINGS OF FACT 1. In an August 2012 rating decision, the RO denied service connection for mental condition, alcohol abuse. The Veteran neither timely appealed nor submitted new and material evidence within the one-year appeal period. 2. Evidence received since this rating decision relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for mental condition, alcohol abuse. 3. The evidence is at least evenly balanced as to whether the Veteran has a PTSD diagnosis in accordance with the applicable regulations that is related to Vietnam combat stressors consistent with the circumstances, conditions or hardships of such service. CONCLUSIONS OF LAW 1. The August 2012 rating decision that denied service connection for mental condition, alcohol abuse, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. Evidence received since the rating decision is new and material, and the Veteran's claim for entitlement to service connection for mental condition, alcohol abuse is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to June 1969, to include combat service in the Republic of Vietnam. This case comes before the Board of Veteran Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hypertension and denied the petition to reopen a service connection claim for PTSD. The Veteran timely appealed. In June 2017, the RO awarded service connection for an unspecified anxiety disorder and reported that this award satisfied the appeal for PTSD. However, the Veteran had perfected an appeal for his petition to reopen a previously denied service connection claim for PTSD in February 2017. His correspondence following the June 2017 rating decision indicates that the June 2017 rating decision awarding service connection for anxiety disorder did not fully satisfy his claim for PTSD. (See July 2018 and April 2020 PTSD claims). Thus, the issue of service connection for PTSD remains on appeal. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("We recognize that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability"). In January 2020, the Veteran stated that he wanted to represent himself. In December 2021, he submitted VA Form 21-22a appointing the above individual as his one-time representative under 38 C.F.R. § 14.630. The Board recognizes this change in representation. In March 2022, the Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the claims file, but one is not necessary because either the benefits sought are being granted in full or further development is required before the claim can be adjudicated, and a transcript would not alter that determination or assist in the development. Petition to reopen previously denied service connection claim for mental disorder Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this general 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 decision makers. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the 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 Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the RO denied a service connection claim for a mental condition, alcohol abuse in an August 2012 rating decision. It cited an absence of a relationship to service. The Veteran was appropriately notified and did not appeal this decision. New and material evidence was not received within the remaining appeals period, including VA treatment records constructively of record. Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020); 38 C.F.R. § 3.156(b). Previously considered evidence included service treatment records (STRs), VA treatment records from April 2011 to January 2012 and a July 2012 VA examination. The July 2012 VA psychiatrist furnished a negative medical opinion, and the RO found that a relationship to service was not established. Since the August 2012 rating decision, the Veteran provided additional information about his PTSD disability. He submitted an October 2018 letter from a treating VA psychologist, which confirmed a current PTSD diagnosis and related to it combat service. In sum, the additionally received evidence suggests that the Veteran had PTSD related to combat service, which was the basis for the previously denied service connection claim. Thus, the additional evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim. The Board thus considers it to be new and material. Reopening of the service connection claim for a mental condition is therefore warranted. Service Connection for PTSD 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). In this case, the Veteran earned a Combat Infantry Badge (CIB) during service in Vietnam. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). Nevertheless, even when the claimed cause of a disability is established by lay testimony, this does not prevent a veteran from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Under 38 C.F.R. § 3.304(f), additional evidentiary requirements apply to PTSD claims. It consists of the following: (1) a medical diagnosis of PTSD utilizing, in this case, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a relationship between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In pertinent part, if the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships 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)(2). Service treatment records (STRs) do not show any complaints or treatment for psychiatric type symptoms. As noted, service records showed that the Veteran served in Vietnam and earned a CIB. His military occupational specialty was as a light weapons infantryman. In July 2012, the Veteran had a VA PTSD examination with a psychiatrist. The psychiatrist diagnosed alcohol abuse. The Veteran had a military history of combat service in Vietnam. He was currently separated from his wife of many years. He complained about irritability. He currently worked part time and prior to his part time job he worked as a county property assessor for many years. He was evasive about his reasons for leaving. He currently took antidepressants and had psychotherapy with fair benefit. He reported military stressors as killing people in Vietnam for self-preservation. The psychiatrist reviewed the PTSD criteria and noted that the Veteran's symptoms only partial satisfied it. She reported that the Veteran was currently in therapy for issues unrelated to service. She furnished a negative medical opinion. She concluded the Veteran did meet criteria for a PTSD diagnosis. She stated that the Veteran's subjective complaints were inconsistent with the clinical interview. The Veteran's marital problems did not have a relationship to Vietnam service, but the Veteran's contemporaneous behavior. December 2013 VA treatment records showed that the Veteran reported increased mental health symptoms. He reported difficulties with his family through a pending divorce. His symptoms including irritability and nightmares of firefights in Vietnam. He believed there may be a link to Vietnam memories and was interested in group therapy to process these thoughts. The clinician assessed major depressive disorder (MDD) recurrent. In March 2017, the Veteran had a VA-contract PTSD examination with a psychologist. The psychologist diagnosed unspecified anxiety disorder and alcohol abuse disorder. She noted the Veteran had previously been diagnosed with PTSD. However, after interviewing him and reviewing his records, she did not believe the Veteran met the full criteria for PTSD since it did not appear to impact his interpersonal and education function. However, the Veteran reported nightmares about Vietnam incidents and had anxiety and irritability. He also stated that he liked to talk to other Veterans about his experience and continued to meet with fellow soldiers. The psychiatrist construed this as weighing against avoidance symptoms. She reported that the Veteran used alcohol as self-medication for mental health symptoms. She detailed the psycho-social history. The Veteran received VA mental health treatment and was on medication management. She indicated that the Veteran may be exaggerating his symptoms during quantitative testing since his response conflicted with his reports of activities. The military stressors were reported as receiving incoming fire while stationed at a forward observation post, avoiding mines or booby traps while on patrol, and engaging in firefights. The Veteran witnessed both American and enemy casualties. The psychiatrist reported that several elements of the PTSD criteria were missing. Behavioral observations were notable for major anxiety and tremors. The psychiatrist assessed anxiety disorder and related it to service. She stated that the Veteran did not meet the full criteria for PTSD. In October 2018, a VA psychologist issued a letter in support of the claim. She reported that the Veteran been under VA mental health treatment since April 2011, and she had started caring for him. She confirmed that he had been treated for PTSD due to combat stressors. The Veteran continued to struggle with survivor's guilt and recently had a psychiatric hospitalization. She detailed the Veteran's symptoms and concluded that the Veteran had PTSD due to combat service. In December 2020, the Veteran had a VA-contract PTSD examination with a psychologist. The psychologist diagnosed PTSD conforming to the DSM-5 criteria. She reviewed recent mental health records and recited the Veteran's psycho-social history. She recited three Vietnam combat stressors that met PTSD criterion A. She found that the Veteran currently had symptoms that satisfied all elements for a PTSD diagnosis. She related the current PTSD diagnosis to service. She cited the Veteran's reports of longstanding PTSD type symptoms. For the following reasons, the evidence of record is at least evenly balanced as to whether the service connection elements for PTSD under 38 C.F.R. § 3.304(f)(2) are met. The first issue is determining whether there is credible evidence of a military stressor. Again, for combat related stressors, the Veteran's report is sufficient if it consistent with the circumstances, conditions or hardships of the Veteran's service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). The Veteran's stressor reports found in the multiple VA and VA-contract examination reports are consistent with his service records confirming service as an Army infantryman in Vietnam during the late 1960s. These service records, in conjunction with the Veteran's description of Vietnam combat type stressors are credible supporting evidence for the enemy fire combat stressor occurrences and relationship to current psychiatric symptoms. Reeves, 682 F.3d at 999; Id. However, the Veteran's reports are not competent to establish a current psychiatric diagnosis. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (lay witness generally not competent to furnish a valid psychiatric diagnosis). Medical evidence is required to establish a current psychiatric diagnosis. Id.; 38 C.F.R. § 4.125. The July 2012 and March 2017 VA PTSD examination reports did not include a PTSD diagnosis. Meanwhile, the October 2018 letter from a VA psychologist and the December 2020 VA-contract psychologist report that the Veteran meets the criteria for a PTSD diagnosis. The Board finds the October 2018 and December 2020 reports more probative since their assessments are consistent with the Veteran's reports of longstanding PTSD type symptoms and combat service history. Thus, there is probative evidence of a current PTSD diagnosis. Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), aff'd sub nom., Martinez-Bodon v. McDonough, __ F.3d __, No. 2021-1328, 2022 U.S. App. LEXIS 6559 (Mar. 15, 2022) ((a valid DSM-5 diagnosis is required to warrant compensation for a psychiatric disability). The evidence in support of a relationship to combat stressors for PTSD consists of the Veteran's reports about combat stressors and longstanding PTSD type symptoms, October 2018 VA psychologist's letter and December 2020 VA-contract medical opinion. Together, these reports provide highly probative evidence that the Veteran has had longstanding psychiatric symptoms due to combat stressors that culminated in the current PTSD diagnosis. There is no conflicting evidence about a relationship to combat service for current PTSD. For the foregoing reasons, the Board finds the evidence is at least in a state of relative equipoise as to whether the elements of a claim for service connection for PTSD have been met. 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 PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and secondary to service-connected obstructive sleep apnea (OSA), is remanded. Medical records show that the Veteran is currently followed for hypertension. He reported hypertension as part of his medical history to VA clinicians as early as July 2011. Then, July 2016 VA treatment records include blood pressure readings consistent with VA defined hypertension. See 38 C.F.R. § 4.104, DC 7101, Note 1. The Veteran is presumed to have been exposed to herbicide agents, including Agent Orange, during service in Vietnam. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Hypertension is not among the diseases associated with exposure to certain herbicide agents. 38 U.S.C. § 1116B; 38 C.F.R. § 3.309(e). However, the National Academy of Sciences (NAS) has indicated that there is sufficient evidence of an association between hypertension and Agent Orange exposure. See Veterans and Agent Orange: Update 11 (2018). As the NAS Update 11 moved hypertension from the "limited or suggestive" category to the category of "sufficient" evidence of an association, the theory of entitlement to hypertension based on the Veteran's Agent Orange exposure is constructively before VA pursuant to the relevance and reasonableness standard of Euzebio v. McDonough, 989 F.3d 1305, 1321 (Fed. Cir. 2021). The Veteran has not been afforded a VA examination in connection with this claim. There is competent evidence that the Veteran currently has hypertension. He is presumed to have been exposed to an herbicide agent (Agent Orange) in service, and his claimed hypertension may be related to such exposure. Therefore, a remand is warranted to obtain an appropriate medical opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Then, at the hearing, the Veteran raised the issue of secondary service connection to now service-connected OSA. 38 C.F.R. § 3.310. An opinion is need in this regard as well. The matter is REMANDED for the following action: Contact an appropriate clinician for a medical opinion concerning hypertension. The clinician must review the claims file. The clinician must opine on whether it is at least as likely as not, or approximately so that the Veteran's hypertension either: (1) began during service; (2) manifested within one year after separation from service; OR (3) is related to an in-service injury or disease, including his exposure to herbicide agents. The clinician must also opine whether the Veteran's hypertension is at least as likely as not, or approximately so that the Veteran's hypertension is either: (1) caused by service-connected OSA or (2) aggravated by service-connected OSA. The medical opinion must clearly address both causation and aggravation elements for this portion of the claim. The clinician must provide reasons for each opinion given. In this regard, the clinician must consider the NAS's determination that there is now sufficient evidence of an association between hypertension and Agent Orange exposure (See Veterans and Agent Orange: Update 11 (2018)). The fact that hypertension is not yet on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.