Citation Nr: 24011502
Decision Date: 03/11/24	Archive Date: 03/11/24

DOCKET NO. 21-00 285
DATE: March 11, 2024

ORDER

Entitlement to service connection for multiple myeloma as due to in-service exposure to herbicide agents is granted.

Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied.

FINDINGS OF FACT

1. The Veteran was exposed to herbicide agents during his service in Korea.

2. The Veteran does not have a current diagnosis of PTSD that conforms with the DSM-5.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for multiple myeloma have been met.?38?U.S.C. §§?1110, 5107;?38?C.F.R. §§?3.102, 3.303(a)(b), 3.307,?3.309. 

2. The criteria for service connection for PTSD have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1970 to March 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by a Departments of Veterans Affairs (VA) Regional Office (RO), which denied service connection for multiple myeloma and PTSD.

Preliminarily, the Board notes that the Veteran submitted a Decision Review Request, Supplemental Claim (VA Form 20-0995) in October 2019 regarding multiple myeloma and referencing a May 2018 rating decision. The RO then issued a rating decision in November 2019 continuing the denial for multiple myeloma. However, a July 2018 Notice of Disagreement (NOD) includes multiple myeloma as a disputed claim, and multiple myeloma was included on the January 2021 Statement of the Case (SOC). Multiple myeloma is included on the Veteran's VA Form 9 Appeal to the Board of Veterans' Appeals submitted February 2021, as well as the VA Form 8, Certification of Appeal filed March in 2021. Thus, appeal of the issue of entitlement to service connection for multiple myeloma was pending at the time the supplemental claim was filed. As a supplemental claim was thus improper, the Board construes the supplemental claim and associated correspondence and rating decision as evidence submitted in support of the claim on appeal. 38 C.F.R. § 3.2500(b); see Terry v. McDonough, 2023 U.S. App. Vet. Claims LEXIS 1620.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38?U.S.C. §?1110; 38?C.F.R. §?3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in the denial of service connection.

VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era 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 that service. See?38?C.F.R. §?3.307?(a)(6)(iii). VA regulations recognize additional methods of establishing in-service exposure to herbicides. Notably, a Veteran who during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, as determined by the Department of Defense ("DOD,") shall be presumed to have been exposed during such service to an?herbicide agent, unless there is affirmative evidence to the contrary.?38?C.F.R. §?3.307?(a)(6)(iv);?76 Fed. Reg. 4,245 - 4,247?(January 25, 2011). 

Once exposure to herbicide agents has been established, service connection may be granted on a presumptive basis for the diseases listed in?38?C.F.R. §?3.309?(e). Ischemic heart disease is among the diseases listed for which presumptive service connection is available based on in-service herbicide exposure, but optic neuropathy is not.  Notwithstanding the foregoing, the regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38?C.F.R. §?3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21?Vet. App.?120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange).

Service connection for PTSD requires (1) medical evidence establishing a clear diagnosis of the disorder in accordance with?38?C.F.R. §?4.125(a), (2) credible supporting evidence that the claimed in-service stressor occurred, and (2) a link established by medical evidence between the current symptoms and an in-service stressor.?38?C.F.R. §?3.304(f).? 

A diagnosis of PTSD must be established in accordance with 38?C.F.R. §?4.125(a), which provides that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 38?C.F.R. §?3.304(f).  Effective August 4, 2014, the VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5).?See?79 Fed. Reg. 149, 45094.? The provisions of the interim final rule apply to all applications for benefits that are received by the VA or that were pending before the AOJ on or after August 4, 2014.?Id.? The VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014.?See?80 Fed. Reg. 53, 14308 (March 19, 2015).? The?AOJ?certified the Veteran's appeal to the Board in?October?2016, and therefore the use of the DSM-5 is appropriate here.? 

The pertinent regulation provides that, if the evidence establishes that the Veteran engaged in combat with the enemy and that 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. See 38?U.S.C. §?1154 (b); 38?C.F.R. §?3.304 (f)(1). 

For stressors unrelated to combat that are not based on fear of hostile military or terrorist activity, credible supporting evidence is necessary in order to grant service connection. Such evidence may be obtained from service records or other sources. See Moreau v. Brown, 9?Vet. App.?389 (1996). The United States Court of Appeals for Veterans Claims (Court) has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9?Vet. App.?163, 166 (1996). Therefore, the Veteran's lay testimony, is insufficient, standing alone, to establish service connection. Cohen v. Brown, 10?Vet. App.?128, 147 (1997). 

Effective July 13, 2010, 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 that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device (IED); vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or physiological state of fear, helplessness, or horror. See 38?C.F.R. §?3.304 (f)(3). 

The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West,?13?Vet. App.?1, 8?(1999).  In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value.

Service connection must be considered on the basis of the places, types, and circumstances of a veteran's service as shown by his or her service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence.? See 38?C.F.R. §?3.303 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

1.  Entitlement to service connection for multiple myeloma 

The Veteran maintains that his multiple myeloma is due to exposure to herbicide agents in the Korean DMZ. The Board agrees and finds that service connection on a presumptive basis to due herbicide agent exposure is warranted.

With respect to current disability, the AOJ rendered a favorable finding in the November 2019 rating decision that the Veteran has a current disability of multiple myeloma. The Board is bound by this favorable finding. In addition to this evidence, VA and private treatment records indicate a diagnosis and treatment of multiple myeloma. Accordingly, a current disability has been established.

With respect to in-service incurrence, the Board notes that development was conducted through the Records Research Center Response in an effort to confirm whether the Veteran or members of his unit entered the DMZ and/or were exposed to herbicide agents. The Center indicated there was no evidence to support the Veteran's claim. The National Archives and Records Administration (NARA) was unable to locate 1969 unit records submitted by the 24th Psyop detachment or their higher headquarters, the 7th Psyop Group. The United States Army Unit Station List indicated the 24th Psyop Detachment was station in Yongsang, Seoul, Korea and that the 7th Psyop Group was stationed outside of Camp Drake, Japan and conducted operations throughout Southeast Asia. However, records did indicate the 7th Psyop Group maintained detachments in Korea.

The Veteran consistently reported that he worked near the DMZ at the Psyop "B" site during his service in Korea in 1971. In a February 2018 statement, the Veteran explained the Psyop B Site was isolated from the main camp in Seoul and had only four American soldiers stationed there. In an August 2018 statement, the Veteran reported running a radio station called "Voice of America" near the DMZ and reported entering the DMZ monthly to distribute magazines to the children there. Military personnel records confirm the Veteran was part of the 24th Pysop in Korea in May 1971. Additionally, the Veteran provided a copy of a letter mailed to him at the 24th Psyop B Site, as well of photographs of himself at the site. A buddy Statement was also provided by a fellow service member who served at the same location as the Veteran. The service member indicated the photos of the Veteran depict the same location he was stationed at, which was along the DMZ, and corroborated that while stationed there, their job included passing out magazines to Koreans in the DMZ.

The Board has considered the evidence of record, and finds the Veteran consistently and credibly reported that, while stationed in Korea, he traveled into and was stationed along the DMZ. Given the totality of the evidence, which includes the Veteran's consistent and credible statements, photographs, letters, and the lack of contradictory evidence, the Board finds that the most persuasive evidence supports a finding that the Veteran was exposed to herbicides in the Korean DMZ during the relevant time period.  Consequently, the Veteran's exposure to herbicide agents has been established and the in-service incurrence element of this claim is satisfied.?38?C.F.R. §?3.307?(a)(6)(iii). 

Given that multiple myeloma is a disease that is presumed related to herbicide exposure under?38?C.F.R. §?3.307;?3.309(e); and 38?U.S.C. §?1116(a)(2), service connection is warranted on this basis.  As such, service connection for multiple myeloma is granted.?

2. Entitlement to service connection for posttraumatic stress disorder.

The Veteran contends that he has PTSD due to his active-duty service. However, the Board finds that the record does not establish that the Veteran has a diagnosis of PTSD that conforms with the DSM-V. 

In April 2018, a VA examiner concluded that the Veteran does not have a diagnosis of PTSD that conforms with the DSM-V, and instead diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood. During the examination, the Veteran reported symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances; however, the examiner attributed these symptoms to the diagnosis of adjustment disorder and not PTSD.

The Veteran reported two incidents as in service as stressors. The first incident was witnessing child prostitutes, and the second incident was a notification of incoming enemy soldiers which never arrived; however, the examiner concluded that these were not valid stressors to support a diagnosis of PTSD. Additionally, there is no indication of mental health treatment in service treatment records. The examiner opined the Veteran did not have a diagnosis of PTSD and thus provided a negative nexus. This opinion is thorough. The examiner considered the evidence of record and based her opinion on an accurate presentation of the evidence.  Thus, the Board finds that the examiner's opinion is highly probative. 

The Board additionally notes the Veteran has since been service-connected for adjustment disorder with mixed anxiety and depressed mood, thus, the Board does not need to consider entitlement to service connection based on a psychiatric condition other than PTSD. Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (when determining scope of a claim, Secretary must consider" the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim").  

Based on the foregoing, the Board concludes that the evidence is persuasively against the Veteran's service connection claim for PTSD.  Accordingly, the Board finds that entitlement to service connection for PTSD is denied.

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Risley, H.

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.