Citation Nr: 24029921 Decision Date: 09/06/24 Archive Date: 09/06/24 DOCKET NO. 20-25 596A DATE: September 6, 2024 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Severance being improper, restoration of service connection for angina pectoris is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his PTSD is related to a verified stressor during service in the Republic of Vietnam. 2. The evidence of record does not show that the April 2015 rating decision granting service connection for angina pectoris was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The severance of service connection for angina pectoris was improper; the criteria for restoration of service connection for angina pectoris have been met. 38 U.S.C. § 5112; 38 C.F.R. §§ 3.12, 3.103, 3.105, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2022, the Veteran's representative submitted a statement that the Veteran would like to withdraw his hearing request. See September 2022 third party correspondence. There are no additional hearing requests in the record; therefore, the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704(e). The Board notes the Veteran's representative submitted a waiver of RO consideration of any documents submitted after the last adjudication. See December 2022 Third Party Correspondence. Accordingly, the Board finds no need to remand for initial RO consideration of the evidence submitted since the April 2020 Statement of the Case. 38 C.F.R. § 20.1305. The Board notes the Veteran filed a claim for service connection for PTSD in December 2014. The AOJ denied the claim in an April 2015 rating decision. In a June 2015 rating decision, the RO denied the Veteran's claim to service connection for PTSD, finding that the record did not demonstrate the Veteran had a diagnosis of PTSD. The Veteran filed a Notice of Disagreement (NOD), and the RO continued the denial of the Veteran's claim in a February 2017 SOC based on a finding that the Veteran's stressor, related to service in the Republic of Vietnam, was not corroborated. The RO determined there was insufficient evidence of record to corroborate the stressful event and send to the US Army and Joint Services Records Research Center, Marine Corps, or National Archives and Records Administration (NARA) to search for records. The Veteran did not file a timely substantive appeal within 60 days of the February 2017 SOC. In the April 2018 rating decision on appeal, the RO denied reopening the Veteran's claim to service connection for PTSD based on a finding that new and material evidence had not been received. In an April 2020 SOC, the RO continued denial of reopening the Veteran's claim to service connection for PTSD. The Board notes the RO denied reopening based on finding that there was no new and relevant evidence submitted in the April 2020 SOC. However, service department records from the Veteran's military service were associated with the claims in July 2019. Specifically, the Veteran's unit command chronology history was received from the NARA and associated with the claims file. These later-obtained service department records are relevant to the present appeal as they pertain to the in-service stressor and were not considered at the time of the prior February 2017 SOC. See Kisor v. Wilkie, 969 F.3d 1333, 1339 (Fed. Cir. 2020). As a result, the February 2017 decision is not final, and the Veteran's claim must be adjudicated on a de novo basis rather than on the basis of whether new and material evidence has been received. See 38 C.F.R. § 3.156(c). As such, the Board has recharacterized the issue, and the claim will be adjudicated on a de novo basis. Entitlement to service connection for PTSD. The Veteran seeks service connection for PTSD. See December 2014 and October 2017 VA Forms 21-526. The Veteran contends that his PTSD is related to in-service stressors, including 1) shooting a child in the face while on a courier supply run to the Republic of Vietnam from Okinawa; and 2) violence that occurred while he was stationed in Puerto Rico. See February 2016 statement in support of claim. Service connection may be granted for disability from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a)(i.e., under the criteria of DSM-5); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In this case, the Veteran was initially provided a VA examination in April 2015. The VA examiner determined the Veteran did not have a diagnosis for PTSD. See April 2015 VA examination. However, the Veteran's VA treatment records demonstrate the Veteran was diagnosed with PTSD. See December 2015, January 2016, and May 2016 VA treatment records. VA treatment records since that diagnosis have continued to demonstrate the Veteran has a diagnosis of PTSD and is receiving treatment. It is presumed that the mental health professionals who have diagnosed PTSD have done so with the knowledge of the DSM criteria. Additionally, the Veteran provided private medical opinions demonstrating the Veteran has a current diagnosis of PTSD. See September 2011 (received June 2015), and January 2016 private medical opinions. As such, the April 2015 VA examination is inadequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Therefore, resolving any reasonable doubt in the Veteran's favor, the Board finds that the requirement of a current diagnosis of PTSD has been satisfied. 38 C.F.R. § 4.125(a). In regard to the Veteran's stressor, he contends he had service in the Republic of Vietnam. The Veteran asserted his duties included delivering supplies to the Republic of Vietnam while he was stationed in Okinawa. See February 2016 statement in support of claim. He asserted that, in March 1968, he was delivering supplies and came across a boy about the age of 6 who approached the truck he was on with what looked like a grenade. Id. He asserted that he pointed a gun in the child's face and squeezed the trigger. Id. As noted, the RO initially determined that the evidence of record was insufficient to find that the Veteran had service in the Republic of Vietnam and determined there was insufficient evidence to submit a request to corroborate his service to the JSRRC, Marine Corps, or NARA records. See February 2017 VA Memo. However, the Board finds that the evidence or record supports the Veteran's contentions regarding the traumatic experience that occurred during his active duty service in Vietnam. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In that regard, the Veteran's DD Form 214 notes the Veteran's military occupational specialty as supply admin man. The Veteran received the Vietnamese Campaign Medal with 1 star. The Veteran's military personnel records confirm that the Veteran arrived in Okinawa in February 1968 and departed in March 1969. While stationed in Okinawa, the Veteran was assigned to the Headquarters and Service (H&S) Company, Supply Battalion, 3d Force Service Regiment (FSR) as confirmed by his military personnel records. The command chronologies received in July 2019 for the H&S Co., Supply Battalion, 3d FSR notes that enlisted TAD (temporary additional duty) included Republic of Vietnam courier run and notes a number of 18 during the month of March 1968. The Veteran is competent to report about the circumstances of his service. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The specific circumstances of service must be considered, as demonstrated by service records and other evidence. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a)(each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The Court has also held that the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016). As such, the Board finds the Veteran's statements consistent with the places, types, and circumstances of his service that is generally consistent with his military personnel records and unit command chronology history. Therefore, resolving any doubt in the Veteran's favor, the Board finds the Veteran had service in the Republic of Vietnam. In regard to the third element of service connection, the Veteran provided a January 2016 private medical opinion. The private psychologist noted the Veteran's report regarding the stressor involving the incident that occurred in Vietnam, and noted the Veteran has been haunted by vivid nightmares, cognitive intrusions, profound anxiety, and inability to sleep for decades. See January 2016 private medical opinion. The private psychologist noted that the Veteran's current symptoms are unmistakably associated with one or more of the traumatic exposures and concluded that the Veteran's PTSD is severe and chronic and directly the result of his service. Id. The Board finds that the January 2016 private medical opinion is adequate for appellate review, and there is no evidence to the contrary as the April 2015 VA examination is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 302. Additionally, the Veteran's VA treatment records indicate the Veteran's PTSD is related to his reported stressor of the incident that occurred in Vietnam. See December 2015 and January 2016 VA treatment records. As such, the Board finds that Veteran's PTSD diagnosis is related to hostile military activity stressors consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3). Accordingly, and resolving reasonable doubt in the Veteran's favor, the Board finds that his PTSD is related to a stressor event in service and that service connection for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Whether severance of service connection for angina pectoris was proper. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). VA must assure both that due process has been observed in the process of severance and that CUE exists in the award of service connection. Due Process When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). The initial question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The RO originally granted service connection for angina pectoris as directed related to the Veteran's active duty service on the basis of presumption in an April 2015 rating decision. In November 2016, the RO proposed to sever service connection for angina pectoris based on a finding that the Veteran did not serve in the Republic of Vietnam, and the finding that the presumption of service connection due to exposure to herbicide agents was applicable in the April 2015 rating decision was a clear and unmistakable error. The RO informed the Veteran he had 60 days to provide evidence refuting the determination or request a personal hearing within 30 days. The Veteran requested a predetermination hearing in December 2016. A hearing was held in August 2017. The Veteran asserted that he did have service in Vietnam as his duties included delivering supplies to Vietnam. See August 2017 hearing testimony. In an April 2018 rating decision, the RO severed service connection for angina pectoris, effective July 1, 2018, more than 60 days of the last day of the month in which a 60-day period from the date of the April 2018 notice expired. Thus, all due process requirements were met in the severance of service connection for angina pectoris. 38 C.F.R. § 3.105(d). Severance Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for angina pectoris was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was improper because the finding that the Veteran served in Vietnam was not a clear and unmistakable error. To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007) (internal citations omitted). A clear and unmistakable error is one about which reasonable minds could not differ. 38 C.F.R. § 3.105(a)(1)(i). In most respects, the CUE standard for severing service connection under 38 C.F.R. § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a); Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that post-date the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Additionally, a Veteran who, during active military, naval, or air service, served 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 such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Ischemic heart disease is on the list of enumerated diseases. Id. As discussed above, the Board finds that the Veteran had the requisite service in the Republic of Vietnam. The Veteran's heart disability, angina pectoris, qualifies within the generally accepted medical definition of ischemic heart disease. See April 2015 VA examination. As the Board has found that the Veteran served in-country in the Republic of Vietnam, the Board concludes that the criteria for service connection for angina pectoris, as presumptively due to in-service herbicide agent exposure, are met. Notably, this is not a claim of service connection be evaluated as to whether the claim should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the evidence persuasively weighs against the claim. In this matter, the standard employed is whether there is "clear and unmistakable evidence" of an error. Here, the Veteran has credibly and competently report that he was in the Republic of Vietnam, supported by the evidence of record, and was therefore exposed to herbicide agents. The Board cannot conclude that the grant of service connection for angina pectoris was the kind of error that, when called to the attention of reviewers, compels the conclusion to which reasonable minds could not differ and that the results would be manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In the context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. The Board finds that the grant of service connection for angina pectoris was not clearly and unmistakably erroneous. Accordingly, the severance of service connection for angina pectoris was improper and restoration of service connection is warranted. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.