Citation Nr: 1326912 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-12 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for residuals of a concussion. 3. Entitlement to service connection for a lung disorder, to include bronchiectasis. 4. Entitlement to service connection for a cardiac disorder, to include arteriosclerotic heart disease (ASHD) with angina pectoris. 5. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for residuals of frostbite injuries of the bilateral lower extremities. 7. Entitlement to service connection for erectile dysfunction. 8. Entitlement to special monthly pension based on the need for aid and attendance. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from January 1943 to August 1945. He died in September 2011 and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, and September 2009 and November 2009 rating decisions of the RO in Nashville, Tennessee, denying service connection for multiple disabilities and special monthly pension based on the need for aid and attendance. In November 2011, the appellant requested that she be substituted for the Veteran as his surviving spouse. 38 U.S.C.A. § 5121A (West Supp. 2011). The RO has allowed for the appellant's substitution in the Veteran's case that was on appeal. During the pendency of the appeal, a June 2012 rating decision of the RO in Philadelphia, Pennsylvania, further denied the appellant's claim for service connection for the cause of the Veteran's death. The issues of entitlement to service connection for the cause of the Veteran's death, residuals of a concussion, a lung disorder, a cardiac disorder, a psychiatric disorder, and erectile disorder, as well as entitlement to special monthly pension due to aid and attendance, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT Prior to his death, the Veteran reported incurring frostbite injuries to his lower extremities during the Battle of the Bulge with residuals since service; there is no evidence to the contrary. CONCLUSION OF LAW The criteria for service connection for residuals of frostbite injuries of the bilateral lower extremities have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is evidence that the Veteran engaged in combat, satisfactory lay or other evidence of an injury sustained in the line of such duty shall be accepted as sufficient proof of in-service incurrence if the evidence is consistent with the circumstances of service, even when there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b) (West 2002). The appellant and her representative contend that the Veteran had ongoing residuals since service as a result of his in-service frostbite injuries to both lower extremities during the Battle of the Bulge. Although the Veteran's service treatment records are silent as to any complaints of or treatment for frostbite injuries or residuals, the evidence shows that he served as an infantryman in combat during WWII, received a Purple Heart medal, and participated in the Ardennes campaign, also referred to as the Battle of the Bulge. Prior to his death, the Veteran submitted several written statements indicating that he suffered frostbite injuries to both lower extremities during the Battle of the Bulge, but was not treated for those injuries until many months later when he was hospitalized for other complaints. The Veteran's statements of having incurred frostbite injuries in service are credible and consistent with the circumstances of his service, as indicated in official military records. See 38 U.S.C.A. § 1154(b). In-service frostbite injuries to the lower extremities are conceded. A July 2010 VA treatment record notes the Veteran's statement that in-service frostbite injuries caused the skin on the front of his lower legs to redden. That same month, another VA treatment record notes he had chronic bilateral lower extremity changes status post remote trauma. A subsequent February 2011 VA treatment record indicates the Veteran had a moderate amount of chronic skin disease changes due to poor circulation and previous frostbite. A July 2011 VA medical record also notes that the Veteran had chronic skin damage from previous frostbite in service and shows an assessment of frostbite to the feet. The evidence of record further indicates that the Veteran worked as a printer prior to his retirement in 1974 due to his heart disease. The 2010 and 2011 VA treatment records are sufficient medical evidence of a link between the Veteran's conceded in-service frostbite injuries to the lower extremities and his objectively observed skin damage to the lower extremities prior to his death. There is no evidence of any intercurrent injury or disease and there is no medical opinion of record contradicting the proffered assessments. Thus, any doubt in this instance must be resolved in the appellant's favor. Service connection is warranted for residuals of frostbite injuries of the lower extremities. ORDER Service connection for residuals of frostbite injuries of the bilateral lower extremities is granted. REMAND In a June 2012 rating decision, the RO denied the appellant's claim for service connection for the cause of the Veteran's death. Her VA Form 9, received in July 2012, is construed as disagreement with the June 2012 rating decision. As the RO has not as yet issued a statement of the case addressing the claim, it is remanded for issuance of such. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). Although VA notified the appellant in an April 2013 letter of her qualification as a substitute claimant, she was not advised that, unlike in accrued benefits claims, in substitution claims, the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any pertinent, additional evidence; nor was she provided the opportunity to submit further evidence or notify VA of such evidence. 38 U.S.C.A. § 5121A (West 2012). With regard to the claim for service connection for a respiratory disability, prior to his death, the Veteran submitted several written statements that he had been treated in military hospitals for several disabilities that included problems with his lungs. In an August 2009 written statement he indicated that he was evacuated to a military hospital for symptoms that included coughing up blood. A July 1945 service treatment record shows the Veteran was hospitalized for a respiratory disease manifested by the presence of an infiltration in the right lung. A June 2007 VA treatment record shows the Veteran was diagnosed with hemoptysis with right lung infiltrates. A July 2010 VA treatment record further notes the Veteran's history of sporadic hemoptysis since 1945. The Veteran was not afforded a VA respiratory examination prior to his death and there are no medical opinions of record addressing the etiology of his respiratory disability and the evidence of right lung infiltrates in service. The Veteran was afforded a VA psychiatric examination in December 2008, at which time the examiner determined that he did not have symptoms that met the criteria for a psychiatric diagnosis, to include PTSD. However, the examiner did not comment on a July 1944 service hospital record indicating the Veteran was hospitalized for treatment of a psychoneurosis, or VA treatment records dated as early as 1958 noting his nervousness. Likewise, the examiner did not address several VA treatment records noting the Veteran's stated history of having had a "nervous breakdown" in 1945. Since the time of the December 2008 VA psychiatric examination, a September 2010 VA treatment record shows he had a positive screen for PTSD. Moreover, the VA examiner conducting the September 2011 examination for housebound or need for regular aid and attendance status, diagnosed the Veteran with severe PTSD. A new opinion must be obtained considering the evidence subsequent to the December 2008 examination. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant a statement of the case on the claim for the cause of the Veteran's death. The claim should be returned to the Board only if the appellant files a timely substantive appeal. 2. Provide the appellant notice of the laws, regulations, and evidence necessary to substantiate her claims of entitlement to service connection for residuals of a concussion, a respiratory disorder, to include bronchiectasis, CAD, and a psychiatric disorder, to include PTSD, as well as the claim for special monthly pension based on need for aid and attendance. Ask the appellant to identify or submit pertinent evidence in support of her claims not already of record. 3. Obtain an opinion from a VA pulmonologist regarding the Veteran's diagnosed bronchiectasis and hemoptysis. The claims files and a copy of this remand must be made available to and reviewed by the physician. The physician must describe and diagnose the manifestations of any respiratory disability found to be present at any time prior to the Veteran's death. The physician must also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed respiratory disability had its onset during active service or is related to such service. The physician must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The physician must comment on the July 1945 service hospital record showing the Veteran was hospitalized in part for a respiratory disease manifested by a right infiltration of the right lung. The physician must also comment on the medical evidence of record noting the Veteran's history of having sporadic episodes of hemoptysis since 1945. 4. Obtain an opinion from a VA psychiatrist/psychologist regarding the Veteran's alleged psychiatric disorder, assessed as PTSD during a September 2011 VA examination. The claims file and a copy of this remand must be made available to and reviewed by the psychiatrist. The physician must describe and diagnose the manifestations of any psychiatric disorder found to be present at any time prior to the Veteran's death. The physician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder had its onset during active service or is related to such service. The physician must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The physician must comment on the September 2011 VA examination report and the record showing the Veteran was hospitalized in July 1944 for diagnosed psychoneurosis. The physician must also comment on the medical evidence of record noting the Veteran's history of having had a "nervous breakdown" in 1945, as well as a September 2010 VA treatment record indicating a positive screening for PTSD. 5. Thereafter, undertake any further development necessary. 6. Then, readjudicate the appeal. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs