Citation Nr: 20007329 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-54 967 DATE: January 28, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and an anxiety disorder, not otherwise specified (anxiety), is granted. REMANDED Entitlement to service connection for a right elbow injury is remanded. Entitlement to service connection for ischemic heart disease, as secondary to his Korean war experiences, is remanded. FINDING OF FACT The Veteran's acquired psychiatric disorder, to include, PTSD and anxiety, are related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include, PTSD and anxiety, are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who served on active duty in the United States Army from October 1950 to August 1952, died in January 2018. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Of note, the appellant was scheduled to testify in front of a Veterans Law Judge but failed to report. The Veteran, before he passed, was scheduled to appear at a hearing, per his November 2016 VA Form 9. The appellant’s substitution status allowed her to take the place of the Veteran for his hearing. She received a letter notifying her of her hearing date and what would happen if she failed to report and explained how to obtain another hearing. See January 2019 Correspondence. She did not report for the hearing and did not file a motion for a new hearing date, thus her hearing request is considered withdrawn. 38 C.F.R. § 20.704 (d). Also, of note, the appellant filed a claim for dependency and indemnity compensation (DIC) and death pension. See April 2018 VA Form 21P-534EZ. A June 2018 rating decision denied service connection for cause of death. The decision was not appealed. That same month, the appellant was awarded Survivor’s pension. See June 2018 VETSNET Award Print. Therefore, entitlement to accrued benefits is the only DIC claim before the Board. Additionally, the Board has recharacterized the psychiatric claim as reflected on the title page to include consideration of all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and an anxiety disorder, not otherwise specified (anxiety), The Veteran asserts that his anxiety and PTSD are due to his Korean war experiences. As the below discussion is favorable in relation to in-service events experienced by the Veteran, no other theories of entitlement will be addressed. Service connection generally may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran has current diagnoses of PTSD and anxiety, satisfying element one of service connection. See July 2011 Vet Center letter; December 2010 VA-contracted examination. Regarding element two, in-service incurrence of a disease or injury, the Veteran's available service treatment records (STRs), which includes his enlistment examination, are silent for complaints, treatment, or diagnoses of PTSD, anxiety, or any other psychiatric disorder. However, the Board acknowledges that the majority of the Veteran's STRs and a portion of his service personnel records are not available for review because they were destroyed in the 1973 fire at the National Personnel Records Center. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this regard, the Board acknowledges the Veteran's assertion that his psychiatric disorder had its onset during service due to his Korean war experiences. The Veteran states that he was in Korea (which is conceded by the RO), and that he served 8 months on the front lines with B company, 35th Battalion which was attached to the 25th division on the 38th parallel. See February 2010 VA Form 21-4138. He stated that in 1952 he was sent to Japan and was given the job of cleaning the dead bodies and disposing of all of their clothes and personal belongings. Id. The Board finds the Veteran's statements regarding those experiences credible, competent, and consistent with the circumstances of his military service, particularly given the findings of the VA examiner, discussed below; thus, an in-service event is conceded. 38 U.S.C. § 1154 (a). Therefore, in accordance with VA's heightened duty to consider the benefit of the doubt rule, element two is also established. Regarding the final element of the claim, nexus, there are seemingly conflicting opinions. There is a Vet Health clinical social worker who opines that the Veteran has a diagnosis of PTSD and presents with symptoms of recurrent and intrusive distressing recollections about traumatic events that occurred in combat zone; recurrent distressing dreams of the event, persistent avoidance of stimuli associated with the trauma; depressive symptoms; general state of anxiety; and other symptoms as well. See July 2011 Vet Center letter. Conversely, there is a VA-contracted examiner who provides a diagnosis of anxiety disorder, not otherwise specified, and read liberally, relates that diagnosis to the Veteran’s trauma exposure when the examiner states that the Veteran’s stressor is related to his anxiety disorder. Importantly, both specialists find that his symptoms relate to the trauma he incurred during service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010). Thus, having all three elements established, service connection for an acquired psychiatric disorder, to include, PTSD and anxiety is granted. REASONS FOR REMAND 2. Entitlement to service connection for a right elbow injury is remanded. The Veteran contends that during his time in Korea in 1952, he hurt his elbow when he slipped on the ice trying to escape heavy enemy fire by running into a nearby bunker. See February 2010 VA Form 21-4138. VA treatment records indicate that the Veteran has arthralgia. See June 2013 VA treatment record. An examination is needed on remand, as one has not been afforded to the Veteran, to see if there is a current diagnosis for the Veteran’s symptoms of pain and if that diagnosis is related to the Veteran’s service. 3. Entitlement to service connection for ischemic heart disease, as secondary to his Korean war experiences, is remanded. An examination is needed to see if the Veteran’s ischemic heart disease is related to his service-connected anxiety. Id. The matters are REMANDED for the following action: 1. Forward the claims file to a competent expert to determine the nature and etiology of any elbow disability found to be present in the Veteran’s records. For each right elbow disability diagnosed, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the elbow disability had its onset during active duty or is otherwise related to the Veteran’s service. In addressing this question, the examiner should accept as true the Veteran’s competent and credible report that he fell on ice injuring his elbow during his time in service. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 2. Then forward the claims file to a competent expert to determine the nature and etiology of any current ischemic heart disease. The claims file should be made available to and should be reviewed by the examiner. Following a review of the claims file, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder: (a) had its onset during active duty or is otherwise related to the Veteran’s service; or (b) is proximately due to his service-connected acquired psychiatric disorder; or (c) has been aggravated (worsened beyond natural progression) by his service-connected psychiatric disorder. The examiner should note that it is not necessary that his psychiatric disorder be service-connected, or even diagnosed, at the time the ischemic heart disease is incurred, and reliance on this fact will render the opinion inadequate. If the examiner is unable to provide any requested opinion, he or she should offer a rationale for reaching that conclusion. 3. After undertaking any additional development deemed appropriate and giving the appellant full opportunity to supplement the record, adjudicate the pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, Associate 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.