Citation Nr: 21003097 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-27 482 DATE: January 19, 2021 REMANDED Entitlement to service connection for a right foot disability, to include osteomyelitis and partial foot amputation, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder and posttraumatic stress disorder (PTSD), is remanded. Entitlement to special monthly compensation based on housebound status or the need for aid and attendance is remanded. Entitlement to service connection for squamous cell carcinoma of the mouth is remanded. Entitlement to service connection for liver cancer, diagnosed as hepatocellular cancer, is remanded. Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1961 to August 1966. The Veteran died in February 2013, and the appellant is the Veteran’s surviving spouse. In October 2019, the appellant was recognized as the substituted claimant. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) located in Milwaukee, Wisconsin. The VA Regional Office (RO) in Montgomery, Alabama, otherwise has jurisdiction of the appellant’s claims. In May 2017, the appellant and a friend provided testimony during a Travel Board hearing conducted at the RO by the undersigned Veterans Law Judge (VLJ). In its July 2020 decision and remand, the Board denied the claim of entitlement to compensation for the cause of the Veteran’s death under 38 U.S.C. § 1151. It remanded the claim of entitlement to service connection for the cause of the Veteran’s death. On remand, an VA additional medical opinion was obtained with respect to the 38 U.S.C. § 1151 claim, and this theory was discussed in the August 2020 supplemental statement of the case. As noted above, however, the Board had already denied the claim of entitlement to compensation for the cause of the Veteran’s death under 38 U.S.C. § 1151. Therefore, that claim is already subject to a final Board decision, and it is not before the Board. 1. Entitlement to service connection for a right foot disability, to include osteomyelitis and partial foot amputation, is remanded. The appellant contends that service connection is warranted for the Veteran’s right foot disability. She essentially contends that his right foot disability is related to a foreign body that was excised from the Veteran’s right foot during service. At her Board hearing, the appellant agreed with her representative’s articulation of her belief that the Veteran’s in-service surgery caused “chronic inflammation and fibrosis, and that’s referred to the osteomyelitis that we’re talking about right now.” (See Board hearing transcript, page 4.) She reported that, over the years, the Veteran rounded his foot from heel to toe when he walked. She stated that the ball of the Veteran’s foot was sore “and he would get a callus-like, that would puss-up.” (See Board hearing transcript, page 5.) She described that he would repeatedly have to go to VA to have the callus debrided and bandaged up, but that the problem would recur three to six months later. She reported that this pattern repeated itself for 40 years. The Veteran’s service treatment records reflect that the Veteran’s feet were clinically normal when examined at the times of July 1961 enlistment, August 1963 separation-reenlistment, and June 1966 separation examinations. He expressly denied any history of, or current, foot trouble on his July 1961 enlistment, August 1963 separation-reenlistment, and June 1966 separation medical history reports. A November 1963 service treatment record reflects that the Veteran had been experiencing difficulty with his “Rt med foot” for several months and that an excision was performed. One week later, it was noted that the Veteran’s foot was healing well and that sutures had been removed. A December 1963 tissue examination report notes that the Veteran has had a “Foreign body” “in right med side of foot several months.” A microscopic diagnosis notes “[c]hronic inflammation and fibrosis.” In 2010, an x-ray was performed, and a bone spur was found. The bone spur was addressed, and his foot became infected in 2010. He had to have the toe removed. His foot subsequently developed additional difficulties, and he had to have half of the right foot amputated. The Veteran’s VA medical records reflect that his foot amputations were due to complications of diabetes. However, the appellant contends that the Veteran’s amputations were due, at least in part, to the in-service foot complaints. Part of the appellant’s rationale was that the osteomyelitis would recur in the same spot over the years. During her Board hearing, the appellant concurred with the undersigned’s characterization that “he, basically, was, kept having this sore return or, over and over again, and that it somehow was the precursor to ultimately becoming another infection that caused the amputation.” (See Board hearing transcript, page 10.) In July 2020, the Board remanded this claim for an etiology opinion. In an August 2020 opinion, a VA examiner diagnosed “bilateral foot peripheral neuropathy” and “right hallux ulceration with osteomyelitis treated with first ray amputation in the years prior to his death.” The examiner opined that it was less likely than not that either of these disabilities originated during service or was otherwise caused or aggravated beyond normal progression by service. In its July 2020 remand, the Board had directed that “The examiner should … consider the appellant’s hearing testimony, in which she noted that, over the years, the same spot on the Veteran’s right foot would form a callus and fill with pus. The callus would have to be debrided and bandaged up, but it recurred in the same spot three to six months later.” The Board notes that this testimony was not expressly discussed in the August 2020 VA examination report. Therefore, a remand is necessary in order to obtain a medical opinion that addresses this testimony. The Board also notes that the August 2020 medical opinion states that the “Body of evidence (4/25/12) reports the Veteran’s 1963 foreign body injury involved his proximal (hind) foot whereas his ulceration with osteomyelitis involved his distal (fore) foot.” (This information comes from the April 2012 VA examination report, which notes that “approx. 1963, he was on the field and injured his foot and had a foreign body that was removed surgically, this was in hind foot, close to the arch.” It notes that, “in 1990’s [the Veteran] developed ulcer in his foot and had amputation of right great toe. [T]hen in [F]eb, 2011, amputation of right mid foot due to diabetic ulcer. [S]tates he has had diabetic ulcers off and on since 1990’s.”) The April 2012 VA examiner’s basis for describing the foreign body as having been located “in hind foot, close to the arch,” is unclear. Rather, it appears that the foreign body may have been located in the middle area of the Veteran’s foot. As noted above, the claims file contains a November 1963 service treatment record that notes that the Veteran had been experiencing difficulty with his “Rt med foot” for several months and that an excision was performed. One week later, it was noted that the Veteran’s foot was healing well and that sutures had been removed. A December 1963 tissue examination report notes that the Veteran has had a “Foreign body” “in right med side of foot several months.” A microscopic diagnosis notes “[c]hronic inflammation and fibrosis.” On remand, the examiner should discuss whether the foreign body was, in fact, in the middle area of the Veteran’s right foot rather than in the hind area. If the examiner determines that the foreign body was, in fact, located in the middle area, the examiner should discuss whether this information influences his or her opinion. This claim is therefore remanded to obtain an addendum opinion that addresses (1) the appellant’s lay testimony and (2) the information in the service treatment records regarding the location of the foreign body that was embedded in the Veteran’s right foot during service. 2. Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder and PTSD, is remanded. 3. Entitlement to special monthly compensation based on housebound status or the need for aid and attendance is remanded. In relevant part, the Veteran suggested that he experienced depression because of his right foot condition. (See, e.g., July 2011 personal statement.) The Veteran also claimed that he was housebound or required the aid and attendance of another person because of his right foot condition. (See, e.g., July 2011 personal statement.) The Board will defer consideration of these claims, as they are inextricably intertwined with the right foot disability claim that is being remanded above. 4. Entitlement to service connection for squamous cell carcinoma of the mouth is remanded. 5. Entitlement to service connection for liver cancer, diagnosed as hepatocellular cancer, is remanded. 6. Entitlement to service connection for the cause of the Veteran’s death is remanded. The record establishes that the Veteran’s cirrhosis of the liver was caused by alcohol abuse. A November 2012 VA anesthesia record shows that the Veteran had “ETOH Cirrhosis dx ’95. Liver cancer- chemo stopped.” “Alcoholic Liver Cirrhosis” is listed on his death certificate as an immediate cause of his death. The appellant has requested entitlement to service connection for squamous cell carcinoma of the mouth. An April 2020 VA medical examiner’s opinion notes that “Squamous cell carcinoma is the most common malignancy of the oral cavity. Most common risk factors related to this malignancy [are] long term tobacco and alcohol consumption, which is documented in [the Veteran’s] records.” In relevant part, service connection may be warranted for an alcohol abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claimant may only be compensated for a substance abuse disability where there is “clear medical evidence” establishing that the alcohol abuse disability is caused by a primary service-connected disability, and where the alcohol abuse disability is not due to willful wrongdoing. Id. It is unclear in this case whether the Veteran’s alcohol abuse was aggravated by his depression. Given that the Veteran’s claim of entitlement to service connection for an acquired psychiatric disability is being remanded, the Board will defer consideration of the claims involving liver cancer, oral cancer, and service connection for the cause of the Veteran’s death as inextricably intertwined with the acquired psychiatric disability claim. The matters are REMANDED for the following action: 1. Send the claims file to a qualified examiner to obtain an addendum to the August 2020 VA medical opinion. The claims file must be made available to and reviewed by the examiner. The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the diagnosed “right hallux ulceration with osteomyelitis treated with first ray amputation in the years prior to his death” originated during or is otherwise caused or aggravated by service. In providing this opinion, the examiner should address two potential inadequacies in the August 2020 opinion: a. The August 2020 VA examination report states that the “Body of evidence (4/25/12) reports the Veteran’s 1963 foreign body injury involved his proximal (hind) foot whereas his ulceration with osteomyelitis involved his distal (fore) foot.” However, the service treatment records that address the right foot injury reflect that the Veteran had been experiencing difficulty with his “Rt med foot” for several months and that he had a foreign body “in right med side of foot several months.” (See November 1963 and December 1963 service treatment records.) The examiner should discuss whether the evidence indicates that the foreign body was located in the proximal or the middle foot. If the examiner determines that the foreign body was, in fact, located in the middle area, the examiner should discuss whether this information influences his or her opinion. b. The examiner should discuss the appellant’s hearing testimony, in which she noted that, over the years, the same spot on the Veteran’s right foot would form a callus and fill with pus. The callus would have to be debrided and bandaged up, but it recurred in the same spot three to six months later. A complete rationale for all opinions should be provided, including discussion of the facts of this case and pertinent medical principles. 2. Following completion of the above, readjudicate the issues on appeal, including the claims of entitlement to service connection for an acquired psychiatric disability; entitlement to a special monthly compensation based on housebound status or the need for aid and attendance; entitlement to service connection for squamous cell carcinoma of the mouth; entitlement to service connection for liver cancer; and entitlement to service connection for the cause of the Veteran’s death. If any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.