Citation Nr: 21004949 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-08 772 DATE: January 28, 2021 ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a stomach disability (exclusive of residuals of a gallbladder removal) is denied. REMANDED Entitlement to an acquired psychiatric disability (exclusive of posttraumatic stress disorder (PTSD)), including major neuro-cognitive disorder and major depressive disorder (MDD), including as secondary to service-connected tinnitus and bilateral hearing loss, is remanded. Entitlement to service connection for hypertension, including as secondary to an acquired psychiatric disability is remanded. Entitlement to service connection for a heart disability, including coronary artery disease (CAD), as secondary to hypertension and an acquired psychiatric disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to the Veteran’s death, his then-current bilateral shoulder degenerative arthritis was not related to service. 2. Prior to the Veteran’s death, his then-current stomach disability (other than gallbladder removal residuals) was not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a stomach disability (exclusive of residuals of a gallbladder removal) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1945 to August 1946. He was a World War II Veteran, with service in the Asian-Pacific Campaign. He died in August 2019. The appellant is his surviving spouse. This appeal arises from an August 2012 rating decision, denying service connection for bilateral shoulders, heart condition, hypertension, depression, and a stomach condition, as well as a TDIU. Prior to his death, the Veteran testified at a Board videoconference hearing in August 2013, before a former Veterans Law Judge (VLJ). A transcript is of record. In April 2016, the Veteran was notified that the VLJ who conducted the August 2013 hearing was no longer available to participate in a decision in his appeal. The Veteran was provided the opportunity to testify at another hearing but he did not respond to the letter. As the Veteran did not seek another hearing, the Board proceeds to address the claims on appeal. In September 2013, July 2016 and April 2018, the Board remanded the case to the AOJ for additional development and consideration. The September 2013 Board decision denied service connection for PTSD. As such the Board has characterized the issue of entitlement to service connection for depression as entitlement to service connection for an acquired psychiatric disorder, exclusive of PTSD, but including MDD and a major neuro-cognitive disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The April 2018 Board decision also denied service connection for residuals of a gallbladder removal. So, the present appeal for a stomach condition is exclusive of residuals of a gallbladder removal. In September 2019, the Board dismissed the bilateral shoulders, heart condition, hypertension, depression, and a stomach condition, and TDIU claims, as the Veteran had died during the pendency of the appeal. However, following the Veteran’s death, the surviving spouse submitted a September 2019 request for substitution of the claimant, so that the appellant’s claim is based on an application for substitution under 38 U.S.C. § 5121A (in contrast to a claim for accrued benefits under 38 U.S.C. § 5121). Notably, the AOJ’s July 2020 rating decision granted the appellant’s claim for service connection for the cause of the Veteran’s death, recognizing the Veteran’s service-connected tinnitus as a cause of death. Service Connection 1. Entitlement to service connection for a left shoulder disability 2. Entitlement to service connection for a right shoulder disability Prior to his death, the Veteran asserted that he had a long history of shoulder problems since his service in World War II. In particular, he asserted that while serving at Iwo Jima, albeit not in combat, his duties, lifting heavy boxes and crates, ruined his shoulders. See September 2011 Veteran’s statement; and August 2013 Board hearing transcript, at 4-6. At the outset, it is noted that the criteria for presumptive service connection have not been met. The record does not show that arthritis of the shoulders was diagnosed, much less manifested to a compensable degree during service or within a year after discharge. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The record shows diagnoses of bilateral shoulder disability, of degenerative arthrosis, rotator cuff sprain, bicipital tendinosis, per the July 2014 VA examination. Per the August 2017 VA examination, based upon X-ray testing, bilateral degenerative arthritis was diagnosed. As to in-service incurrence, the National Personnel Records Center (NPRC) provided a May 2012 response that indicated the Veteran’s service treatment records were destroyed by fire; and the Veteran was accordingly notified of the fire-related destruction of service treatment records. Therefore, further attempts would be futile. No presumption, however, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). Nonetheless, the Veteran’s August 1946 separation examination is associated with the claims file, and shows no musculoskeletal defects, and otherwise does not indicate any in-service shoulder injury or diagnosis of any shoulder disability. Additionally, there is no medical opinion evidence that relates the Veteran’s bilateral shoulder disability to service or any events of service. There is highly probative medical opinion evidence against the claim provided by the September 2014 VA examiner, and by the August 2017 VA examiner with a June 2019 addendum opinion. In particular, the Board finds the June 2019 VA examiner’s medical opinion to be highly probative evidence against the claim. The June 2019 VA examiner opined that the bilateral shoulder degenerative arthritis was less likely than not incurred in or caused by service. The examiner’s rationale considered the Veteran’s assertions of in-service shoulder problems from lifting and carrying heavy boxes and equipment, but noted that there was no evidence of injury on the August 1946 separation examination. Moreover, the June 2019 VA examiner’s opinion instead reasoned the bilateral shoulder disability was age-related and that his greatest risk factor for his bilateral shoulder osteoarthritis was his active use of the shoulders for 36 years of post-service work for a rural electrical service. Given the VA examiners’ review of the claims file, and discussion of the rationale of the opinion, the Board finds the VA examiners’ opinions are highly probative evidence against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). The Board acknowledges the Veteran’s and appellant’s lay statements that this current bilateral shoulder disability is related to in-service shoulder problems, but he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges his lay statements that he has had a long history of post-service shoulder pain, which he is competent to assert since it is within the realm of lay observation. However, his assertion is vague as to whether he has had a continuity of shoulder problems since service. His statements are also contradicted by the service separation examination that shows no indication of shoulder problems or injuries. Moreover, his personal hearing testimony indicates he admitted he started having shoulder pain post-service when working for a power company putting together power poles. See August 2013 Board hearing transcript, at 8. Thus, the Board finds the Veteran’s lay statements, concerning the history of his shoulder disorder symptoms, are not credible, and thus not probative in support of the shoulder claims. The Board finds that the probative and persuasive evidence weighs against onset in, continuity since, or attribution to, the Veteran’s active duty military service. The Board concludes the evidence does not support the claim for service connection and there is no doubt to be otherwise resolved. As such, the claim of entitlement to service connection for a bilateral shoulder disability is denied. 3. Entitlement to service connection for a stomach disability (exclusive of residuals of gallbladder removal) Prior to his death, the Veteran testified to a history of upset stomach beginning in World War II, from not having anything but cold storage turkey to eat as well as greasy food. See August 2013 Board hearing transcript. He stated that he has had a long history of heartburn and stomach problems that started while he was in Iwo Jima. See September 2011 Veteran’s statement. Prior to his death, the Veteran had a current stomach disability (other than residuals of a gallbladder removal). The Veteran was hospitalized at a private facility for intractable diarrhea in December 2005, and biopsies revealed mild chronic antral gastritis and mild chronic esophagitis. His medical treatment records also indicate he was diagnosed with gastroesophageal reflux disease (GERD). Regarding in-service incurrence, as mentioned, only the August 1946 separation examination report is available for consideration of his service treatment records. The August 1946 separation examination is unremarkable for any indication of in-service treatment or diagnosis of stomach problems, and found a normal abdominal wall and viscera. There is also no medical opinion evidence that related the Veteran’s diagnosed gastritis and esophagitis to service, even upon consideration of his assertions of in-service stomach problems and heartburn. However, there is highly probative medical opinion evidence against the claim provided by the June 2019 VA examiner’s opinion report, finding that that the Veteran’s stomach disability (other than gallbladder disability) was less likely than not incurred in or caused by service. The examiner reasoned that though the Veteran reported symptoms of heartburn and stomach problems during active duty from 1945-1946, there is no evidence of a diagnosed gastrointestinal disorder or evidence of a disabling stomach condition until the [2005] hospital admission 60 years after his period of active service. The examiner also cited that the discharge examination showed a normal abdominal wall and viscera examination. Given the VA examiner’s review of the claims file, and discussion of the rationale of the opinion, the Board finds the VA examiner’s opinion is highly probative evidence against the claim on a direct basis of service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.”). The Board acknowledges the Veteran’s lay statements that his stomach disability was related to service, but he, as a lay person, was not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Veteran’s statements are not competent and are of no probative value with regard to causation. The Board concludes the evidence does not support the claim for service connection and there is no doubt to be otherwise resolved. As such, the claim of entitlement to service connection for a stomach disability is denied. REASONS FOR REMAND 1. Entitlement to an acquired psychiatric disability (exclusive of PTSD), including major neuro-cognitive disorder and MDD, including as secondary to service-connected tinnitus and bilateral hearing loss. Prior to his death, the clinical psychologist who provided the June 2014 VA examination diagnosed MDD, but did not provide an opinion on the etiology of the disorder. In contrast, another VA examining clinical psychologist in November 2016 and June 2019 diagnosed major neurocognitive disorder due to Alzheimer’s disease, and attributed depressive symptoms to that diagnosed disorder. The November 2016 and June 2019 VA examination reports both contained negative opinions on direct etiology to service, and the November 2016 examination also contained a negative opinion on a secondary relationship to service-connected hearing loss and tinnitus. However, the requirement that a current disability be present is satisfied when a claimant has a disability: 1) at the time a claim for VA disability compensation is filed, or 2) during the pendency of that claim, even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this regard, it appears that the Veteran had a current MDD disability during at least a portion of the pendency of the appeal that must also be considered as a current acquired psychiatric disability. The appellant’s attorney contends that the Veteran’s depression was due to suffering from his service-connected tinnitus and bilateral hearing loss. See January 2016 attorney’s correspondence. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Here, it is necessary to remand the claim for a VA medical opinion on whether the previously diagnosed MDD, in particular, was caused and/or aggravated by service-connected bilateral hearing loss or tinnitus. 2. Entitlement to service connection for hypertension, as secondary to an acquired psychiatric disability. 3. Entitlement to service connection for a heart disability, including CAD, as secondary to hypertension and an acquired psychiatric disability. The secondary service-connection claims for a heart disability and hypertension are inextricably intertwined with the underlying claim for an acquired psychiatric disability. Consideration of these claims is deferred pending re-adjudication of the psychiatric disability claim. 4. Entitlement to a TDIU. In addition to deferral pending the outcome of the above referenced claims. Referral for extraschedular consideration for a TDIU is warranted under § 4.16 (b), since the Veteran was service-connected at death only for tinnitus (rated at 10 percent) and hearing loss (rated at 0 percent), and did not meet the schedular eligibility requirements for a TDIU under § 4.16 (a). 38 C.F.R. § 4.16 (b) requires extraschedular referral in cases where the Veteran is unemployable by reason of service-connected disabilities, but does not meet the schedular percentage standards set forth in 38 C.F.R. § 4.16 (a). The proper procedure is to refer the matter to the Director of Compensation Service for extraschedular consideration. Thereafter, the Board has jurisdiction to review the Director’s determination. See Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that “the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU”). On remand, the AOJ must refer the matter of entitlement to a TDIU on an extraschedular basis to the Director, Compensation Service for a determination as to whether the Veteran is entitled to an assignment of a TDIU under the provisions of 38 C.F.R. § 4.16 (b). There is an indication of functional impairment due to tinnitus that could have impaired the Veteran’s employability, given that the Veteran’s tinnitus was so severe as to constitute a contributing cause of death. See Veteran’s death certificate. The AOJ established service connection for the cause of the Veteran’s death, based on the service-connected tinnitus disability. See July 2020 rating decision. The matters are REMANDED for the following action: 1. Request an addendum opinion from the VA psychologist who examined the Veteran in June 2014 in order to clarify the nature and etiology of his diagnosed MDD. If this psychologist is unavailable, arrange for another VA examination and medical nexus opinion by an appropriately qualified VA clinician. After examination and review of the claims file, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) whether: (a) the diagnosed MDD was caused by or otherwise etiologically related to his active service; and (b) the diagnosed MDD was caused by and/or aggravated by service-connected bilateral hearing loss and/or tinnitus.  Rationale must be provided for the opinion proffered.  2. Accomplish any development deemed necessary for the Veteran’s hypertension and CAD claims, to include obtaining etiological medical opinions if deemed necessary. 3. Refer the matter of entitlement to a TDIU to the Director of VA’s Compensation Service for consideration   of entitlement to a TDIU on an extraschedular basis in accordance with 38 C.F.R. § 4.16 (b). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.