Citation Nr: 21063982 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-14 291A DATE: October 18, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder, is granted. REMANDED Entitlement to service connection for residuals of a cold injury, to include frostbite, of the bilateral hands is remanded. FINDING OF FACT The Veteran's acquired psychiatric disorder has been related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from November 1967 to June 1969, to include service in Korea. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in August 2013, the Veteran filed a notice of disagreement (NOD), appealing the July 2013 rating decision. The Agency of Original Jurisdiction (AOJ) issued a statement of the case (SOC) addressing the appealed issues in September 2014. In March 2018, the Veteran filed a substantive appeal (VA Form 9). Throughout the course of the appeal period, the Veteran's attorney has stated that neither he nor the Veteran received the September 2014 SOC, and thus, a VA Form 9 was not submitted within the 60-day timeframe following issuance of the SOC. In a December 2019 deferred rating decision, the RO determined that, in light of the attorney's statements, the VA Form 9 received in March 2018 is considered timely. As such, the July 2013 rating decision did not become final and the claims on appeal are simply claims for service connection. Therefore, new and material evidence is not required, and the Board will adjudicate the claims on the merits. The Veteran has claimed service connection specifically for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled. Therefore, the claim has been recharacterized as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder. The issue has thus been restated. Additionally, the Veteran has claimed service connection specifically for frostbite of the bilateral hands. In light of Clemons, the claim has been recharacterized as one of entitlement to service connection for residuals of a cold injury, to include frostbite, of the bilateral hands. The issue has thus been restated. In November 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. SERVICE CONNECTION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 38 U.S.C. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder, is granted. The Veteran contends that he has an acquired psychiatric disorder which began during service. He alleges that he began experiencing anxiety while serving in Korea. The Veteran's service personnel records show that he served as a rifleman and assistant gunner in Korea from April 1968 to June 1969. Initially, the Board notes that the Veteran's service treatment records do not reflect that the Veteran had any psychiatric problems upon entry into active service. Furthermore, the Veteran's May 1969 separation examination and associated Report of Medical History do not indicate any psychiatric symptoms. However, his description of stressors, including walking through a minefield in Korea and hearing North Korean propaganda due to being in close proximity to the Korean Demilitarized Zone (DMZ), is consistent with his acknowledged service in Korea. See July 2013 VA examination report; November 2020 Hearing Transcript. Thus, it is reasonable to conclude an in-service incurrence. As to nexus, in a July 2013 VA psychiatric examination, the examiner diagnosed general anxiety disorder and opined that it is as likely as not caused by the Veteran's military service. The examiner noted multiple in-service stressors, including walking through a minefield in Korea and hearing broadcasts while serving near the Korean DMZ. In sum, the medical evidence establishes that the Veteran's current diagnosis is related to service. Accordingly, the evidence weighs in favor of the claim and there is no doubt to be otherwise resolved. As such, service connection for an acquired psychiatric disorder is warranted and the appeal is granted. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for residuals of a cold injury, to include frostbite, of the bilateral hands is remanded. The Veteran asserts that he experienced cold injury to his hands during his service in Korea and was sent to the hospital in Korea as a result. See November 2020 Hearing Transcript at pg. 19. Review of the Veteran's claims file indicates that these inpatient records have not been obtained. To date, there has been no attempt to determine whether the reported inpatient records of hospitalization exist. Therefore, upon remand, action should be taken to request and associate with the file any service hospital records concerning the Veteran. Additionally, the record reflects that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. A review of the record does not disclose an attempt by the RO to obtain any records from SSA. As such records may be potentially relevant to the claims on appeal at this time, a remand is necessary in order to obtain any available SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed Cir. 2010); see also Baker v. West, 11 Vet. App. 163, 169 (1998). Furthermore, the record reflects that the Veteran has not been afforded a VA examination for his claimed frostbite of the bilateral hands. Throughout the appeal period, the Veteran has stated that he suffered frostbite while serving in Korea. See January 2012 VA treatment record; November 2020 Hearing Transcript at pgs. 18-19. Thus, in light of the evidence of record, the Veteran may have a current disability related to cold injury residuals of the hands that may be associated with service. As the Veteran has not been afforded a VA examination in connection with this claim, the Board finds that a remand for a VA examination of the claimed disability is warranted. Finally, the Board notes that the record shows that recent correspondences mailed to the Veteran were returned as undeliverable. A May 2021 correspondence from the Veteran's attorney notes that the Veteran now resides at 81 Summer Street, Apt. 2 East, New Bedford, MA 02740. Thus, in order to afford the Veteran all due process, the RO should update the Veteran's claims file to reflect his current address and resend any returned mail. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. In addition, take all appropriate action to obtain records of any inpatient hospitalization during service. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Update the Veteran's claims file to reflect his current address and resend any correspondence to the Veteran that he did not receive. 3. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include SSA disability determinations and any medical records underlying these determinations. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 4. After completing the above development, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of a cold injury of the bilateral hands. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner must state an opinion as to the following: (a) Identify any and all disabilities pertaining to the Veteran's bilateral hands. (b) For any currently diagnosed bilateral hand disability, the examiner should provide an opinion as to whether it is at least as likely as not related to the Veteran's military service. All lay statements describing the Veteran's symptoms, manifestations, and onset must be fully considered and discussed. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (Continued on next page) 5. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.