Citation Nr: 21063983 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-06 578 DATE: October 18, 2021 ORDER Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a low back condition is remanded Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for a right foot condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for laryngitis is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for conjunctivitis is remanded. Entitlement to service connection for a dental condition is remanded. FINDING OF FACT The Veteran's headaches started during active service and continued until his death. CONCLUSION OF LAW The criteria to establish service connection for headaches have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1979 to February 1982 and May 1982 to December 1984. The Veteran was discharged from his second period of active service under other than honorable conditions due to misconduct. See September 1984 SPRs. He died in February 2020. His surviving spouse has been substituted as the Appellant for purposes of processing the claim to completion. See May 2020 correspondence. The Veteran appealed September 2009, September 2014, and March 2015 rating decisions by the Agency of Original Jurisdiction (AOJ). The Board of Veterans' Appeals (Board) notes the September 2009 rating decision, regarding service-connection for bilateral pes planus, a bilateral knee condition, and a psychiatric disorder, was part of a different appeal stream. Those issues were remanded in January and September 2014 Board decisions. A March 2015 Board decision denied those issues. The Veteran appealed the March 2015 Board decision to the Court of Appeals for Veterans Claims (Court). In June 2016, the Court issued a memorandum decision and remanded the three issues to the Board for further proceedings consistent with the JMPR. Pursuant to the JMPR, a March 2017 Board decision remanded the three issues. A May 2020 Board decision dismissed the issues due to the Veteran's death. Regarding the other eight issues, the March 2015 and February 2019 Board decision remanded the issues for issuance of a statement of the case (SOC) and supplemental SOC (SSOC). As all issues noted above remained pending and the Appellant has been properly substituted in this case, the Board finds that it has jurisdiction over all issues as stated on the title page of this decision. The Board finds there has been substantial compliance with its remand directives regarding headaches. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A veteran is entitled to the Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's July 2013 VA treatment records noted treatment for headaches. The Veteran's separation examination for his initial period of active service noted headaches. See January 1982 service treatment records (STRs). The Veteran would be treated for headaches during his initial period of service as well. See July 1980 STRs. The Veteran would continue to have prolonged headaches during his second period of active service. See September 1982 STRs. September 2021 correspondence argued the Veteran had headaches during service and continued to have them thereafter until his death. There is consistent mention of headaches throughout the Veteran's medical records. Overall, the Veteran entered service without headache issues. See January 1979 STRs. The Veteran would be treated for headaches during service and separated from his initial period of active service with a notation of headaches. Competent and credible evidence of record notes the Veteran continued to have headaches since service. There is no negative nexus opinion to the contrary. The Board finds that the evidence is at least in equipoise as to whether the Veteran's headaches had their onset in service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's headaches originated during service. Accordingly, service connection for headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran served aboard the U.S.S. Oliver Hazard Perry. See service personnel records (SPRs). The Veteran noted he was exposed to asbestos while aboard the ship. See September 2013 VA Form 21-526b. 1. Psychiatric Disorder As noted in previous Board decisions, the Board expands the Veteran's claim to include any acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran noted the stressors of having a fear of capsizing due to being out at sea in Cuba, seeing a fellow service member get run over by a car during liberty in Italy, saving a girl from drowning on a lake, seeing a rope aboard ship snapping and taking a service member's leg off, and that other service members died while aboard the ship. See June 2008 VA Form 21-0781; June 2008 VA Form 21-0781; March 2013 Veteran statement. A fellow service member noted in a July 2014 statement that while aboard the U.S.S. Forrestal between 1981 to 1982, another service member was blown off the deck and that the Veteran became severely depressed. This incident was noted in July 1979 SPRs. The Board notes the September 2019 examination report noted the Veteran's statements of only hearing about the U.S.S. Forrestal incident since he did not serve on that ship. The Board notes an April 2009 memorandum noted that there was a lack of information to corroborate stressors associated with the claim for PTSD. The Veteran's separation examination for his initial period of active service noted "depression or excessive worry." See January 1982 STRs. A February 2010 letter by nurse practitioner B.M., of the VA mental health services, noted military related PTSD due to witnessed traumas, the Veteran's indicated stressors, and stated the Veteran "came out of childhood with borderline and dependent personality features, developed PTSD symptoms in the Navy from traumatic events and then after his civilian carjacking his PTSD symptoms became clinically significant." See also December 2009 nurse practitioner B.M. record. The Board notes this opinion was not rendered by a psychologist or psychiatrist. The April 2014 examination report noted diagnoses of an anxiety disorder, depressive disorder, and maladaptive personality traits, but no diagnosis of PTSD. The April 2014 examination report also found a negative nexus to the Veteran's initial period of active service. Given the evidence of a possible personality disorder, the September 2014 Board decision remanded the issue for an opinion to determine if there was any superimposed disease or injury. An October 2014 DBQ by VA psychologist D.G. noted diagnoses of PTSD and major depressive disorder (MDD). A December 2014 opinion found the Veteran's personality disorder was not subject to a superimposed disease or injury during his first period of service. The December 2014 opinion would also find a negative nexus to service for the Veteran's schizoaffective disorder, anxiety disorder, and unspecified depressive disorder. The September 2019 examination report noted an unspecified depressive disorder diagnosis, no current symptoms of PTSD or of a schizoaffective disorder, and generally found a negative nexus to service. Overall, the Veteran has had several diagnoses regarding his psychiatric disorder. However, adequate opinions for each diagnosis have not been obtained. Importantly, each opinion of record appears to opine as to the Veteran's current diagnosis and symptoms he had at the time the opinion was rendered. For example, the most recent September 2019 opinion was rendered based on the fact the Veteran did not have a current diagnosis of PTSD despite a VA diagnosis of PTSD in the October 2014 DBQ. The Board notes that the Veteran may be service-connected for a disability if he was diagnosed with a disability at any point during the period on appeal. Therefore, the Board finds remand is required for adequate etiology opinions that separately addresses each theory of entitlement and psychiatric disorder that the Veteran was diagnosed with during the period on appeal. 2. Back Condition The Veteran was being treated for low back pain that caused him to be unable to get out of bed or walk. See June 2017 and May 2018 VA treatment records. The Veteran would be treated for back pain during his initial period of service. See July 1980 STRs. It also has been alleged that the Veteran's back condition is secondary to his foot condition. See September 2021 correspondence. The Veteran was not afforded an examination and no etiology opinion has been rendered. The Board finds remand is required for an opinion to assess the nature and etiology of the Veteran's back condition. 3. Bilateral Foot Condition The Veteran was diagnosed with various bilateral foot conditions. Accordingly, the Board has characterized the issue as stated on the title page to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Veteran's entrance examination for his initial period of active service noted non-disqualifying pes planus. See January 1979 STRs. The Veteran's separation examination for his initial period of active service noted athlete's foot and right foot pain for the past four months. See January 1982 STRs. The January 2014 examination report noted foot pain due to wearing boots. See also September 2021 correspondence. The Board notes the Veteran's bilateral pes planus claim was remanded to determine if it was a congenital defect or a disease. See January 2014 and September 2014 Board decisions. The April 2014 opinion was unable to determine if the Veteran's pes planus was a congenital disorder, but did find the Veteran's condition pre-existed service and was not aggravated by service. The October 2014 opinion was also unable to opine on whether the Veteran had a congenital defect or disease without resorting to speculation without the records at the time of diagnosis. However, the October 2014 opinion noted evidence of heel spurs on previous imaging. The August 2019 opinion found the Veteran had a congenital foot defect with no superimposed condition during active service and that heel spurs were a separate condition not related to service. The Board notes the Veteran separately claimed service-connected for his diagnosed plantar fasciitis. See December 2012 VA treatment records. Etiologically opinions of record have not adequately considered this condition when rendering the opinions. As the diagnosis of plantar fasciitis may impact the opinion of whether the Veteran had a superimposed condition to his pes planus, the Board finds that remand is required for new opinions that consider all foot diagnoses and theories of entitlement. 4. Bilateral Knee Condition The Veteran claimed his bilateral knee condition secondary to his foot condition. See May 2008 VA Form 21-526. The October 2014 opinion noted the Veteran's knee pain likely occurred with his chronic foot pain associated with lifelong pes planus. As noted in previous Board decisions, the issue of a bilateral knee condition is inextricably intertwined with the foot issue. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 5. Laryngitis The Veteran's separation examination for his initial period of active service noted ear nose and throat trouble. See January 1982 STRs. The Veteran would be treated for nasal congestion during service. See April 1981 STRs. The Veteran's August 2010 VA treatment records noted an abnormal laryngeal lesion. The Veteran was not afforded an examination and no etiology opinion has been rendered. The Board finds remand is required for an opinion to assess the nature and etiology of the Veteran's laryngitis. 6. COPD The Veteran claims COPD due to in-service asbestos exposure while aboard ships. The Veteran had COPD. See April 2017 VA treatment records. September 2021 correspondence argues the Veteran's exposure to asbestos led to chronic bronchitis which eventually caused COPD. The Veteran was not afforded an examination and no etiology opinion has been rendered. The Board finds remand is required for an opinion to assess the nature and etiology of the Veteran's COPD. 7. Conjunctivitis The Veteran would be treated for eye pain and conjunctivitis during his initial period of active service. See February and August 1981 STRs. The Veteran was treated for allergic conjunctivitis. See September 2013 VA treatment records. The Veteran was not afforded an examination and no etiology opinion has been rendered. The Board finds remand is required for an opinion to assess the nature and etiology of the Veteran's conjunctivitis. 8. Dental Condition Dental disabilities which may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabilities for compensation purposes, but may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. Overall, it is not clear from the record whether the Veteran had a dental disorder during the period on appeal for which compensation may be paid. The Board finds that a remand is required for an opinion to clarify the nature and etiology of his claimed dental disorder. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his acquired psychiatric disorder, back condition, bilateral foot condition, bilateral knee condition, laryngitis, COPD, conjunctivitis, and dental condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Appellant and her representative should be notified, and the record clearly documented. 2. Thereafter, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. After the record review, the reviewing clinician should identify all psychiatric disorder present at any point during the period on appeal, to include an anxiety disorder, MDD or depressive disorder, PTSD, a schizoaffective disorder, and a personality disorder. Then, for each identified disorder, the reviewing clinician is asked to respond to the following inquiries: Was the Veteran's personality disorder subject to a superimposed disease or injury during his first period of service that resulted in an additional disability? If so, please identify the additional disability. Did the Veteran have a diagnosis of PTSD at any point during the period on appeal? Is it at least as likely as not that the Veteran's claimed stressors are adequate to support a diagnosis of PTSD? If so, please identify which stressors. Is it at least as likely as not that any other diagnosed psychiatric disorder was incurred in, or is otherwise related to, the Veteran's time on active service? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the development in #1 above is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's back, bilateral foot, and bilateral knee conditions. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. After the record review, the reviewing clinician should identify all back, foot, and knee conditions present at any point during the period on appeal, to include pes planus, heel spurs, and plantar fasciitis. Then, for each identified disorder, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's back condition was incurred in, or otherwise related, to his time on active service, to include, but not limited to, the physical rigors of service and being in boots during service? Is it at least as likely as not that the Veteran's back condition was CAUSED by his foot condition? Is it at least as likely as not that the Veteran's back condition was AGGRAVATED by his foot condition? Is the Veteran's pes planus a (1) congenital "disease" or (2) a congenital or developmental "defect" or (3) an acquired disability? For VA purposes, "defects" are usually static in nature, whereas "diseases" are generally subject to episodic improvement or worsening." IF the Veteran's pes planus is a congenital or developmental defect, is it at least as likely as not that a superimposed disease or injury occurred during military service that resulted in an additional disability apart from the congenital or developmental defect, to include heel spurs or plantar fasciitis? If the Veteran's foot condition is a congenital disease, was it aggravated (worsened) by the Veteran's military service? If there was worsening, was this due to the natural progress of the disease? If any other foot condition is an acquired disability, is it at least as likely as not that the Veteran's foot condition was incurred in, or otherwise related, to his time on active service, to include, but not limited to, the physical rigors of service and being in boots during service? Is it at least as likely as not that the Veteran's left knee condition was incurred in, or otherwise related, to his time on active service, to include, but not limited to, the physical rigors of service and being in boots during service? Is it at least as likely as not that the Veteran's left knee condition was CAUSED by his foot condition? Is it at least as likely as not that the Veteran's left knee condition was AGGRAVATED by his foot condition? Is it at least as likely as not that the Veteran's right knee condition was incurred in, or otherwise related, to his time on active service, to include, but not limited to, the physical rigors of service and being in boots during service? Is it at least as likely as not that the Veteran's right knee condition was CAUSED by his foot condition? Is it at least as likely as not that the Veteran's right knee condition was AGGRAVATED by his foot condition? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After the development in #1 above is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's laryngitis and COPD. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. After the record review, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's laryngitis was incurred in, or otherwise related, to his time on active service, to include, but not limited to, in-service exposure to asbestos? Is it at least as likely as not that the Veteran's COPD was incurred in, or otherwise related, to his time on active service, to include, but not limited to, in-service exposure to asbestos? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. After the development in #1 above is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's conjunctivitis. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. After the record review, the reviewing clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's conjunctivitis was incurred in, or otherwise related, to his time on active service, to include, but not limited to, in-service exposure to asbestos? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 6. After the development in #1 above is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's dental condition. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. After the record review, the reviewing clinician should identify all dental conditions present at any point during the period on appeal. Then, for each identified disorder, the reviewing clinician is asked to respond to the following inquiries: (a) Is it at least as likely as not that the Veteran had missing teeth or any other current dental disability due to in-service trauma? (b) If tooth loss is identified, the reviewing clinician should determine whether there was also bone loss (or loss of the substance of the body) of the maxilla or mandible? (c) If the answer to paragraph (b) is affirmative (i.e., there is bone loss or loss of the substance of the body of the maxilla or mandible), is it at least as likely as not that this bone loss caused the tooth loss? (d) If the answer to paragraph (c) is affirmative, is it at least as likely as not that this bone loss was caused by in-service trauma or disease? (e) If in-service dental trauma or disease is identified, was it the intended effect of in-service treatment? 7. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Appellant and her representative with a SSOC, and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.