Citation Nr: 21069799 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 13-11 667 DATE: November 19, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for unspecified chest condition (now claimed as a cardiac disability) is reopened. Entitlement to service connection for a cardiac disability is granted. Entitlement to service connection for unspecified depressive disorder is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. FINDINGS OF FACT 1. In an October 2001 VA rating decision, the claim for entitlement to service connection for unspecified chest condition was denied; the Veteran was notified of these actions and of his appellate rights but did not file a timely notice of disagreement (NOD) or submit new and material evidence within a year after October 2001. 2. The evidence received since the October 2001 VA rating decision, regarding service connection for unspecified chest condition (now claimed as a cardiac disability), is not cumulative or redundant and raises the possibility of substantiating the claim. 3. The Veteran's cardiac disability was related to service. 4. The Veteran did not have PTSD. 5. The Veteran's unspecified depressive disorder was caused in part by his service-connected cardiac disability. CONCLUSIONS OF LAW 1. The October 2001 VA rating decision, denying service connection for unspecified chest condition, is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 19.52, 19.55, 20.1103 (2020). 2. New and material evidence has been received since the October 2001 VA rating decision to reopen service connection for unspecified chest condition (now claimed as a cardiac disability). 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.156, 3.303 (2020). 3. The criteria for service connection for a cardiac condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for unspecified depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1952 to April 1956. The Veteran died in April 2016. The appellant filed this case as the surviving spouse. The Veteran requested a Travel Board hearing in the April 2013 VA Form 9 and a video conference hearing before the Board in August 2014 correspondence. The Veteran's request to withdraw his hearing requests was received in March 2015. In May 2018 and February 2019, the appellant was deemed to be a valid substitute claimant for the purposes of processing the Veteran's appeal to completion. In May 2018 the Board remanded the issues of service connection for bilateral hearing loss, tinnitus, right and left shoulder degenerative arthritis, right and left ankle degenerative arthritis, and kidney disability for additional evidentiary development. In September 2020 the Board granted the issues of service connection for bilateral hearing loss, tinnitus, right and left shoulder degenerative arthritis, and right and left ankle degenerative arthritis, and denied the issue of service connection for kidney disability. In May 2018, September 2020, and June 2021, the Board also remanded the issues of service connection for a cardiac disability, an acquired psychiatric disability, to include PTSD, and peripheral neuropathy of the right and left upper extremities, and peripheral neuropathy of the right and left lower extremities for additional evidentiary development. The case has been returned to the Board for appellate review. Regarding the claim for service connection for an acquired psychiatric disorder, in its June 2021 remand, the Board found that the October 2019 and September 2020 VA opinions were deficient and requested that the Veteran's claims file be provided to a psychologist or psychiatrist to determine all the Veteran's psychiatric disorders since the date of claim in October 2009. The examiner was also to determine whether the Veteran had PTSD. If the Veteran did not have PTSD, the examiner was to provide an etiology opinion on any other psychiatric disabilities that he had. In July 2021, M. M., a psychologist, stated the psychiatric diagnoses applicable to the Veteran. She concluded that he did not have PTSD and explained why. She also explained why the other psychiatric conditions were not related to service. She reviewed the record and provided a rationale for her opinions. The opinion is adequate. There was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for unspecified chest condition (now claimed as a cardiac disability) The Board has recharacterized the October 2009 claims regarding service connection for cardiovascular disease, vascular disease, arterial heart disease, and ventricular valve disease cardiovascular more broadly to a cardiac disability in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). This claim is based upon the same factual basis and symptoms as his original claim for service connection for unspecified chest condition based on an in-service stabbing injury, which the Agency of Original Jurisdiction (AOJ) denied on the merits in an October 2001 VA rating decision. Additionally, while service personnel records were associated with the record in December 2009, these official service department records are not relevant to the merits of why service connection for unspecified chest condition was last denied in this case. See 38 C.F.R. § 3.156(c) (2020). As such, the Board has recharacterized this issue accordingly and it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). In a September 1999 VA Form 21-4138, the Veteran reported he was stabbed in 1954 and requested service connection, in part, for a chest condition. In the October 2001 VA rating decision, service connection for unspecified chest condition was denied. The AOJ noted review of the Veteran's service treatment records, the Veteran's receipt of a June 2001 notice letter pursuant to the Veterans Claims Assistance Act (VCAA) of 2000, and the absence of a diagnosis of the claimed condition in the current medical evidence of record. The Veteran was notified of this action and of his appellate rights but did not appeal by filing a NOD or submitting new and material evidence within a year thereafter. Therefore, the October 2001 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. Evidence received since the October 2001 VA rating decision includes a September 2011 VA examination report that shows a diagnosis of hypertensive heart disease with left ventricular hypertrophy and a May 2012 VA examination report for heart conditions that shows a diagnosis of congestive heart failure. The Board finds that this evidence is new and material to the element of establishing a current disability, which was not established at the time of the October 2001 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303. Entitlement to service connection for a cardiac condition is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disability, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). In the October 2009 VA Form 21-526, the Veteran reported "[he] was attacked while on liberty and [he] was stabbed by an unknown person [and] that occurred in Oakland, California." In the November 2009 VA Form 21-4138, VA Form 21-0781a, March 2010 VA Form 21-4138, October 2010 VA Form 21-4176, and April 2013 VA Form 9, the Veteran explained that this event caused severe injury and trauma to his heart and surrounding tissue, bone rib damage, arterial heart disease due to the stabbing, cardiovascular, vascular disease, and irregular heart rhythm due to the stabbing. Review of the September 2011 VA examination report shows the VA examiner acknowledged that the Veteran suffered a serious stab wound to the chest that is well documented in 1955 and explained why there is no evidence that any of his cardiac problems are related to this injury but rather it is due to long-standing high blood pressure. Additionally, review of the May 2012 VA examination report for heart conditions shows the VA examiner noted the rendered diagnosis of congestive heart failure qualifies within the generally accepted medical definition of ischemic heart disease which is multifactorial in etiology without any further explanation. Since the Veteran's death in 2016 and pursuant to the Board remands, additional VA medical opinions were provided after review of the claims file in November 2020, July 2021, and August 2021. In November 2020, the VA examiner (N. W.) explained why it is less likely than not that the claimed cardiac disability was caused by any in-service cold injury; however, did not address the in-service stabbing injury to the chest. In July 2021, the VA examiner (F. P.) concluded that that Veteran's post-service "stenosis of vessels leading to STEMI is related to atherosclerotic disease of vessels due to fat deposition with in vessel walls and is independent of a[n] external stab wound to the chest or cold weather." The AOJ asked F. P. to clarify his opinion. In August 2021 the same VA examiner (F. P.) concluded it "is at least as likely as not related to service because the [V]eteran's records support a stab injury while in service." After a review of the claims file, the Board finds the VA medical opinions provided by the VA examiner (F. P.) in July 2021 and August 2021 are in relative equipoise. The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993). Service connection for a cardiac condition is granted. Entitlement to service connection for an acquired psychiatric disorder is denied. The appellant claims that the Veteran had PTSD because he was stabbed during an altercation in service. The Board has recharacterized the October 2009 claim for PTSD due to a personal attack more broadly to an acquired psychiatric disability, to include PTSD, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. See Clemons, 23 Vet. App. at 5-6, 8. In the October 2009 VA Form 21-526, the Veteran reported "[he] was attacked while on liberty and [he] was stabbed by an unknown person [and] that occurred in Oakland, California." In the November 2009 VA Form 21-4138, VA Form 21-0781a, and October 2010 VA Form 21-4176, the Veteran explained that this event caused emotional psychological trauma that continues to affect his daily life. In the April 2013 VA Form 9, the Veteran also reported this stressor event triggered nightmares, verbal outbursts, aggressive behavior, depression, divorce, incarceration, drug abuse, alcoholism, suicidal thoughts, sleep deprivation, panic attacks, and anxiety attacks. Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between a veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). VA implemented usage of the DSM-5, effective August 4, 2014. As this case was initially certified to the Board in April 2015, the DSM-5 is for application in this case. The Veteran's STRs from January 1955 confirm that he was stabbed during an altercation while on liberty. Therefore, his stressor occurred. However, the preponderance of the evidence is against a finding that he had PTSD. In its June 2021 remand, the Board found the October 2019 and November 2020 negative medical opinions deficient. Therefore they will not be addressed or assigned probative weight against the claim. The Veteran's medical records do not show a diagnosis of PTSD. In July 2021, a VA psychologist stated that the Veteran did not meet the diagnostic criteria for PTSD. She explained that his medical records were absent for a diagnosis of PTSD. She stated that an initial PTSD C&P examination from November 2011 found that he did not have PTSD. She also stated that all PTSD screens conducted by VA treatment providers were negative, and that the "...screens were answered by the Veteran himself" and that he denied experiencing symptoms of PTSD. For these reasons, she concluded that he would not have met the diagnostic criteria for PTSD. This opinion is well-reasoned and is probative evidence against the claim. Although the Veteran and the appellant asserted that the Veteran had PTSD, a medical diagnosis of PTSD has long been required to establish service connection. Young v. McDonald, 766 F.3d 1348, 1353-54 (Fed. Cir. 2014) ("PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify"). Neither the Veteran nor the appellant in this case are shown by the evidence of record to have medical training or skills. Because the preponderance of the evidence is against a finding that the Veteran had PTSD, service connection for PTSD is denied. The June 2021 examiner stated that the Veteran had been diagnosed with depression during the appeal period and cited a VA treatment record from February 2016. After explaining why the Veteran did not have PTSD, the psychologist stated that based upon the record, he would have qualified for the diagnoses of tobacco use disorder (in early remission, severe), stimulant use disorder (cocaine, in sustained remission, severe), opiate use disorder (in sustained remission, severe), and unspecified depressive disorder. The July 2021 examiner explained that depression was first noted in or around 2016, "...which was the time that [the] Veteran was placed in a skilled nursing facility (SNF) due to ongoing medical conditions which appear to have led to his death. Diagnoses of depression are common in elderly individuals, especially those with chronic medical conditions." The examiner explained that this diagnosis was not present in any medical records until 2016, which indicates that he did not previously experience depressive symptoms. She also noted that in clinical notes, during which the Veteran was asked for mental health symptoms, he denied the presence of anxiety, depression, or PTSD. For these reasons, she explained that his unspecified depressive disorder was not related to service. This opinion is probative evidence against direct service connection for unspecified depressive disorder. However, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. The July 2021 examiner opined that the Veteran became depressed after being moved to an SNF for conditions "which appear to have lead to his death." His death certificate lists arteriosclerotic heart disease and coronary artery disease. His cardiac disability is now service-connected. Based on the July 2021 opinion, the probative evidence of record supports a finding that the Veteran's unspecified depressive disorder was caused by a service connected disability. Service connection for unspecified depressive disorder is granted because the preponderance of the evidence shows that it was caused by a service-connected disability. 38 C.F.R. § 3.310. The examiner explained that the substance abuse disorders were present prior to service per the Veteran's own reports in his medical records, and he stated that he continued to use substances during service, and his medical records showed that he continued to use them for decades after service. The examiner concluded that this indicated that "these disorders were not directly service connected in any way." This opinion is probative evidence against the appellant's claim. Additionally, service connection for a substance abuse disorder can only be established if it is secondary to an already service-connected disability. 38 U.S.C. §§ 105(a), 1110; Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). There is no medical or lay evidence of record indicating that the Veteran abused substances or increased his use of substances because of any of his service-connected disabilities, including his now service-connected cardiac disability or unspecified depressive disorder. Service connection for substance abuse is denied. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity 4. Entitlement to service connection for peripheral neuropathy of the left upper extremity In the October 2009 VA Form 21-526, the Veteran requested service connection for cold injuries of ankles, feet, elbows, and shoulders, as well as peripheral neuropathy of the lower and upper extremities. The July 2021 VA examiner noted that in 2016, the Veteran was moved to an SNF. VA treatment records show that the Veteran was transferred to Brookside Health Center. Records from this facility have not been obtained. On remand, the AOJ should attempt to obtain them. Since the Veteran's death in 2016 and pursuant to the Board remands, VA medical opinions were provided after review of the claims file in September 2019, November 2020, July 2021, and August 2021. In July 2021, the VA examiner (F. P.) noted that the Veteran's reports of experiencing painful sensations in his feet since service is due to peripheral neuropathy. Then in August 2021 the same VA examiner (F. P.) clarified that "the [V]eteran's foot pain is related to peripheral neuropathy and not an underlying foot condition or other injury" and there was no evidence to support a cold injury. After a review of the claims file, the Board finds that additional VA medical opinions are needed to (a) clarify whether the Veteran's diagnosis of peripheral neuropathy of the bilateral lower extremities is separate and distinct from his service-connected cold injury residuals of right and left foot conditions and (b) address whether the Veteran's diagnosis of peripheral neuropathy of the bilateral upper extremities is related to the conceded in-service cold injury (as conceded by the AOJ in the April 2015 VA rating decision). When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. See 38 C.F.R. §§ 3.159, 3.303; Barr, 21 Vet. App. at 312. The matter is REMANDED for the following actions: 1. Provide the appellant with a release form for medical records from Brookside Health Center and if she returns the required information, attempt to obtain the records. Negative responses should be documented and if records cannot be obtained, the appellant should be notified. 2. Return the claims file to the examiner who provided the July 2021 and August 2021 VA medical opinions for peripheral neuropathy (F. P.) so a supplemental opinion may be provided. If that examiner is no longer available, provide the claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following: (a.) Identify whether the Veteran's symptoms of peripheral neuropathy of the bilateral lower extremities, including feet pain, were separate and distinct from his service-connected cold injury residuals of right and left foot conditions. (b.) If so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy of the bilateral lower extremities began during active service or is related to an incident of service, to include the conceded in-service cold injury. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy of the bilateral upper extremities began during active service or is related to an incident of service, to include the conceded in-service cold injury. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, review the medical opinion to ensure that the requested information was provided. If any opinion is deficient in any manner, the AOJ must implement corrective procedures. 4. Then, readjudicate the claims. If any decision is adverse to the appellant, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.