Citation Nr: 21012074 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-45 833 DATE: March 3, 2021 ORDER Entitlement to an earlier effective date of May 19, 1981 for the award of service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for hypertension is granted. Service connection for a lumbosacral spine disability is granted. Service connection for a sleep disorder, to include obstructive sleep apnea (OSA), is denied. Service connection for a dental disability for compensation purposes is denied. Entitlement to recognition of A. as a dependent child of the Veteran is denied. REMANDED The following issues are remanded for further development: (1) entitlement to service connection for a dental disability for treatment purposes; (2) entitlement to service connection for an eye disability, to include glaucoma and farsightedness, claimed as due to herbicide agent exposure; (3) entitlement to service connection for a prostate disability—claimed as due to exposure to herbicide agents, as due to Camp Lejeune, North Carolina contaminated water, and/or as secondary to hypertension; (4) entitlement to service connection for a thyroid disability, claimed as due to herbicide exposure; (5) entitlement to service connection for a skin disability, to include tinea pedis and psoriasis, claimed as due to herbicide exposure; (6) entitlement to an initial rating in excess of 50 percent for PTSD; (7) entitlement to a total disability rating based on individual unemployability (TDIU); (8) entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance and/or at the housebound rate; (9) entitlement to recognition of S., R., and J. as dependent children of the Veteran; (10) entitlement to recognition of A. as a dependent spouse of the Veteran; and (11) entitlement to recognition of E. as a dependent spouse of the Veteran. FINDINGS OF FACT 1. On May 19, 1981, the Department of Veterans Affairs (VA) received a VA Form 21-526, Veterans Application for Compensation or Pension, seeking entitlement to service connection for “emotional problems.” In September 1981, VA denied the Veteran’s claim based upon a prior administrative decision that, due to the character of the Veteran’s discharge, the Veteran was precluded from receiving VA compensation benefits. In November 2012, VA determined that the character of the Veteran’s discharge was no longer a bar to benefits. On December 13, 1989, the Veteran filed an informal claim seeking service connection for PTSD. However, this December 1989 claim was of a smaller scope than the May 1981 claim. 2. The Veteran’s active duty service included service in the Republic of Vietnam where he was presumably exposed to herbicide agents, including Agent Orange. The evidence of record demonstrates that the Veteran’s current hypertension was caused by or related to his in-service herbicide exposure. 3. The evidence of record is evenly balanced regarding whether the Veteran’s current lumbosacral spine injury was related to service. 4. The Veteran currently has OSA. However, the Veteran’s OSA did not have its onset in service and is not otherwise related to service, including exposure to herbicide agents in the Republic of Vietnam. 5. The evidence of record does not indicate that the Veteran currently has a dental disability for which service connection for compensation purposes may be granted. 6. The evidence of record indicates that A. was not adopted by the Veteran or any of his spouses during the claim period. A. is not eligible to be recognized as a dependent of the Veteran for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of May 19, 1981 for the award of service connection for PTSD are met. 38 U.S.C. § 5110 (2013); 38 C.F.R. §§ 3.4, 3.12, 3.102, 3.151, 3.155, 3.400. 2. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a lumbosacral spine disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a dental disability for compensation purposes are not met. 38 U.S.C. §§ 1110, 1712, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.150. 6. The criteria for recognition of A.as a dependent child of the Veteran are not met. 38 U.S.C. §§ 101(4), 1115; 38 C.F.R. §§ 3.57, 3.210; O’Brien v. Wilkie, 30 Vet. App. 21 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1968 to November 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2013, March 2014, June 2014, January 2015, and September 2017 rating decisions of VA Regional Offices (ROs). Jurisdiction of the Veteran’s claims file currently resides with the Little Rock, Arkansas RO. In September 2019, the Board denied service connection for high cholesterol and found that new and material evidence had been received to reopen the issue of entitlement to service connection for a dental disability. Further, the Board remanded the following issues for additional development: entitlement to service connection for a dental disability, a skin disability, a lumbosacral spine disability, a prostate disability, hypertension, a thyroid disability, an eye disability, and a sleep disorder; entitlement to an effective date prior to December 13, 1989 for the grant of service connection for PTSD; entitlement to an initial rating greater than 50 percent for PTSD; entitlement to a TDIU; entitlement to SMC based on the need for regular aid or attendance and/or at the housebound rate; entitlement to additional compensation for children S., R., J., and A, as dependents; entitlement to additional compensation for A., the Veteran’s former spouse, as a dependent; and entitlement to additional compensation for E., the Veteran’s current spouse, as a dependent. The case has returned to the Board for appellate review. Earlier Effective Date for the Award of Service Connection for PTSD The current effective date for the grant of service connection for PTSD is December 13, 1989. After reviewing the evidence of record, the Board finds that an earlier effective date of May 19, 1981 is warranted. Accordingly, to this extent, the Veteran’s claim is granted. In support of this determination, the Board first notes that, as stated previously, the Veteran served on active duty from July 1968 to November 1969. His Department of Defense Form 214 (DD214) indicated that the character of his discharge was under conditions other than honorable. Generally, under 38 C.F.R. § 3.12(a), a veteran must be discharged or released from service under conditions other than dishonorable in order to be eligible for VA compensation. On May 19, 1981, VA received a formal claim from the Veteran seeking service connection for “emotional problems.” In adjudicating this claim, VA reviewed the Veteran’s DD214 and issued an administrative decision on September 14, 1981. In this administrative decision, VA found that the character of the Veteran’s discharge ultimately barred him from Veteran receiving VA benefits. Later that month, on September 25, 1981, VA issued the Veteran a notification letter informing him that he was not entitled to any benefits stemming from his period of service from July 1968 to November 1969. Accordingly, his claim seeking service connection was denied. Several years later—on December 13, 1989—the Veteran filed another claim seeking service connection for PTSD. In June 1990, VA issued a notification letter informing the Veteran that his claim was denied as he did not respond to a request for specific evidence. Separate from this denial of compensation, the Veteran was granted service connection for PTSD for VA treatment purposes under Chapter 17 via a rating decision in March 2002. About 10 years later in February 2012, a VA RO issued a rating decision finding that the Veteran was insane at the time events transpired which led him to receive his discharge under conditions other than honorable. 38 C.F.R. § 3.12(b) provides an exception to the character of discharge bar established by 38 C.F.R. § 3.12(a). Specifically, if a person is found to be insane at the time of committing the offense which caused the discharge or release under conditions other than honorable, then the discharge bar described in 38 C.F.R. § 3.12(a) is not applicable and the person may be eligible for VA benefits. See 38 C.F.R. § 3.12(b). Consistent with the insanity finding of the February 2012 rating decision, VA’s Appeals Management Center issued another administrative decision in November 2012. In this decision, VA found that, pursuant to 38 C.F.R. § 3.12(b), the character of the Veteran’s discharge was no longer a bar to benefits due to the Veteran’s in-service insanity. With this bar to benefits removed, a VA RO issued another rating decision in February 2013 granting the Veteran service connection for PTSD. The RO assigned an effective date of December 13, 1989 for the Veteran’s award. The RO explained that this date was assigned because this was the date VA received the Veteran’s prior service connection claim, and that the grant of VA medical care for PTSD under Chapter 17 kept the December 13, 1989 claim active, and that the November 2012 administrative decision permitted the reconsideration of the Veteran’s prior claim. In addressing the impact of the November 2012 administrative decision in finding that there was no longer a bar to benefits based upon the character of the Veteran’s discharge, the Board finds 38 U.S.C. § 5110(i) to be applicable in the instant case. Specifically, at the time of the February 2013 rating decision, 38 U.S.C. § 5110(i) provided that whenever a disallowed claim is readjudicated and therefore allowed on the basis of new and material evidence resulting from the correction of military records of the proper service department under 10 U.S.C. § 1552, or the change, correction, or modification of a discharge or dismissal under 10 U.S.C. § 1553, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the later of (1) the date on which an application was filed for correction of the military record for the change, modification, or correction of a discharge or dismissal, as the case may be; or (2) the date the disallowed claim was filed. 38 U.S.C. § 5110(i) then specified that in no event would the award of benefits be retroactive for more than one year from the date of reopening of the disallowed claim. In the February 2013 rating decision on appeal, the RO identified the Veteran’s December 13, 1989 claim for service connection for PTSD as controlling. However, the RO did not address the status or impact of the Veteran’s May 19, 1981 claim. The May 19, 1981 claim was for service connection for “emotional problems.” By labeling his claimed disability as “emotional problems,” the Veteran on May 19, 1981 was requesting service connection for any possible psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Comparatively, when the Veteran informally sought service connection for PTSD in December 1989, he was seeking service connection for only one specific psychiatric disorder. Thus, the December 13, 1989 claim did not encompass the prior claim from May 19, 1981. See Murphy v. Wilkie, 983 F.3d 1313, 1319 (Fed. Cir. 2021) (noting that the proper inquiry for VA in reviewing a pro se claimant’s request to reopen filing is to determine what diagnoses, conditions, or illnesses can reasonably be understood as included in the request. This inquiry may be informed by, but not limited to, looking to what the particular veteran could have reasonably expected to have included in the filing of such request and the evidence of record). Consistent with this proposition, the June 1990 denial of the December 13, 1989 claim did not explicitly address the preliminary issue of whether new and material evidence needed to be received to readjudicate service connection. The Board finds this lack of discussion of new and material evidence to be significant and—pursuant to the benefit of the doubt principle encompassed in 38 C.F.R. § 3.102—interprets this lack of discussion as an indication that the May 19, 1981 claim was separate and distinct from the December 13, 1989 claim. Thus, the May 19, 1981 claim was the first, prior “disallowed claim” as contemplated by 38 U.S.C. § 5110(i) (2013). With finding the May 19, 1981 claim as the prior disallowed claim, the Board concludes that 38 U.S.C. § 5110(i) (2013) requires that May 19, 1981 be assigned as the effective date for the Veteran’s award of service connection for PTSD because: (1) new and material evidence was received following its denial in September 1981; (2) the November 2012 administrative decision concluding that the character of the Veteran’s discharge was no longer a bar to benefits constituted a “corrective action;” and (3) VA’s Appeals Management Center, which issued the November 2012 administrative decision, was an authority competent to make such a determination in 2012. As the character of the Veteran’s discharge has yet to be modified or upgraded by the Department of the Navy, the only possible effective date assignable under 38 U.S.C. § 5110(i) (2013) is May 19, 1981 as it is the date of the prior disallowed claim. Thus, the Board grants the Veteran’s appeal. In assigning a new effective date of May 19, 1981, the Board acknowledges the Veteran’s contention that he should be assigned an effective date back to 1969. See February 2013 Notice of Disagreement (NOD). However, the Board notes that the record does not demonstrate that the Veteran filed a formal or informal claim seeking service connection for any psychiatric disorder prior to May 19, 1981. Thus, as the May 19, 1981 claim was the first claim for service connection for a psychiatric disorder, it is ultimately controlling in contemplating the assignment of an effective date prior to December 13, 1989 for the award of service connection for PTSD. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. See 38 C.F.R. § 3.303(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Additionally, related to the issues of service connection for hypertension, a lumbosacral spine disability, a sleep disorder, and a dental disability for compensation purposes, the Veteran has contended that his current disabilities were caused by or related to his exposure to herbicide agents in the Republic of Vietnam. 38 C.F.R. § 3.309(e) recognizes that certain disabilities have been associated with in-service exposure to herbicide agents and are entitled to service connection presumptively. However, none of the Veteran’s contended disabilities are included within the presumptive list provided by 38 C.F.R. § 3.309(e). Nevertheless, service connection may still be warranted on a direct basis for any of the contended disabilities if adequate, competent evidence links the contended disability to in-service herbicide exposure. 1. Hypertension In regard to the issue of service connection for hypertension, the Board first notes that the Veteran was diagnosed with hypertension during the claim period. See, e.g., November 2017 VA PCC Return Note (assessing the Veteran with hypertension, controlled). Thus, the Board finds the current disability requirement to be satisfied in the instant case. See 38 C.F.R. § 3.303(a). Moving to the next service connection requirement of an in-service injury or incurrence, the Board has previously noted that the Veteran served in the Republic of Vietnam. As the Veteran served in Vietnam, he is presumed to have been exposed in service to certain herbicide agents, including Agent Orange. See 38 C.F.R. § 3.307(a)(6). Thus, the Board finds the in-service incurrence requirement to also be satisfied. Lastly, regarding the remaining nexus requirement, the record reflects that, in June 2020, the Veteran was provided a VA hypertension examination. After physically examining the Veteran and reviewing his complete VA claims file, the June 2020 VA examiner opined that it was at least as likely as not that the Veteran’s hypertension was incurred on or caused by service. In support of this determination, the examiner referenced two pieces of medical literature which found a relationship between herbicide exposure and the development of hypertension. The Board finds the June 2020 VA examiner’s opinion to adequate for adjudicative purposes as it was based on a consideration of the Veteran’s medical history, described the Veteran’s condition in detail, and supported its conclusion with a reasoned analysis. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, as all requirements for service connection for hypertension have been satisfied, the Board grants the Veteran’s claim on a direct basis. 38 C.F.R. § 3.303(a). 2. Lumbosacral Spine Disability Similar to the issue of service connection for hypertension, the Board finds that entitlement to service connection for a lumbosacral spine disability is warranted on a direct basis. See 38 C.F.R. § 3.303(a). Accordingly, the Veteran’s claim is granted. Turning to the evidence of record, the Board first notes that the Veteran has been diagnosed with a disability of the lumbosacral spine during the claim period. See, e.g., March 2020 VA Back Conditions Examination (providing diagnoses of intervertebral disc syndrome (IVDS), degenerative disc disease with facet osteoarthritis, and lumbar laminectomy). Thus, the Board finds the current disability requirement to be satisfied. Next, turning to the in-service incurrence requirement, the Board acknowledges that a service treatment record (STR) from February 1969 documented that Veteran complained of and received treatment for lower back pain in service. Accordingly, the Board finds the in-service incurrence requirement to be satisfied in the instant case. Lastly, regarding the remaining nexus requirement, the Board first notes that the Veteran has repeatedly indicated that his back pain began in service and has continued to the present. Specifically, in November 2015, the Veteran told a VA physical therapist that he had chronic back pain going back to his time serving in Vietnam. On this occasion, the Veteran also mentioned a post-service, work-related accident in the 1980s. Similarly, in August 2014, the Veteran stated to his primary care provider that he was experiencing lower back pain which he first noticed around the age of 18 or 19. At the time of his active duty service in the United States Marine Corps, the Veteran was 18 and 19 years old. In addressing the Veteran’s contention that his current lumbosacral spine disability was caused by or related to service, the Veteran was provided a VA back conditions examination in March 2020. After physically examining the Veteran and reviewing his entire VA claims file, the VA examiner opined that the Veteran’s diagnosed disabilities of IVDS, degenerative disc disease with facet osteoarthritis, and lumbar laminectomy were at least as likely as not incurred in or caused by the Veteran’s onset of lower back pain in service. In support of this conclusion, the examiner referenced the February 1969 STR documenting lower back pain. The examiner then stated that the Veteran’s current symptoms were consistent with the mechanism of the Veteran’s lumbosacral spine disability and his reports of continued symptoms since service. Thereafter, in September 2020, the March 2020 examiner was asked to provide an addendum opinion to address evidence documenting a post-service work-related injury to the back in 1986. The examiner indicated that she had reviewed this post-service evidence. She then opined that the disabilities diagnosed in March 2020 were at least as likely as not related to military service. In support of her conclusion in September 2020, the examiner first stated that any stretching injury to the ligaments, tendons, or muscles of the lower back can impact the integrity of the spinal discs themselves. The examiner then explained if the structures of the area of the lumbar spine are damaged, over time symptoms can spread and result in diagnoses like degenerative disc disease with facet osteoarthritis, IVDS, and lumbar laminectomy. Subsequent to the September 2020 addendum opinion, the March 2020 examiner was asked to provide another opinion in December 2020. On this occasion, the examiner concluded that it was not possible to state whether the Veteran’s current back disabilities were due to his post-service incidents re-injuring his back without resorting to speculation. Based upon this December 2020 response, a different VA medical professional was asked to provide a separate etiological opinion later in December 2020. After reviewing the Veteran’s claims file, this different medical professional opined that it was less likely as not that the Veteran’s disabilities diagnosed in March 2020 were related to or caused by service. In support of this conclusion, the medical professional first stated that (1) the February 1969 in-service incident was an isolated event, (2) the Veteran’s November 1969 separation examination did not mention back complaints, and (3) the record was absent evidence that the Veteran received medical treatment for his back within 12 months of his discharge. Next, the medical professional referenced medical literature and stated that a vast majority of low back complaints resolve in a few days and this was likely the Veteran’s situation in February 1969. Lastly, the medical professional stated that the Veteran did not have a history of continued post-service low back complaints but, rather, had multiple workman’s compensation claims for low back injuries after service. Thus, the medical professional concluded that there was no evidence that the workmen’s compensation injuries constituted a re-injury of the in-service lower back injury. In reviewing these multiple medical opinions, the Board finds both the March 2020 VA examiner’s opinions and the December 2020 VA medical professional’s opinion to be adequate for adjudicative purposes. See Stefl, supra. As the Veteran’s claim currently stands, the evidence is at least evenly balanced as to (1) whether the Veteran’s lumbosacral spine disability began in service and continued to the present, or (2) whether the Veteran’s current disability is related to post-service injuries. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to service connection for a lumbosacral spine disability is warranted. See 38 C.F.R. § 3.102. Accordingly, the Board grants the Veteran’s claim. 3. Sleep Disorder, to include OSA Unlike the issues of service connection for hypertension and a lumbosacral spine disability, the Board finds that service connection for a sleep disorder, to include OSA, is not warranted in the instant case. Accordingly, the Veteran’s claim is denied. In support of this determination, the Board first notes that the Veteran has been diagnosed with OSA during the claim period. See, e.g., October 2019 VA PCC Return Note (including OSA in an assessment of multiple disabilities). As such, the Board finds the current disability requirement to be satisfied. See 38 C.F.R. § 3.303(a). In finding that OSA satisfies the current disability requirement, the Board notes that the Veteran has reported sleep disturbances to VA mental health providers. See, e.g., March 2020 VA PTSD Examination Report (documenting the Veteran’s report of sleeping around 3 hours per night and having nightmares). However, these symptoms have been associated with the Veteran’s already-service-connected PTSD. Therefore, the Board concludes that Veteran’s OSA is the only separate and distinct sleep disorder that satisfies the current disability requirement. Moving to the next requirement of in-service incurrence, the Veteran’s STRs are absent any complaints of or treatment received for symptoms associated with OSA. However, the Veteran has contended that his current OSA is related to his in-service exposure to herbicide agents in Vietnam. See July 2014 NOD. As stated previously, as the Veteran has confirmed service in the Republic of Vietnam, he is presumed to have been exposed to herbicide agents like Agent Orange. In addressing whether the Veteran’s current OSA was caused by or related to his in-service herbicide exposure, the Veteran was provided a VA sleep apnea examination in June 2020. After physically examining the Veteran and reviewing his VA claims file, the examiner opined that it was less likely than not that the Veteran’s OSA was incurred in or caused by service, to include exposure to herbicide agents in the Republic of Vietnam. In support of this determination, the examiner stated that no clinical evidence was found to correlate OSA with exposure to herbicide agents. Additionally, the examiner referenced the Veteran’s diagnosis of OSA in 2013, about 34 years after his separation from service in 1969. The Board finds the June 2020 VA examiner’s opinion to be adequate for adjudicative purposes as it was based upon the Veteran’s complete medical history, discussed the Veteran’s OSA is detail, and supported its conclusion with a reasoned analysis. See Stefl, supra. Specifically, VA treatment records associated with the claims file indicate that the Veteran’s OSA was first diagnosed in April 2013 following the performance of a sleep study. Additionally, as there was no medical evidence linking herbicide agents to the development of OSA, the Board concludes that the June 2020 is of probative value. As there are no other competent, adequate medical opinions of record addressing the etiology of the Veteran’s OSA, the Board finds that the remaining service connection requirement has not been established in the instant case. Thus, the Board must deny the Veteran’s claim for service connection for a sleep disorder, to include OSA. See 38 C.F.R. § 3.303(a). 4. Dental Disability for Compensation Purposes As an initial matter, the Board has bifurcated the Veteran’s claim for service connection for a dental disorder. Specifically, the Board has separated into two separate issues service connection for compensation purposes and service connection for treatment purposes. Service connection for compensation purposes is addressed in the current section while service connection for treatment purposes will be addressed in the Remand section below. Moving to the merits of the Veteran’s compensation claim, disability compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such loss is due to loss of substance of the body of the maxilla or mandible during service due to trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Code 9913 (Note). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease cannot be service connected for purposes of compensation. 38 C.F.R. § 3.381. In the instant case, the Veteran has contended that he received fillings for cavities in service and that his fillings have now fallen out, causing pain. See July 2017 Informal Claim. However, as stated immediately above, cavities are not a condition for which service connection for compensation purposes may be granted. Rather, the Board must evaluate whether the Veteran lost the substance of the body of the maxilla or mandible due to trauma in service. No evidence of such a disability has been associated with the Veteran’s claims file. As the Veteran does not have a dental disability for which VA compensation benefits are payable, his claim for service connection for a dental disability for compensation purposes must be denied. Dependency Status for Child A. If a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling, an additional amount of compensation may be payable for a spouse, child, and/or dependent parent.  See 38 C.F.R. § 3.4(b). For the purposes of determining whether A. should be recognized as a dependent, the Board finds that the Veteran has met the 30 percent eligibility threshold established by 38 C.F.R. § 3.4(b). Moving beyond this initial eligibility threshold determination, the Veteran has contended that he is entitled to an additional amount for A. as a dependent child. Specifically, in a completed VA Form 21-686c, Declaration of Status of Dependents, received b VA in February 2013, the Veteran stated that A. was born in Little Rock, Arkansas in September 2001. The Veteran provided A.’s Social Security number and indicated that A. was his adopted child. However, the Veteran clarified that his spouse E. was appointed as guardian of A. in 2010 via court order. The Veteran again indicated that E., his spouse at the time, was the legal guardian of A. in a June 2014 phone call with a VA employee. The Veteran stated that neither he nor E. had adopted A. 38 C.F.R. § 3.57, and the underlying statutory provision 38 U.S.C. § 101(4), define the term “child” for VA purposes. Specifically, “child” means (1) an unmarried person who is a legitimate child, (2) a child legally adopted before the age of 18, (3) a stepchild who acquired that status before the age of 18 and who is a member of the veteran’s household or was a member of the veteran’s household at the time of the veteran’s death, or (4) an illegitimate child and: (A) is under the age of 18 years; or (B) before reaching the age of 18, became permanently incapable of self-support; or (C) is between the age of 18 and 23 and is pursuing a course of instruction at an educational institution approved by VA. See 38 C.F.R. § 3.57(a)(1). In this case, the record indicates that A. was under the age of 18 until September 2019. However, A. is not a biological child or a stepchild of the Veteran. The only way A. could qualify as a dependent child of the Veteran for compensation purposes if the Veteran or a spouse of the Veteran adopted A. Currently, a copy of a decree of adoption or a copy of an adoptive placement agreement indicating that the Veteran is the adoptive parent of A. is not associated with the claims file. Unfortunately, absent such evidence of adoption, the Board may not grant dependency status for A., resulting in a denial of his appeal. See 38 C.F.R. §§ 3.57, 3.210. In denying dependent child status for A., the Board notes that the Veteran’s case is similar to a case recently decided by the Court of Appeals for Veterans Claims (Court). Specifically, in O’Brien v. Wilkie, the Court was asked to address whether, for VA purposes, the meaning of the term “dependent” included children only as defined in 38 U.S.C. § 101(4)(A), or whether it encompassed any child who lived with and was actually dependent on a veteran. Id. at 23. In O’Brien, a veteran and his spouse were appointed the legal guardian of their grandson pursuant a state court order. Id. at 23-24. After being appointed guardian, the Veteran filed a claim with VA seeking to have his grandson recognized as dependent child. Id. at 24. In affirming a Board decision that declined to recognize the grandson as a dependent, the Court first noted that 38 U.S.C. § 1115 generally articulated that veterans could be entitled to additional compensation for dependents, and that subsections of 38 U.S.C. § 1115 limited the scope of who qualified as a dependent to spouses, children, and dependent parents. Id. at 27 (citations omitted). The Court then noted that Congress had defined the term “child” in 38 U.S.C. § 101(4)(A) to include only those minors who were legitimate children, legally adopted children, or stepchildren who were members of a veteran’s household or who were members of the household at the time of a veteran’s death. Id. As grandchildren were not included in the definition provided by 38 U.S.C. § 101(4)(A)—and there was no evidence that the veteran had adopted his grandson—the Court found that the Board did not commit error in denying the grandson dependent status. Id. at 28. The instant case is similar to the scenario addressed in O’Brien. Specifically, A. resided in the Veteran’s household and the record indicates that the Veteran provided for A. However, the record does not indicate that A. was formally adopted by the Veteran or his spouse E. As the status of a child like A. is not included in the definition of child provided by 38 U.S.C. § 101(4)(A), the Board may not designate him as a dependent for VA compensation purposes. Accordingly, the Board denies the Veteran’s claim. REASONS FOR REMAND 1. Service Connection for a Dental Disability for Treatment Purposes In September 2019, the Board remanded the issue of service connection for a dental disability for treatment purposes for initial adjudication by the Agency of Original Jurisdiction (AOJ). Following the Board’s remand, a VA RO issued a rating decision in September 2020 denying service connection for treatment purposes. In its denial, the RO referenced 38 C.F.R. § 3.381 and found that the Veteran did not have a dental condition (1) resulting from another service-connected disability, or (2) as a due to Prisoner of War (POW) status of less than 90 days. 38 C.F.R. § 3.381(a) provides that the Veterans Benefits Administration (VBA) is to adjudicate claims for service connection of a dental disability for treatment purposes after the Veterans Health Administration (VHA) determines whether a veteran meets the basic eligibility requirements discussed in 38 C.F.R. § 17.161. 38 C.F.R. § 3.381(a) also indicates that, in performing its determination regarding eligibility requirements, VHA is to request that VBA make a determination regarding specific questions. In this case, it is unclear whether VHA made an eligibility determination at any point following the September 2019 Board remand as required by 38 C.F.R. § 3.381(a). Accordingly, a decision by the Board on whether the Veteran is entitled to service connection for a dental disability for treatment purposes would be premature at this time. Thus, the Board remands this issue so that VHA may make a determination regarding whether the Veteran satisfies basic eligibility requirements provided by 38 C.F.R. § 17.161. 2. Service Connection for an Eye Disability In September 2019, the Board remanded the issue of service connection for an eye disability for the provision of a VA examination. Following the Board’s remand, the requested VA examination was provided in December 2020. After physically examining the Veteran and reviewing his claims file, the December 2020 VA examiner opined that it was less likely than not that the Veteran’s diagnosed disabilities of bilateral glaucoma, bilateral combined cataracts, and bilateral posterior vitreous detachment were incurred in or caused by service. In support of this determination, the examiner stated that these disabilities “are not recognized standalone conditions for disability from Agent Orange.” The Board finds this VA medical opinion to be inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Specifically, the negative December 2020 opinion appears to base its conclusion upon the lack of glaucoma, combined cataracts, and posterior vitreous detachment being included in 38 C.F.R. § 3.309(e) as diseases presumptively linked to herbicide agent exposure. As stated above regarding service connection for hypertension, even though a condition may not be listed as presumptive under 38 C.F.R. § 3.309(e), it may still be linked to in-service herbicide exposure on a direct basis under 38 C.F.R. § 3.303(a). As such, the Board remands the issue of service connection for an eye disability for the provision of an additional VA medical opinion. 3. Service Connection for a Prostate Disability Similar to the issue of service connection for an eye disability, in September 2019, the Board remanded the issue of service connection for a prostate disability for the provision of a VA examination. The requested VA examination was provided in June 2020. Thereafter, etiological opinions were provided in June 2020 and July 2020. The Board finds that remand for an additional VA medical opinion is warranted because the July 2020 opinion raised the possibility that the Veteran’s currently-diagnosed benign prostatic hypertrophy (BPH) could have been caused or aggravated by hypertension. Having granted the Veteran service connection for hypertension above, service connection for a prostate disability on a secondary basis has been raised by the record and must be addressed prior to adjudication of the Veteran’s claim on its merits. See 38 C.F.R. § 3.310. 4. Service Connection for a Thyroid Disability Like the issue of service connection for an eye disability, the Board finds that remand of the issue of service connection for a thyroid disability is warranted for an additional VA medical opinion. Following the Board’s September 2019 remand, the Veteran was provided a VA thyroid and parathyroid conditions examination in June 2020 where he was diagnosed with hypothyroidism. After reviewing the Veteran’s claims file, the VA examiner provided a nexus opinion positively linking the Veteran’s diagnosis to his exposure to herbicide agents in the Republic of Vietnam. However, in support of this conclusion, the examiner referenced a study which found that an increased risk of thyroiditis was not significantly associated with herbicide exposure. Due to this conflict between the opinion’s conclusion and its reasoning, a clarifying VA medical opinion must be provided prior to adjudication of this issue on its merits. 5. Service Connection for a Skin Disability Regarding the issue of service connection for a skin disability, the Board finds that remand is warranted for the provision of a supplemental VA medical opinion. Specifically, in September 2019, the Board remanded this issue for the provision of a VA examination. As requested in the September 2019 Board remand directives, a VA examiner was to diagnose all current skin conditions and provide etiological opinions regarding any identified skin disability. Following the Board’s remand, the requested VA examination was provided in April 2020. In the etiological opinion that was provided in conjunction with the examination, the examiner addressed the diagnosed disabilities of psoriasis and tinea pedis. However, in a February 2014 VA examination which occurred during the pendency of the current claim, the Veteran was also diagnosed with onychomycosis. As the April 2020 VA examiner did not address onychomycosis, remand is warranted for an additional opinion to address this condition. 6. Increased Initial Rating for PTSD In light of the Board’s above grant of an earlier effective date for the award of service connection for PTSD, the AOJ will issue a rating decision implementing the Board’s grant and assign an initial rating for PTSD for the time period between May 19, 1981 and December 13, 1981 in the first instance. Additionally, the AOJ will consider, in the first instance, which version of the applicable rating criteria, which have been amended several times since 1981, are most favorable to the Veteran. Accordingly, as the Veteran’s increased rating issue is intertwined with this near-future rating action, the Board remands it as it is not yet ripe for review by the Board. 7. Entitlement to a TDIU; Entitlement to SMC based on the Need for Regular Aid and Attendance and/or at the Housebound Rate The Board finds that the issues of entitlement to a TDIU and entitlement to SMC are inextricably intertwined with the Board’s grant of service connection for a lumbosacral spine disability and entitlement to an initial increased rating for PTSD. Where a pending claim is inextricably intertwined with other claims currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the issues of entitlement to a TDIU and entitlement to SMC are remanded. 8. Entitlement to Recognition of S., R., and J. as Dependent Children of the Veteran; Entitlement to Recognition of A. and E. as Dependent Spouses of the Veteran As mentioned above in the section regarding an increased initial rating for PTSD, the AOJ will, following the issuance of this decision, issue a rating decision implementing the grant of an earlier effective date for the award of service connection for PTSD. Under 38 C.F.R. § 3.401(b), if the Veteran submits evidence of dependents within one year of notification of this near-future rating decision, he could have parties added to his award as dependents effective retroactively up to possibly May 19, 1981. Accordingly, the Board finds it premature at this time to adjudicate these dependency issues involving children S., R., and J., and spouses A. and E. Thus, the Board remands them as they are intertwined with the implementation of the earlier effective date issue granted above. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file—particularly those dated since November 2019. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. Refer the Veteran’s claim for service connection for a dental condition for treatment purposes to the appropriate VA Medical Center (VAMC) of VA to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161. 3. After Item (1) has been completed to the extent possible, send the Veteran’s claims file to an appropriate VA medical professional to issue a medical opinion regarding the Veteran’s claim for service connection for an eye disability. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the clinician. If the professional determines that a physical examination is necessary in order to provide the opinion, one should be scheduled. Thereafter, the professional should address whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current eye disabilities were caused by or related to service. In providing the requested opinion, the professional should explicitly address the Veteran’s contention that any of his current eye disabilities were caused by or related to his exposure to herbicide agents in the Republic of Vietnam. Notably, the absence of a disability as presumptively service-connectable under 38 C.F.R. § 3.309(e) does not foreclose the possibility that service connection may be warranted as due to herbicide exposure. As the Veteran has specifically raised this theory of entitlement, the examiner must explain why the diagnosed conditions are (at least as) or are not likely associated with his history of herbicide exposure, with citation to relevant peer-reviewed medical literature, as appropriate. The professional should consider medical and lay evidence dated both prior to and since the filing of the claim. The professional must provide a complete rationale for any opinion rendered. If the professional cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After Item (1) has been completed to the extent possible, send the Veteran’s claims file to an appropriate VA medical professional to issue a medical opinion regarding the Veteran’s claim for service connection for a prostate disability. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the clinician. If the professional determines that a physical examination is necessary in order to provide the opinion, one should be scheduled. Thereafter, the professional should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s BPH was proximately caused by his service-connected hypertension, to include any medication prescribed therefore. (b.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s BPH was aggravated (worsened beyond natural progression) by his service-connected hypertension. In providing a response to part (b), the professional is reminded that a permanent worsening of BPH is not a necessary prerequisite for the provision of a positive aggravation opinion. The professional should consider medical and lay evidence dated both prior to and since the filing of the claim. The professional must provide a complete rationale for any opinion rendered. If the professional cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. After Item (1) has been completed to the extent possible, send the Veteran’s claims file to an appropriate VA medical professional to issue a medical opinion regarding the Veteran’s claim for service connection for a thyroid disability. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the clinician. If the professional determines that a physical examination is necessary in order to provide the opinion, one should be scheduled. Thereafter, the professional should address whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current hypothyroidism was caused by or related to service. In providing the requested opinion, the professional should explicitly address the Veteran’s contention that his thyroid disability was caused by or related to his exposure to herbicide agents in the Republic of Vietnam. Notably, the absence of a disability as presumptively service-connectable under 38 C.F.R. § 3.309(e) does not foreclose the possibility that service connection may be warranted as due to herbicide exposure. As the Veteran has specifically raised this theory of entitlement, the examiner must explain why the hypothyroidism is (at least as) or is not likely associated with his history of herbicide exposure, with citation to relevant peer-reviewed medical literature, as appropriate. The professional should consider medical and lay evidence dated both prior to and since the filing of the claim. The professional must provide a complete rationale for any opinion rendered. If the professional cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 6. After Item (1) has been completed to the extent possible, send the Veteran’s claims file to an appropriate VA medical professional to issue a medical opinion regarding the Veteran’s claim for service connection for a skin disability. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the clinician. If the professional determines that a physical examination is necessary in order to provide the opinion, one should be scheduled. Thereafter, the professional should address whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current onychomycosis was caused by or related to service. In providing the requested opinion, the professional should explicitly address the Veteran’s contention that his onychomycosis was caused by or related to his exposure to herbicide agents in the Republic of Vietnam. Notably, the absence of a disability as presumptively service-connectable under 38 C.F.R. § 3.309(e) does not foreclose the possibility that service connection may be warranted as due to herbicide exposure. As the Veteran has specifically raised this theory of entitlement, the examiner must explain why the onychomycosis is (at least as) or is not likely associated with his history of herbicide exposure, with citation to relevant peer-reviewed medical literature, as appropriate. The professional should consider medical and lay evidence dated both prior to and since the filing of the claim. The professional must provide a complete rationale for any opinion rendered. If the professional cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.