Citation Nr: 21013293 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-12 447 DATE: March 9, 2021 ORDER Service connection for other specified trauma and stressor related disorder is granted for substitution purposes. FINDING OF FACT Resolving reasonable doubt in the appellant’s favor, the Veteran’s specified trauma and stressor related disorder was at least as likely as not related to his active service. CONCLUSION OF LAW The criteria for service connection for other specified trauma and stressor related disorder, for substitution purposes, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from December 1961 to September 1964. The Veteran died in September 2016 and the appellant is his surviving spouse who has been substituted for the Veteran in this appeal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). An informal hearing conference with a Decision Review Officer was conducted in November 2014 in lieu of a formal hearing and a report of that conference has been associated with the Veteran’s claims file. The Veteran requested a Board hearing before a Veterans Law Judge on his March 2015 substantive appeal (VA Form 9) during his lifetime. After VA was notified of his death, the Board proceeded to schedule the hearing with the appellant. The appellant was notified that a Board hearing had been scheduled for a date in July 2018 by way of letters dated in May and June 2018. These letters were sent to her address of record and were not returned as undeliverable. The appellant failed to appear for the scheduled Board hearing. To the Board’s knowledge, she has not requested that the hearing be rescheduled. Accordingly, the Board will proceed to adjudicate the claim as if the Veteran’s hearing request had been withdrawn. See 38 C.F.R. § 20.704(d). The Veteran’s initial October 2009 claim of service connection for a psychiatric disability (claimed as depression) was originally denied in an August 2010 rating decision on the basis that there was no medical evidence that the Veteran’s depression was related to service or a service-connected disability. The Veteran did not appeal this decision. Regardless, additional VA treatment records were subsequently associated with his claims file within a year of the August 2010 decision and these records include reports of a continuity of psychiatric symptomatology in the years since service. As these new records include evidence that the Veteran’s claimed psychiatric disability may have been incurred in service, the Board finds that new and material evidence was received within a year of the August 2010 rating decision. Hence, the August 2010 decision did not become final. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). The agency of original jurisdiction (AOJ) readjudicated and again denied the claim of service connection for a psychiatric disability (claimed as PTSD) in the June 2013 rating decision, from which the current appeal originates. Hence, the Veteran’s initial October 2009 claim of service connection for a psychiatric disability remains pending and the Board will adjudicate this issue on a de novo basis. This case was last before the Board in July 2018, when the appellant’s claim was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that it is unclear whether the appellant wishes to proceed as an accrued benefits claimant (which would have required consideration solely of the evidence present in the claims file at the time of the Veteran’s death) or a substitution claimant (which allows for additional development), but there is no prejudice here proceeding on additional development in light of the favorable outcome. Cf. Reliford v. McDonald, 27 Vet. App. 297 (2015) (holding that a claimant must be given the option of proceeding as an accrued benefits claimant or a substituted claimant); but see Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (regarding the doctrine of prejudicial error). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The appellant contends that the Veteran had a psychiatric disability related to events that he experienced in service. Specifically, the Veteran reported that while on patrol in Korea in approximately May 1962, he discovered the bodies of two Koreans who had been killed. He also reported that he was sent on temporary duty (TDY) to Vietnam during the Cuban Missile Crisis from approximately October to November 1962, during which time he witnessed dead bodies, had to lay out mine fields, and was exposed to a combat environment. Also, he contended that in approximately April 1963 he had to retrieve the body of a fellow service member who had been killed by a white phosphorus trip flare while on patrol in Korea. See December 2011 Statement. A review of the Veteran’s DD-214 reflects that his MOS during his military service was heavy weapons infantry man. Among his decorations were 2d Class Gunner, Expert Infantryman’s Badge, Expert 81mm Mortar Badge, Expert Sharpshooter Badge, Expert .45 ACP Badge, and Expert M-14 Rifle Badge. The Veteran’s military personnel records reflect that he was stationed in Korea from June 1962 to July 1963. Research provided by the Veteran reflects that Company D, 2nd Battle Group, 12th Cavalry, 1st Calvary Division, was equipped with weapons for “dust off medical evacuations.” See November 2015 Research. In February 2016, VA noted that after a review if the 1962 United States Army Station List, the 2nd Battle Group, 12th Cavalry was documented as being located at Nullo-Ri, South Korea. Unfortunately, due to the lack of unit records available, VA was are unable to document that the Veteran or personnel assigned to Company D, 2nd Battle Group, 12th Cavalry performed any specific duties on the Demilitarized Zone during June 1962 to July 1963. Taking into account the Veteran’s MOS as an infantryman, his station in Korea, and assignment to Company D, 2nd Battle Group, 12th Cavalry, 1st Calvary Division, the Board finds the Veteran credible as to his statement that he encountered dead bodies during his time in Korea. In January 2015, the Veteran was diagnosed with other specified trauma and stressor related disorder. This diagnosis was confirmed in December 2020. As there is no doubt that the Veteran was diagnosed with other specified trauma and stressor related disorder during the pendency of the claim and the Veteran was exposed to dead bodies during service, the remaining question is whether there is competent nexus evidence establishing a connection between the Veteran’s disability and service. In December 2020, following the Board’s July 2018 remand, a VA examiner opined that it was at least as likely as not that the Veteran’s diagnosis of other specified trauma and stressor related disorder was related to the Veteran’s stressors from his time in Korea. The examiner conducted a thorough review of the Veteran’s history and found that although the Veteran had been diagnosed with various psychiatric disorders throughout his life, the diagnoses reflected variations in trauma symptoms due to his in-service traumatic stressors and were, therefore, all due to the condition of other specified trauma and stressor related disorder. The Board finds the VA opinion to be persuasive as the rationale seems to link medical literature review with the specific circumstances of the Veteran’s military and medical history. In consideration of the opinions of record, along with the rest of the evidence, the Board finds the preponderance of the evidence is, at a minimum, in equipoise. As such, resolving reasonable doubt in the Veteran’s favor, service connection for of other specified trauma and stressor related disorder is warranted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gandhi, Rahil 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.