Citation Nr: 21025108 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-00 535 DATE: April 27, 2021 ORDER The application to reopen a previously denied claim of entitlement to service connection for vertigo (previously claimed as dizziness) is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as general anxiety disorder and depression, is granted. REMANDED Entitlement to service connection for vertigo is remanded. FINDINGS OF FACT 1. In a February 2014 decision, the RO denied service connection for vertigo. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the February 2014 decision includes evidence that relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for service connection for anxiety. 3. The evidence is at least evenly balanced as to whether the Veteran’s acquired psychiatric disorder, diagnosed as general anxiety disorder and depression, is related to his military service. CONCLUSIONS OF LAW 1. The February 2014 decision that denied the Veteran's claim for entitlement to service connection for vertigo is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. 2. New and material evidence has been received to warrant reopening the claim for service connection for vertigo. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, diagnosed as general anxiety disorder and depression, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to March 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for posttraumatic stress disorder (PTSD) and denied the Veteran’s application to reopen his previously denied claim for entitlement to service connection for vertigo. In July 2015 the Veteran filed a notice of disagreement (NOD) as to his vertigo and PTSD. In December 2017 the RO issued a statement of the case (SOC) and in December 2017 the Veteran timely filed a substantive appeal to the Board (via VA Form 9). On the December 2017 VA Form 9 the Veteran requested a Board hearing at a local VA office. In an April 2021 Statement in Support of Claim (VA Form 21-4138), the Veteran withdrew his hearing request. Thus, his request for a Board hearing is considered withdrawn and will not be held. 38 C.F.R. § 20.704(e). As a final preliminary matter, in May 2019, November 2019, May 2020, and January 2021 the Veteran submitted separate claims for service connection for depression, anxiety disorder, and depressive disorder. In response, the RO issued rating decisions in December 2019 and October 2020, which denied entitlement to service connection for the Veteran’s variously assessed psychiatric disabilities. The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Although the Veteran originally filed a claim for service connection for PTSD, the Board will broaden the Veteran’s claim and consider all psychiatric diagnoses raised by the record. As the Veteran’s appeal for PTSD was already pending during this time, the December 2019 and October 2020 decisions will not be discussed herein. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a February 2014 decision the RO denied service connection for vertigo (claimed as dizziness). The Veteran did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the decision. Thus, the RO’s February 2014 decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. As indicated in the discussion below, the evidence received since the February 2014 decision includes medical treatment records that pertains to the Veteran’s vertigo. This additional evidence relates to unestablished facts necessary to substantiate the claim of service connection for vertigo and raises a reasonable possibility of substantiating the claim. Reopening of the claim is therefore warranted. Acquired psychiatric disability, diagnosed as general anxiety disorder and depression Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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). A November 2006 VA treatment note indicates that the Veteran is diagnosed with anxiety. An August 2015 private psychiatrist diagnosed the Veteran with generalized anxiety disorder and chronic PTSD. Also, a February 2020 private treatment note indicates that the Veteran is diagnosed with depression. Thus, a current disability has been demonstrated. In a March 2015 Statement in Support of Claim for PTSD (VA Form 21-0781) the Veteran stated that when traveling to South Korea aboard the USS Barrett the Veteran became seasick. The Veteran became so sick he feared he was going to die and was not sent to the hospital. Due to the severity of his sickness two soldiers threatened to throw him overboard. In a November 2020 letter the Veteran reiterated these statements and stated this event affected his ability to sleep. The Veteran also reported to an August 2015 private psychiatrist that he witnessed a natural disaster at sea where some of his fellow shipmates died. As a lay person, the Veteran is competent to provide evidence of observable events and report the onset of psychiatric symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). After reviewing all the evidence of record, the Board finds the Veteran has consistently made statements regarding his in-service sea sickness and how these events affected his mental health. Thus, the in-service injury requirement has been met. The remaining question is whether the Veteran's acquired psychiatric disabilities are related to his military service. An August 2015 private treatment record contains a diagnosis of generalized anxiety disorder. This diagnosis was based on an event reported by the Veteran in which he witnessed the death of his fellow shipmates. The Board considers the August 2015 private treatment note as an implicit nexus opinion given the context in which the diagnosis was made. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, the August 2015 private treatment note is entitled to probative weight. Moreover, there is no contrary medical opinion in the evidence of record. Although there is nothing in the Veteran's STRs that specifically document any mistreatment or incidents where the Veteran sought help from a mental health professional, the Veteran has consistently maintained that he experienced traumatic events while being shipped to South Korea and that his acquired psychiatric disabilities are a direct result of this experience. Moreover, unlike the criteria for service connection for PTSD, there is no requirement for verification of a stressful event in service of the claim is for service connection for a psychiatric disorder other than PTSD. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010) (there are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally). In addition, while the Board could again remand the claim for another medical opinion, such action could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above evidence is sufficient to decide the claim. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's acquired psychiatric disability, diagnosed as generalized anxiety disorder and depression, is related to the fear he experienced in service while aboard the USS Barrett. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for an acquired psychiatric disability, diagnosed as generalized anxiety disorder and depression, is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Although the Veteran originally filed a claim for PTSD, there are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In the present case, there is no evidence that there are symptoms of PTSD that are distinguishable from his acquired psychiatric disability. Consequently, the Veteran will be compensated for all of his psychiatric symptoms and the Board need not specifically address the issue of entitlement to service connection for PTSD. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (Board erred in failing to discuss or assess the separate effects of claimant’s service-connected and non-service-connected disabilities and whether, standing alone, his service-connected disabilities warranted an award); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when effects of service-connected and non-service-connected disabilities cannot be separated, reasonable doubt requires that the signs and symptoms should be attributed to the service-connected disabilities). REASONS FOR REMAND Entitlement to service connection for vertigo is remanded. The Veteran has not been afforded a VA examination for his claimed vertigo. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when: (1) the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability; (2) the record indicates that the disability or symptoms of disability may be associated with active service; and (3) the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A claimant's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id. at 83. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. There must, however, be sufficient evidence of such a relationship to trigger VA's duty to provide an examination or obtain a medical opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). A conclusory generalized lay statement suggesting a nexus between a current disability and service is not sufficient, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Id. at 1278-1279. An August 2005 VA treatment note indicates that the Veteran experienced dizziness and diagnosed him with vertigo. In a March 2015 VA Form 21-0781 the Veteran stated that when traveling to South Korea aboard the USS Barrett the Veteran became seasick. The Veteran felt dizzy and stated that his vertigo has continued since his military service. Although the Veteran filed a claim for dizziness, the Board has expanded the matter on appeal as a claim of service connection for dizziness to include vertigo. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). As the Veteran stated he has continuous symptoms of feeling dizzy, there is competent evidence of a current disability or persistent or recurrent symptoms of a disability. Moreover, a February 1965 STR indicates that the Veteran experienced pain in his right side which lasted for 7 days. Taken together, the February 1965 STR and the Veteran’s lay statements satisfy the in-service injury or disease requirement. Given the "low threshold" for an examination and medical opinion as announced in McLendon, there is evidence of persistent or recurrent symptoms of vertigo that may be associated with service. As there is evidence that the Veteran has symptoms or disability that may be associated with an in-service injury or have its onset in service, a VA examination or opinion is warranted on this issue and a remand is warranted. The matters are REMANDED for the following action: Request an opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s vertigo and dizziness symptoms. If an examination is required, one should be conducted, to include via telehealth if appropriate. The clinician should indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s vertigo or any related symptoms are due to or had their onset during service, or is otherwise related to service. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.