Citation Nr: 23005751
Decision Date: 01/30/23	Archive Date: 01/30/23

DOCKET NO. 15-41 668
DATE: January 30, 2023

ORDER

New and material evidence having been submitted, the previously denied claim of entitlement to service connection for dementia as a residual of a traumatic brain injury (TBI) is reopened, and to this extent only, the appeal is granted.

Service connection for dementia as a residual of a traumatic brain injury (TBI) is granted.

Service connection for a low back arthritis with recurrent lumbar sprains is granted. 

Service connection for recurring dermatitis and actinic keratosis of the skin is granted. 

Service connection for allergic conjunctivitis of both eyes is granted. 

Service connection for major depressive disorder with anxiety as secondary to now service-connected dementia (from a TBI) is granted.  

REMANDED

Service connection for a LEFT ankle disorder is remanded.

Service connection for a LEFT knee disorder is remanded.

Service connection for hemorrhoids is remanded.

Service connection for posttraumatic stress disorder (PTSD) is remanded.

Service connection for cataracts and diabetic retinopathy of both eyes is remanded.

FINDINGS OF FACT

1. An earlier September 2010 rating decision denied service connection for dementia as a residual of a traumatic brain injury (TBI).  The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period.

2. A private nexus opinion / evaluation and a medical treatise abstract, associated with the claims file subsequent to the final September 2010 rating decision, are not cumulative and redundant of evidence previously of record.  They also raise a reasonable possibility of substantiating the Veteran's claim of service connection for dementia as a residual of an in-service TBI.      

3. The Veteran engaged in combat with the enemy during his service with the U.S. Army in Vietnam in the late 1960s when a rocket or mine struck a gun truck he was riding in, launching him out of the vehicle, knocking him unconscious, and thus causing a traumatic brain injury (TBI).  The in-service rocket / mine attack also left metallic fragments in his skull.  

4. The evidence of record is "approximately" balanced on whether prior to his death the Veteran's dementia was a residual of the combat-related "moderate" or "severe" TBI that occurred during his service in Vietnam in the late 1960s.

5. Prior to his death, the Veteran had low back arthritis that developed over time post-service as the result of in-service duties involving carrying heavy equipment and physical training, consistent with his military occupational specialty (MOS) as a motor vehicle operator and mechanic in the Army from 1965 to 1987. 

6. Prior to his death, the Veteran had low back sprains / strains that first manifested during his period of military service in the U.S. Army from 1965 to 1987.  This condition continued to intermittently reoccur or flare-up post-service.

7. Prior to his death, the Veteran had recurring dermatitis and actinic keratosis of the skin that first manifested during his period of military service in the U.S. Army from 1965 to 1987.

8. Prior to his death, the Veteran had allergic conjunctivitis of both eyes that first manifested during his period of military service in the U.S. Army from 1965 to 1987 and continued to intermittently occur post-service.

9. Prior to his death, the Veteran developed major depressive disorder with anxiety proximately due to, the result of, or as a component of his now service-connected dementia (from a TBI).

CONCLUSIONS OF LAW

1. New and material evidence sufficient to reopen the claim of service connection for dementia as a residual of a TBI has been received after the final September 2010 rating decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 

2. Resolving all reasonable doubt in his favor, the criteria have been met for service connection for dementia as a residual of an in-service TBI.  38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d), 3.304, 3.310(d).  

3. The criteria have been met for service connection for low back arthritis with recurrent lumbar sprains.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

4. The criteria have been met for service connection for recurring dermatitis and actinic keratosis of the skin.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria have been met for service connection for allergic conjunctivitis of both eyes.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. The criteria have been met for secondary service connection for major depressive disorder with anxiety.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.155(d)(2), 3.310(a); Bailey v. Wilkie, 33 Vet. App. 188 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1965 to August 1967 and from July 1968 to March 1987 in the U.S. Army.  The Veteran served in the Republic of Vietnam during the Vietnam era in the 1960s.  During this time, he was awarded the Republic of Vietnam Gallantry Cross, the Vietnam Campaign Medal, the Vietnam Service Medal, the Meritorious Service Medal, the Army of Occupation Medal, and the National Defense Service Medal, among other awards.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

In October 2019, the Veteran's spouse (the appellant), on behalf of the Veteran (who had dementia), testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ).  The transcript of this hearing is associated with the claims file.   

In February 2020, the Board remanded the instant appeal for further development.  This case has since been returned to the Board for appellate review, after the AOJ substantially complied with some aspects of the Board's remand order.  Stegall v. West, 11 Vet. App. 268, 271 (1998).   

Unfortunately, during the course of his appeal, the Veteran died in March 2020.  The appellant is the Veteran's surviving spouse.  In October 2021, the appellant filed a Request for Substitution of Claimant Upon Death of Claimant (VA Form 21P-0847).  Although this Request for Substitution was untimely, in a June 2022 Board decision, the Board applied the concept of "equitable tolling" to determine that the circumstances surrounding the COVID-19 pandemic were an "extraordinary circumstance" beyond the Appellant's control, such that she was excused for her failure to file her Request for Substitution in a timely fashion.  See Bove v. Shinseki, 25 Vet. App. 136 (2011) (per curiam).  As such, in the June 2022 Board decision, the Board accepted the appellant as the Veteran's substitute for purposes of processing his appeal to completion.  See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010.  See also 79 Fed. Reg. 52977  52985 (Sept. 5, 2014).  Since the appellant has been recognized as a valid substitute, she has the same rights regarding the submission of evidence and hearings as would have applied to the Veteran had he not died.  See 38 C.F.R. § 3.1010(f)(3).  

With regard to another preliminary matter, the Board has recharacterized / reframed the previous single service connection for PTSD issue into three different issues (to now include PTSD, dementia, and major depressive disorder).  These issues are listed on the first and second pages of the present Board decision.  In this regard, in statements and emails and various forms submitted by the appellant, dated in November 2013, March 2014, August 2014, October 2021, July 2022, October 2022, and during her October 2019 Travel Board hearing testimony, the issues of service connection for dementia (a neurocognitive disorder) and service connection for depression / anxiety were reasonably raised within the context of the pending PTSD appeal.  Notably, all three of these conditions are similarly classified as "mental disorders" under the Rating Schedule provisions of 38 C.F.R. § 4.130.  

In this vein, VA must fully and sympathetically develop a veteran's claim to its optimum, and that requires VA to determine all potential claims raised by the evidence, applying all relevant laws and regulations.  Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  The U.S. Court of Appeals for Veterans Claims (Court) has held that a claimant's identification of the benefit sought does not require technical precision.  See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007).  Thus, the Board has considered all relevant symptoms and disorders identified in the record, when recharacterizing the Veteran's service connection for PTSD claim on appeal.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a psychiatric disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).  

In fact, the Federal Circuit has advised that in determining the scope of a claim, VA must look to all possible diagnoses, conditions, and illnesses that a pro se non-expert claimant could have reasonably expected to have included in their claim as well as the clinical evidence developed in processing that claim.  Murphy v. Wilkie, 983 F.3d. 1313, 1319 (Fed. Cir. 2020).  Thus, the Board has tried to address every disabling mental health / neurocognitive condition reasonably raised within the current PTSD appeal.  In doing so, the Board concludes that splitting up the previous single PTSD issue into three different issues (PTSD, dementia, and major depressive disorder), for independent adjudication, is the most proper way of handling the Veteran's appeal.  See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (VA is free to dismember a claim and adjudicate it in separate pieces).  On that point, the Federal Circuit has confirmed that the procedural history and statements by the claimant are relevant in determining the claimant's reasonable expectations and understanding, as service connection issues may be properly bifurcated and adjudicated separately if necessary.  Murphy, 983 F.3d. at 1319.  

Finally, in his November 2015 VA Form 9, the Veteran raised the issue of whether there was clear and unmistakable error (CUE) in the earlier, final September 2010 rating decision that had originally denied service connection for dementia due to a TBI.  See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105.  As this CUE issue has not been addressed or adjudicated by the AOJ, the Board does not have jurisdiction over it.  See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006).  Accordingly, the CUE issue is referred to the AOJ for appropriate action.  See 38 C.F.R. § 20.904(b) (2021) (formerly 38 C.F.R. § 19.9(b) (2018); see also Young v. Shinseki, 25 Vet. App. 201, 203-04 (2012) (determining that referral of a matter is appropriate only when the Board lacks jurisdiction over the matter being referred).  In fact, the Board in its earlier February 2020 Board remand already referred this CUE issue to the AOJ for the appropriate action.  But there was no subsequent action by the AOJ.  Moreover, the appellant (surviving spouse) reiterated in a recent October 2022 Decision Review Request: Supplemental Claim (VA Form 20-0995) that she wished to pursue the motion for CUE in the September 2010 rating decision that originally denied service connection for dementia due to a TBI.  

New and Material Evidence (NME)

New and material evidence is required in order to reopen a claim that has been previously adjudicated in a final decision.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

For legacy claims to reopen decided prior to February 19, 2019, a claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the AOJ has already addressed the question.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995).  

The Court has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court has emphasized that the threshold is low for purposes of reopening a claim.  That is, reopening a claim does not require new and material evidence regarding each element of the claim that was not proved in the prior decision.  Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010).  It is unnecessary for the newly presented evidence to be probative of all the elements required to award the claim; rather, the newly presented evidence only needs to be probative with regard to each element that was a specified basis for the last disallowance.  Evans v. Brown, 9 Vet. App. 273, 284 (1996).  Stated another way, new and material evidence need only be submitted with respect to one previously unestablished fact, in order to reopen the claim.  Shade, 24 Vet. App. at 12022.  In short, there is a low threshold for determining whether evidence is new and material. 

For the purpose of reopening a claim, the credibility, but not the weight, of newly submitted evidence is presumed, unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

Mere offering of an alternative theory of entitlement for service connection (such as secondary service connection) does not constitute new and material evidence sufficient to reopen the claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005).  However, evidence offered in support of an alternative theory of entitlement (e.g., clinical evidence of secondary service connection) can be sufficient to warrant reopening of the claim, if it meets the definition of new and material.  Boggs v. Peake, 520 F.3d 1330, 133637 (Fed. Cir 2008).

In an earlier September 2010 rating decision, the AOJ denied service connection for dementia due to a TBI.  The Veteran was notified of the September 2010 rating decision and of his appellate rights, but he did not submit a notice of disagreement (NOD), or new and material evidence, within one year of the notice of this rating decision.  Therefore, the September 2010 rating decision became final for the dementia issue.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2010).

In the final September 2010 rating decision, the AOJ denied service connection for dementia due to a TBI.  The AOJ determined that there was no evidence demonstrating a nexus or link between the Veteran's current dementia and any event occurring during his period of active duty in the Army from 1965 to 1987.  See 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  The AOJ also determined that the Veteran's service treatment records (STRs) dated from 1965 to 1987 were negative for any complaint, treatment, or diagnosis of an in-service head injury or dementia.  

Here, the Board finds that new and material evidence has been received with respect to the issue of service connection for dementia as a residual of a TBI, subsequent to the final September 2010 rating decision.  See 38 C.F.R. § 3.156(a).  Specifically, the record now contains a favorable private medical opinion demonstrating a nexus between current dementia and an in-service TBI the Veteran experienced during combat in Vietnam in the 1960s.  See May 2007 private Neuropsychology Services of Austin evaluation by a private neuropsychologist, received by the AOJ in April 2012.  In addition, the record now contains a favorable medical treatise abstract concluding that military risk factors for a current diagnosis of dementia or Alzheimer's disease include the occurrence an in-service TBI.  See August 2013 medical treatise abstract titled "Military Risk Factors for Cognitive Decline, Dementia, and Alzheimer's Disease."  Assuming the credibility of this evidence, this medical evidence relates to a previously unestablished fact (the lack of a nexus to an in-service event) and raises a reasonable possibility of substantiating the dementia claim on appeal.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  Therefore, this evidence is new and material evidence.  The claim for service connection for a dementia as a residual of an in-service TBI is reopened.  

Service Connection (SC)

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service  the "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Also, under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C. § 1154(a).  Thus, there is no categorical rule that medical evidence is required when the determinative issue is either the existence of a current disability or a nexus to service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record.  Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020).  Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet.  See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007).  The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection.  Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).  The claimant is entitled to the benefit-of-the-doubt when the competing evidence is in "approximate balance" or "nearly equal."  That is, exact equipoise is not required to trigger the favorable benefit-of-the-doubt rule.  Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc).  

A.  Dementia as a Residual of a TBI

The Veteran and the appellant contend that he gradually developed dementia as a residual of an in-service TBI from a rocket attack or a mine that occurred in combat in Vietnam during active duty in the Army in the late 1960s.  Specifically, the Veteran was riding in a gun truck in order to guard a fuel convoy, consistent with his military occupational specialty (MOS) as a motor vehicle operator and mechanic.  An enemy rocket attack or mine hit his truck, which threw him out of the vehicle.  He landed on his head and suffered facial fractures.  He experienced a loss of consciousness lasting several weeks.  The in-service rocket attack also left metallic fragments in his skull.  Immediately after the event, he was hospitalized at a military hospital in Vietnam for three weeks, although the STR military inpatient hospitalization report is not of record.  In fact, this particular TBI event was not conclusively documented in his STRs.  Post-service, in the early 2000s, he began to experience memory loss and cognitive impairment from dementia associated with this in-service TBI.  Post-service, he died in part from dementia in March 2020.  See December 9, 2011 informal claim for service connection; April 2012 buddy statements from sister, ex-wife, mother-in-law, and friends; August 2014 and October 2022 statements from spouse; October 2019 Travel Board hearing transcript; October 2021 email from appellant spouse; July 2022 Decision Review Request: Supplemental Claim (VA Form 20-0995); May 1980 STR from ophthalmology service report; May 2007 private Neuropsychology Services of Austin evaluation by a private neuropsychologist; September 2009 VA computerized tomography (CT) scan of head; November 2011 VA MHC initial assessment; June 2012 and July 2012 VA medical opinions for PTSD by a VA psychologist; and October 2022 VA medical opinion for PTSD by a VA psychologist.

Upon review of the evidence, service connection for dementia as a residual of an in-service combat related TBI is granted.

With regard to a preliminary issue, under 38 C.F.R. § 3.310(d), in a veteran who has a service-connected TBI, the following shall be held to be the proximate result of the service-connected TBI, in the absence of clear evidence to the contrary: (i) Parkinsonism, including Parkinson's disease, following moderate or severe TBI; (ii) Unprovoked seizures following moderate or severe TBI; (iii) Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe TBI; (iv) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; or (v) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI.  Thus 38 C.F.R. § 3.310(d)(1) entails presumptive service connection for the above disabilities.

However, although post-service the Veteran did indeed develop dementia and depression (alleged residuals of a TBI), which are both listed under 38 C.F.R. § 3.310(d)(1) as presumptive conditions associated with a TBI injury, his dementia was not manifest within 15 years following a moderate or severe TBI.  Nor was his depression manifest within 3 years of a moderate or severe TBI.  See 38 C.F.R. § 3.310(d)(1)(i) and (iv).  Therefore, presumptive service connection for the above disabilities under the TBI provisions of 38 C.F.R. § 3.310(d)(1) is not warranted here.

Nonetheless, direct service connection or secondary service connection may also be awarded under 38 C.F.R. § 3.310(d)(2) for any condition not meeting the above criteria, under the generally applicable provisions of service connection.  This would entail consideration of non-presumptive service connection, established by the evidence of record.  Therefore, the Board will consider the Veteran's dementia as an alleged TBI residual on a non-presumptive basis as well.  

The determination of the severity level (mild, moderate, or severe) of the underlying TBI is based on the TBI symptoms at the time of the injury or shortly thereafter.  The TBI does not have to meet all the criteria listed under a certain severity level in order to classify the TBI at that severity level.  If a TBI meets the criteria in more than one category of severity, then the TBI should be ranked at the highest level in which a criterion is met, except where the qualifying criterion is the same at both levels.  38 C.F.R. § 3.310(d)(3). 

A TBI is mild in severity if there is normal structural imaging, loss of consciousness for up to 30 minutes, alteration of consciousness or mental statement for a moment to up to 24 hours, post-traumatic amnesia for up to a day, and a Glasgow Coma Scale ranging from 13 to 15.  A TBI is moderate in severity if there is normal or abnormal structural imaging, loss of consciousness from 30 minutes to less than 24 hours, alteration of consciousness or mental state for more than 24 hours, post-traumatic amnesia from one to 7 days, or Glasgow Coma Scale from 9-12.  A TBI is severe if there is normal or abnormal structural imaging, loss of consciousness for more than 24 hours, alteration of consciousness or mental state for more than 24 hours, post-traumatic amnesia for more than 7 days or a Glasgow Coma Scale of 3-8.  See 38 C.F.R. § 3.310(d)(3).

The resultant disabling effects of a TBI event beyond those that follow immediately from the acute injury to the brain are known as TBI residuals or TBI sequelae.  The signs and symptoms of TBI residuals can be organized into the three main categories of physical, cognitive, and behavioral / emotional residuals for evaluation purposes.  TBI residuals can resolve in a short period of time, persist chronically or permanently, or may also have a delayed onset.  Notably, "dementias", "memory impairment", and "attention and concentration deficits" are listed as examples of known TBI residuals, in the "cognitive" and "behavioral / emotional" residual categories in a VA table contained in the VA Adjudication Procedures Manual (M21-1), V.iii.12.B.1.d. (April 7, 2022).

The Court has emphasized in recent VA case law that the Board is required to consider "relevant provisions" of the M21-1 in some circumstances, especially when favorable to the veteran's case.  See, e.g., Stover v. McDonough, 35 Vet. App. 394 (2022); Andrews v. McDonough, 34 Vet. App. 216, 223 (2021); Wilson v. McDonough, 35 Vet. App. 75, 80 (2021).

The first and most fundamental requirement for any service-connection claim is the existence of a current disability.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).  Here, prior to his death, the Veteran was diagnosed with dementia.  See May 2007 private Neuropsychology Services of Austin evaluation by private neuropsychologist; July 2009 and September 2009 VA mental health notes; November 2009 VA addendum note; June 2012 and July 2012 VA medical opinions for PTSD by VA psychologist; May 2014 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (VA Form 21-2680); and 2011 to 2012 VA treatment records.  And as a lay person throughout the appeal, the Veteran, the appellant, friends, and family of the Veteran have also competently and credibly described the gradual development of signs and symptoms of dementia, beginning around the year 2000, including memory loss and concentration difficulties.  Barr, 21 Vet. App. at 308.  Thus, prior to his death, the Veteran clearly had a current dementia disability, potentially stemming from an in-service TBI.  This fact is clear.  

Initially, the Veteran's dementia is not listed as an enumerated "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply here.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Instead, 38 C.F.R. § 3.303(a) and (d) apply in the present case for the Veteran's dementia as an alleged TBI residual.  

As to the second requirement of in-service incurrence, STRs dated from 1965 to 1987 provide some limited evidence in support of the occurrence of an in-service TBI from a rocket attack or a mine that occurred in combat in Vietnam during active duty in the Army in the late 1960s.  Specifically, in a July 1968 STR report of medical history at an enlistment examination for his second period of service in the Army, the Veteran reported a history of head trauma, with no further elucidation on the matter.  In addition, in a May 1980 STR ophthalmology service note, the Veteran reported that in 1967 in Vietnam he sustained four facial fractures and the removal of a lipoma from the left occiput of the skull as a result of a "rocket blast."  Moreover, the Veteran's service personnel records (SPRs) confirm that he served in multiple combat tours in Vietnam in the 1960s as a motor transport operator, a heavy-duty truck driver, and a mechanic.  The Veteran did not report any other TBI symptomatology in his STRs during active duty.  And any STR inpatient records during his hospitalization in Vietnam in the late 1960s are missing and unavailable.  Post-service, several medical records, including a CT scan of the brain, assessed metal fragments in the Veteran's head from a combat wound due to a rocket attack in Vietnam.  See November 2009 VA addendum note; September 2009 VA CT scan of head (revealing metallic fragments in the scalp and left frontal region of the Veteran's skull due to an in-service head injury).  In summary, STRs and several post-service clinical records provide some evidence in support of the incurrence of a TBI during a rocket attack in Vietnam in the late 1960s, including metallic fragments in the Veteran's skull.  See 38 C.F.R. § 3.303(a).  

In any event, after review of the medical and lay evidence of record, the Veteran's particular in-service TBI injury would be classified as "moderate" or "severe" due to loss of consciousness or alteration of consciousness or mental state for more than 24 hours.  See 38 C.F.R. § 3.310(d)(3).  In short, the evidence listed above in the paragraph concerning the Veteran's contentions, namely, the Veteran's STRs, post-service VA and private treatment records, post-service VA and private examinations, and relatively consistent lay evidence of record provide support of the incurrence of a "moderate" or "severe" TBI during a rocket attack while on active duty in Vietnam in the late 1960s.  See 38 C.F.R. § 3.303(a).  

As to the second requirement of an in-service incurrence, under 38 U.S.C. § 1154(b), there is a relaxed evidentiary standard for proving the onset or aggravation of an injury or disease during combat.  The combat rule means that, generally, VA will accept as true a combat veteran's report of injury or disease in service, even if there is no official record of the incident, as long as the report is consistent with the circumstances, conditions, or hardships of such service.  The in-service incurrence of such injury or disease, however, may be rebutted by clear and convincing evidence to the contrary.  See 38 C.F.R. § 3.304(d) (general combat rule).  The combat rule does not establish a presumption of service connection but eases the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected.  See Caluza v. Brown, 7 Vet. App. 498 (1995).  That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition.  Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007).  

Participation in combat is a determination that is to be made on a case-by-case basis, and it requires that a veteran have "personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality."  See Sizemore v. Principi, 18 Vet. App. 264 (2004); VAOPGCPREC 12-99 (October 18, 1999).  Evidence that the veteran participated in attacking or defending an attack of the enemy would ordinarily show he had engaged in combat.  Id.  The Federal Circuit Court has confirmed that section 1154(b) requires more than a veteran having served in a "combat area" or "a combat zone" or in a particular occupational specialty; it requires personal participation in combat with the enemy, meaning he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008).  Certain decorations, such as a Combat Action Ribbon (CAR) or a Purple Heart, are evidence of combat participation.  However, receipt of a decoration is not the only acceptable evidence of engagement.  The Court has held that evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence.  Gaines v. West, 11 Vet. App. 353, 359 (1998).  

With regard to in-service combat exposure, the Veteran's service personnel records (SPRs) confirm that he served in a combat zone on the ground in Vietnam on multiple tours in the late 1960s and early 1970s during the Vietnam War.  He received medals and awards such as the Republic of Vietnam Gallantry Cross, the Vietnam Campaign Medal, the Vietnam Service Medal, the Meritorious Service Medal, the Army of Occupation Medal, and the National Defense Service Medal, several of which may provide evidence in support of participation in combat.  Also, his SPRs and DD Form 214 reveal his MOS in Vietnam as a motor transport operator, a heavy-duty truck driver, and a mechanic, which are also supportive of the probability of being subject to enemy attacks on occasion, given his repeated description of enemy rocket attacks while riding in a truck protecting a fuel convoy.  SPRs also document that he participated in the Vietnam Counteroffensive Campaign - Phases I, II, and III; the Vietnam Summer-Fall 1969 Campaign; the Vietnam Winter-Spring 1970 Campaign; and the Sanctuary Counteroffensive in Vietnam.  The Veteran's alleged combat incident of a rocket / mine attack is also consistent with the circumstances, conditions, or hardships of his service in Vietnam as a motor vehicle operator protecting a fuel convoy.  See 38 U.S.C. § 1154(b).  In addition, the record shows he and his family members credibly related his combat experiences multiple times to VA and private medical personnel.  Therefore, there is sufficient evidence the Veteran engaged in combat during his military service in Vietnam by way of exposure to a rocket / mine attack.  See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008).  It follows that the lay statements of record from the Veteran and his family members, several STRs, and several post-service medical records are satisfactory to show the incurrence of a TBI from a rocket attack or a mine that occurred in combat in Vietnam during active duty in the Army in the late 1960s.  See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d).  There is no clear and convincing evidence to the contrary.  

In fact, the Federal Circuit Court has held that the so called "combat presumption" applies not only to establishing the potential cause of a disability (such as a rocket attack), but also to whether a disability itself (a TBI) was incurred while in service.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  While addressing the particular factual scenario in Reeves, the Federal Circuit determined that if in-service diminished hearing, as opposed to just acoustic trauma, was established by way of the statutory combat rule, the veteran would then only have to show that his hearing loss disability incurred in service was a chronic condition that persisted beyond active service.  Id.  The Board concludes that the same reasoning utilized in Reeves could apply to his alleged in-service TBI by way of the combat rule.  That is, in the present case, there is satisfactory lay evidence of at least one TBI occurring during service, after exposure to a rocket / mine attack during an instance of combat with the enemy in Vietnam in the late 1960s.  Thus, the Board will now turn to whether the Veteran's in-service TBI during combat in Vietnam was a chronic condition that caused the later development of a residual condition such as dementia after retirement from active duty in 1987.  That is, although the occurrence of an in-service TBI is confirmed through satisfactory evidence of combat and certain documentary evidence, the Veteran and the appellant must still present evidence of a nexus linking his in-service TBI to a current residual condition such as his dementia.  Dalton, 21 Vet. App. at 36-37.

As to the third requirement of a nexus, post-service, the claims file contains a mix of favorable and unfavorable medical opinions on whether there is a nexus or link between the Veteran's post-service dementia and his confirmed in-service "moderate" or "severe" TBI during his active duty service in Vietnam in the late 1960s with the U.S. Army.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  

With regard to the favorable evidence of a nexus for dementia as a residual of a TBI, the Board has considered the following evidence of record:  A May 2007 private Neuropsychology Services of Austin evaluation by a private neuropsychologist discussed the Veteran's inpatient hospitalization in Vietnam during his military service when a rocket blew him out of his vehicle, rendering him unconscious after he landed on his head.  After extensive testing, the private neuropsychologist diagnosed the Veteran with moderate dementia, "probably" due to multiple TBIs, including the one suffered by the Veteran during combat in Vietnam by way of a rocket attack.  In addition, July 2009 and September 2009 VA mental health notes, citing the May 2007 private report, came to the same favorable conclusion  the Veteran's dementia was due to multiple etiologies, including the combat-related TBI rocket attack during active duty in Vietnam.  An August 2010 VA mental health note assessed a diagnosis of dementia due to a TBI.  A November 2011 VA MHC initial assessment indicated that the Veteran apparently was involved in a rocket explosion during combat in Vietnam where he was thrown from a vehicle, suffering a TBI in the process.  He has a history of decreased memory due to dementia since the year 2000. 

The Court has held that VA cannot reject a medical opinion or medical evidence simply because it is based on a history supplied by the veteran and that the critical question is whether that history was accurate.  Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran).  Here, the Veteran's reported history of an in-service TBI during combat in Vietnam in the late 1960s, followed by the post-service progression of dementia over the years after the in-service TBI, are for the most part accurate and verified by several of his STRs and post-service VA and private treatment records and examinations.  The above VA and private clinical personnel properly considered the Veteran's reported lay history, which the Board has found to be credible and somewhat supported by the clinical evidence of record.  These VA and private clinicians were "informed of the relevant facts" and correct medical history in rendering their favorable medical conclusions for the Veteran's current dementia residuals of an in-service combat related TBI in Vietnam.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

With regard to the favorable evidence of a nexus for dementia residuals of a TBI, the Board has also considered an August 2013 medical treatise abstract titled "Military Risk Factors for Cognitive Decline, Dementia, and Alzheimer's Disease."  The abstract advised that delayed neurological health consequences of environmental exposures during military service have been generally underappreciated.  Military risk factors for dementia and Alzheimer's Disease include multiple factors, such as a traumatic brain injury (TBI).  The degree of exposure to combat may also influence risk for dementia.  Using available data on the association of dementia and Alzheimer's Disease with specific exposures and risk factors, the authors conservatively estimated 423,000 new cases of these diseases in veterans by 2020, including 140,000 excess cases associated with specific military exposures.  On this point, medical treatise evidence can provide important support when combined with an opinion of a medical professional.  Mattern v. West, 12 Vet. App. 222, 228 (1999).  Yet the Board is also cognizant that in general, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive."  Sacks v. West, 11 Vet. App. 314, 317 (1998).  The weight to be given medical treatise or article evidence is a matter within the sound discretion of the fact finder.  See e.g., In re Joint E. & S. Dist. Asbestos Litig., 52 F.3d 1124, 1137 (2d Cir. 1995).  

However, with regard to the unfavorable, negative evidence of record, there is probative medical evidence that is against a nexus to service for the Veteran's dementia as a residual of an in-service TBI.  For example, in multiple STRs the Veteran denied any history of an in-service TBI.  See e.g., June 1985 STR report of medical history at an "over 40 examination" and January 1987 STR report of medical history at retirement examination.  Also, in post-service June 2012 and July 2012 VA medical opinions for PTSD, a VA psychologist concluded that it cannot be determined if a combat related TBI rocket attack in which the Veteran was thrown from a vehicle in Vietnam resulted in his current severe dementia.  In short, these in-service and post-service medical records provide probative evidence against the dementia claim.  

As currently codified, VA law defines the "benefit of the doubt" doctrine as:

	When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an "approximate" balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.

38 U.S.C. § 5107(b).  See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   

Here, there is an approximate balance of the positive and negative evidence on the issue of service connection for dementia as a residual of an in-service TBI.  Certain elements of both the positive and negative medical opinions and clinical evidence of record in this case are probative.  All of the medical opinions and clinical evidence have their respective flaws as well.  But there is no apparent basis for wholly rejecting the favorable medical opinions of record.  In light of the contrasting, yet equally probative medical opinions and clinical evidence in the present case, in such situations, the benefit of the doubt is resolved in the Veteran's favor.  

The Federal Circuit Court recently emphasized that under 38 U.S.C. § 5107(b) and under its previous holding of Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001), the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balancei.e., "nearly equal"but does not require that the evidence be in exact equipoise.  Lynch, 999 F.3d at 1394.  In fact, most recently, the Federal Circuit Court in Mattox v. McDonough, No. 2021-2175, 2023 U.S. App. LEXIS 393 (Fed. Cir. Jan. 9, 2023) concluded that in assessing whether the evidence is in "approximate balance" or in equipoise under 38 U.S.C. § 5107(b), VA does not simply tally up the number of pieces of evidence for and against the claim (count the positive and negative evidence).  Instead, VA must assess the quality of this positive and negative evidence (by assessing the probative value, credibility, and weight of this evidence), to determine if the evidence is in approximate balance.  Id.  The Board in the instant Veteran's case has followed the rationale of the Federal Circuit's holding in Mattox.  

In making this favorable determination for the Veteran, the Board has considered that evidence is rarely neat and tidy.  Therefore, it is expected that the Board will at times have to construct a complete narrative by filling in gaps with inferences and common sense.  There is no requirement that all factual questions be resolved by reliance on direct, rather than circumstantial, evidence.  The fact finding of the Board in this case is entitled to deference and is not clearly erroneous.  To the extent that the Board made inferences and considered circumstantial evidence in its analysis of the evidence, this type of reasoning is well within the discretion of a fact finder.  Although another fact finder may have declined to make the same inference, that does not mean that the Board in the present case is clearly erroneous.  Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.").  

Accordingly, resolving doubt in the Veteran's favor, service connection for dementia as a residual of an in-service combat related TBI is granted.  38 U.S.C. §§ 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.304(d).  

	

B.  Low Back Arthritis with Recurrent Lumbar Sprains

Upon review of the evidence of record, the Board grants the appeal for service connection for low back arthritis with recurrent lumbar sprains.

The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran has a current disability.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In the present case, there is probative evidence that prior to his death the Veteran met the threshold criterion for consideration of service connection of current low back arthritis with recurrent lumbar sprains.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  

Specifically, June 2009 VA X-rays diagnosed the Veteran with low back arthritis.  In addition, an October 2009 VA primary care note revealed treatment for and a diagnosis of a low back sprain.  VA treatment records dated from 2010 to 2012 continued to show recurring low back sprains and chronic low back pain as active problems.  Prior to his death, the Veteran treated his low back pain with various modalities - Tylenol, methocarbamol, ibuprofen, rest, and heat.  Thus, it is undisputed the Veteran had current low back disorders prior to his death. 

Initially, the Veteran's low back arthritis in the present case is an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies for this condition.  Walker, 708 F.3d at 1338-39.  See also Greyzck v. West, 12 Vet. App. 288, 291 (1999) (recognizing Stedman's Medical Dictionary 9, 1267 (26th ed. 1995) for the proposition that "degenerative joint disease" and "degenerative arthritis" are forms of arthritis subject to presumptive service connection).  Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the one-year presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service.  Walker, 708 F.3d 1335-1337.  However, in the present case, the evidence of record is negative for a diagnosis of low back arthritis during active duty from 1965 to 1987 and for several decades thereafter.  A March 1972 X-ray of the low back was unremarkable for any low back arthritis.  Therefore, the presumptive provisions based on a "chronic" disease in service under 38 C.F.R. § 3.303(b) are of no benefit here for the Veteran's low back arthritis.  Simply stated, no evidence establishes the existence of low back arthritis during active duty from 1965 to 1987.    

However, the Board will consider whether service connection can be awarded for the Veteran's low back arthritis under the provisions of 38 C.F.R. § 3.303(a) and (d).  Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Initially, the Veteran's currently diagnosed low back sprain is not one of the enumerated "chronic disease[s]" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply for this condition.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Instead, 38 C.F.R. § 3.303(a) and (d) apply in the present case for the low back sprain condition on appeal.  That is, the Federal Circuit has held that conditions that would be considered "chronic" in a medical sense, such as low back sprains, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described above in § 3.303(a).  Walker, 708 F.3d at 1338-39. 

As to the second requirement of in-service incurrence, STRs dated from 1965 to 1987 documented in-service complaints and treatment for low back pain.  Specifically, a January 1971 STR recorded low back muscle spasms.  The Veteran was prescribed Robaxin.  A March 10, 1972 STR revealed treatment for a lumbosacral strain.  The Veteran was prescribed Robaxin and bed rest for his low back pain.  A March 13, 1972 STR documented continued low back pain, although X-rays of the low back were negative.  It was recommended the Veteran perform light duty x 1 week.  In a March 1979 STR, the Veteran complained of back pain for the past four days.  He asserted sharp continuous back pain after moving a bookcase four days earlier.  One previous injury to the back during service was noted to have occurred in 1973.  On examination in March 1979, the Veteran exhibited a positive straight leg raise.  The assessment in March 1979 was a low back injury.  More importantly, at a January 1987 STR report of medical history at his retirement examination, the Veteran reported a history of recurrent back pain.  In fact, in January 1987 he asked the military examiner for a back brace if available, as his low back pain was occurring at that time.  Significantly, this was upon retirement from service in January 1987, such that the Veteran left active duty with complaints of recurring low back pain.  Therefore, STRs provide some evidence in support of in-service incurrence for a low back condition.  See 38 C.F.R. § 3.303(a).  As such, the second element of service connection is met. 

As to the second requirement of in-service incurrence, at the October 2019 Travel Board hearing, the Veteran's spouse competently and credibly testified that she observed the Veteran complain of recurring low back pain in the 1980s during his period active duty.  At the time she was married to the Veteran.  She was able to observe his low back symptoms directly.  There is no overt reason to dispute her credibility on this matter.  

As to the second requirement of in-service incurrence, the Veteran and his spouse's credible description of changing heavy tires, loading heavy items onto trucks, and physical training, as part of his MOS duties as a motor transport operator and a mechanic during his long period of service in the Army from 1965 to 1987 is consistent with the places, types, and circumstances of his service.  See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).  This finding is important because the Veteran asserts his physically intensive MOS duties in the motor pool for 20 years in the Army contributed to the development of his low back pain.   

As to the third requirement of a nexus to service, there is lay evidence of record establishing that the Veteran's low back problems began during service and continued intermittently thereafter after separation from service in 1987.  Post-service, the Veteran and his spouse are competent as lay persons to report continuing but intermittent symptoms of low back pain after his Army service.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R. § 3.159(a)(2).  Moreover, the Veteran and his spouse are credible in their report of his low back pain continuing intermittently after his Army service but increasing in frequency and severity over time.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible and probative).  The appellant spouse credibly testified at the October 2019 Travel Board hearing that the Veteran sought treatment after retirement from service in 1987 for his low back, to include electrotherapy and treatment with a private chiropractor.  However, none of these private treatment records were submitted to the VA.  In any event, the Board finds the appellant spouse to be credible in her description of continuing post-service treatment for the Veteran's low back pain in the years after retirement from the Army in 1987. 

Furthermore, the Board emphasizes that to establish a nexus, there is no requirement that a Veteran seek immediate post-service medical treatment for a low back condition after his separation from service in 1987.  The mere absence of medical records does not contradict a Veteran's statements about his symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  That is, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Id. at 37.  Continuing low back symptoms post-service, not treatment, must be the focus of the evidentiary analysis.  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  In considering a veteran's credibility, the Board may not use the absence of evidence as negative evidence against the claim, without establishing a proper foundation.  Fountain v. McDonald, 27 Vet. App. 258, 272 (2015).  The Court has held that the absence of evidence cannot be substantive negative evidence without a proper foundation to demonstrate that such silence tends to prove or disprove a relevant fact.  Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012).  Therefore, in the present case, there is no proper foundation for the Board to make an adverse credibility finding against the Veteran, based on the absence of clinical evidence for low back pain between retirement from service in 1987 and the first documented, post-service treatment in 2009.  The appellant spouse's lay assertions of post-service intermittent but continuing low back pain are competent and credible.  See Petitti v. McDonald, 27 Vet. App. 415, 427 (2015) (holding that where a regulation does not speak to the type of evidence required, it cannot be said to restrict the types of evidence which satisfy its requirements (such as lay evidence)).

The Board is also aware of the Court's decision in Ardison v. Brown, 6 Vet. App. 405, 408 (1994), a case which, similar to the present case, concerned a disorder that fluctuated in its degree of disability, that is, a disorder which had "active and inactive stages" or was subject to remission and recurrence.  The requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability can subsequently resolve.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Therefore, although the Veteran's low back pain has been described as a problem for the Veteran that can occur and reoccur periodically and intermittently over the years with symptomatic flare-ups, his low back condition can still be subject to service connection.  

Regarding clinical evidence of a nexus, the Board acknowledges an unfavorable September 2022 VA medical opinion for the low back by an Advanced Practice Registered Nurse (APRN).  This VA examiner opined that the Veteran's low back disability was "less likely than not" incurred in or caused by his military service.  The VA examiner's rationale was that although STRs confirm the Veteran was evaluated for low back pain on multiple occasions during service, these low back complaints were "acute" in nature, with no continuity of treatment for low back pain seen in post-service clinical records until 2009.  That is, there are no records showing that the Veteran's low back has been a continuing problem since retirement from service in 1987.  However, the Board finds this September 2022 VA medical opinion for the low back is flawed.  In rendering this opinion, the VA examiner failed to acknowledge or discuss the appellant spouse's lay hearing testimony where she discussed her first-hand observations of the Veteran's in-service low back symptoms and continuing post-service low back symptoms and treatment.  The VA examiner also failed to identify a post-service intercurrent cause for the Veteran's low back arthritis and low back sprains.  The VA examiner also described the Veteran's in-service low back problems as "acute" but did not explain why the Veteran continued to report recurring low back pain at his 1987 STR retirement examination.  Of significance, the Veteran even asked for a back brace at that time.  

On this issue, the Board emphasizes the Court's recent holding that a VA medical opinion is inadequate where the examiner fails to address the veteran's relevant lay statements.  Miller v Wilkie, 32 Vet. App. 249, 258 (2020).  A VA examiner must at least address a veteran's lay assertion that he has had symptoms of the disability for which he is claiming service connection for during and since service.  Id.  The Court added that a VA examiner needs to explain whether the claimant's lay assertions are generally "consistent or inconsistent" with medical knowledge.  Id. at 259-60.  The September 2022 VA medical opinion failed to accomplish this.  As such, the probative value of the unfavorable September 2022 VA medical opinion for the low back is limited.  

The Court has held that a medical examiner's conclusions were of "questionable probative value" when the examiner failed to consider certain relevant information.  Mariano v. Principi, 17, Vet. App. 305, 312 (2003).  The focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" and medical history in rendering a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  That is, an adequate medical opinion should discuss the specific facts and circumstances of a veteran's case.  Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018).  A diagnosis and its relationship to service is only as good and credible as the history on which it was predicated.  See Reonal v. Brown, 5 Vet. App. 458 (1993).  

Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for low back arthritis with recurrent lumbar sprains.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Hence, this claim is granted. 

	C.  Dermatitis and Actinic Keratosis of the Skin

Upon review, service connection for recurring dermatitis and actinic keratosis of the skin is granted. 

The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran has a current disability.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In the present case, prior to his death, there is probative evidence that the Veteran met the threshold criterion for consideration of service connection of current recurring dermatitis and actinic keratosis of the skin.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Specifically, VA treatment records dated from 2008 to 2011 diagnosed the Veteran with recurring dermatitis and actinic keratosis of the skin.  The Veteran reported frequent pruritis (itching) of the skin, for which he was prescribed Benadryl.  Rashes and lesions were treated on both forearms and the base of the neck.  These skin conditions were treated with Ammonium lactate (a moisturizer).  An August 2009 VA primary care note advised that the Veteran's recurrent skin problems were relieved by an antihistamine "for many yrs."  The appellant spouse also competently and credibly described this skin condition at the October 2019 hearing as dermatitis / eczema or a red rash on the Veteran's legs, arms, and chest.  

"Actinic keratosis" is defined as "a sharply outlined, red or skin-colored, flat or elevated rough or warty growth which may give rise to squamous cell carcinoma". See Dorland's Illustrated Medical Dictionary 879 (28th ed. 1994); see also Douglas v. Derwinski, 2 Vet. App. 103, 105 (1992).  

Initially, the Veteran's recurring dermatitis and actinic keratosis of the skin condition are not one of the enumerated "chronic disease[s]" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply here.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Instead, 38 C.F.R. § 3.303(a) and (d) apply in the present case for the recurring dermatitis and actinic keratosis of the skin issue on appeal.  

With regard to in-service incurrence, STRs dated from 1965 to 1987 recorded multiple instances of treatment for skin problems.  Specifically, the Veteran was treated for skin problems in July 1973, August 1973, February 1977, October 1977, December 1978, January 1987, and February 1987.  These skin conditions included recurring rashes, moles, warts, keratoma, skin ulceration, and skin lesions.  A February 1977 STR noted intermittent skin lesions for the previous 10 years since 1967.  At the October 2019 Travel Board hearing and in an April 2012 buddy statement, the Veteran's surviving spouse competently and credibly testified and stated that she observed the Veteran with rashes on his face, legs, arms, and chest, and large patches with holes on his body in the 1980s during his period active duty.  The Veteran was not provided any skin medication during service according to his spouse.  At the time she was married to the Veteran.  She was able to observe his skin symptoms directly.  There is no overt reason to dispute her credibility on this matter.  In any event, the above STRs and lay statements and hearing testimony provide clinical and lay evidence in support of possible in-service incurrence for a skin condition(s).  See 38 C.F.R. § 3.303(a).  

Post-service, as to the third requirement of a nexus, the Veteran and his spouse have been competent and credible in describing his skin symptoms as a recurring problem with intermittent flare-ups during and since his active-duty service in the Army from 1965 to 1987.  See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09.  In this regard, where a regulation does not speak to the type of evidence required, it cannot be said to restrict the types of evidence which satisfy its requirements (such as lay evidence)).  Petitti v. McDonald, 27 Vet. App. 415, 427 (2015).  As a lay person, the Board emphasizes that the Veteran, his spouse, and others who observed him are uniquely suited to describe the severity, frequency, and duration of his skin conditions.  See 38 C.F.R. § 3.159(a)(2); Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995).  In this regard, the Court has held a skin condition is the type of condition lending itself to lay observation. McCartt v. West, 12 Vet. App. 164, 167 (1999).  

That is, at his October 2019 hearing, the Veteran's spouse competently and credibly testified that his skin rashes became more severe and frequent post-service after retirement in 1987.  An August 2009 VA primary care note advised that the Veteran's recurrent skin problems were relieved by an antihistamine "for many yrs."  In an April 2012 buddy statement from the Veteran's sister, she said that the Veteran's body would break out in itching spells, he would itch across his whole body, and she would provide him skin medication and lotion to rub in.  As such, the Board finds the appellant spouse and other family are credible in their reported history of observing the Veteran's in-service and post-service skin rashes.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board, as fact finder, is responsible for assessing the competence, credibility, and probative value of the evidence).  

Moreover, some chronic conditions, in particular skin conditions, are subject to active and inactive stages.  See Ardison v. Brown, 6 Vet. App. 405, 408 (1994).  As such, the fact that not all VA and private clinical records revealed treatment for skin problems is not dispositive of the appeal.  The mere absence of medical records does not contradict a Veteran's statements about his symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  

Regarding clinical evidence of a nexus, the Board acknowledges an unfavorable September 2022 VA medical opinion for the skin by an APRN.  This VA examiner opined that the Veteran's skin disability was "less likely than not" incurred in or caused by his military service.  The VA examiner's rationale was that the Veteran's STRs failed to reveal treatment for skin problems.  However, the Board finds this September 2022 VA medical opinion for the skin is flawed.  The Court has held that a VA medical examiner's conclusions were of "questionable probative value" when the examiner failed to consider certain relevant information.  Mariano v. Principi, 17, Vet. App. 305, 312 (2003).  It is important for a clinician to be "informed of the relevant facts" and medical history in rendering a medical opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" and medical history in rendering a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).   A diagnosis and its relationship to service is only as good and credible as the history on which it was predicated.  See Reonal v. Brown, 5 Vet. App. 458 (1993).  In the present case, the September 2022 VA examiner failed to discuss the above STRs documenting treatment for a variety of skin problems similar to or the same as the Veteran's post-service skin conditions.  Therefore, the unfavorable September 2022 VA opinion for the skin was not fully adequate as it failed to discuss the specific facts and circumstances of the present Veteran's case.  Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018).  It is thus entitled to only limited probative value against the skin claim.  

In light of the above, the Veteran has a diagnosis of dermatitis and actinic keratosis (or similar skin conditions) both in-service and post-service, without an intercurrent explanation for same.  Although no VA examination explicitly determined there was a nexus to service for the Veteran's dermatitis and actinic keratosis of the skin, an absolutely accurate determination of etiology is not a condition precedent to granting service connection; nor is definite etiology or obvious etiology.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  The lay evidence and hearing testimony from the Veteran's spouse were particularly probative here in supporting service connection for the Veteran's skin conditions.   

Accordingly, resolving doubt in the Veteran's favor, service connection for dermatitis and actinic keratosis of the skin is granted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

D.  Allergic Conjunctivitis of Both Eyes

Allergic conjunctivitis of the eyes is "conjunctival inflammation, itching, tearing, and redness caused by allergens."  See Dorland's Illustrated Medical Dictionary, 412 (31st ed. 2007).

Upon review, service connection for allergic conjunctivitis of both eyes is granted.

The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran has a current disability.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In the present case, prior to his death, there is probative evidence that the Veteran met the threshold criterion for consideration of service connection of current allergic conjunctivitis of both eyes.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Specifically, a May 2010 VA nursing note assessed that the Veteran's eyes were "extremely red."  Per his caregiver to the VA nurse, his eyes were red from "allergies."  (Importantly, the Veteran had a previous clinical history in the record of "allergic conjunctivitis" with red and watery eyes).  With regard to lay evidence of a current diagnosis, at the October 2019 Travel Board hearing, the Veteran's spouse competently and credibly testified that the Veteran's eyes have been red for as long as she has known him.  The Veteran uses eye drops to keep his eyes moist when they become irritated.  Thus, prior to his death, the Veteran had a current allergic eye disability, likely allergic conjunctivitis based on his in-service history discussed further below. 

Initially, the Veteran's recurring allergic conjunctivitis of the eyes is not one of the enumerated "chronic disease[s]" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply here.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Instead, 38 C.F.R. § 3.303(a) and (d) apply in the present case for the recurring allergic conjunctivitis of the eyes issue on appeal.  

As to the second requirement of in-service incurrence, STRs dated from 1965 to 1987 documented chronic bilateral allergic conjunctivitis of the eyes.  Specifically, a March 1969 STR observed the Veteran had "bloodshot" eyes, despite the fact that he does not drink alcohol.  An August 1976 STR troop medical clinic note documented malaise of the eyes x four weeks with eye complaints.  Discharge was seen coming from both eyes.  The diagnosis was bilateral conjunctivitis of the eyes x three days.  The Veteran was given several medications for his eyes at that time.  In a November 1976 STR consultation sheet, the Veteran reported feeling a lump on both eyes for the past seven years, with the diagnosis unreadable.  Upon examination, the military clinician observed red eyes.  The Veteran added he has had a mild burning sensation in both eyes for many years.  The diagnosis rendered was "chronic" allergic conjunctivitis of the eyes.  (The Board emphasizes the military clinician's use of the word "chronic" to describe the Veteran's recurring allergic conjunctivitis of the eyes).  A February 1979 STR mentioned the Veteran had a cold with redness seen in his eyes.  In any event, the above STRs dated from 1965 to 1987 provide some clinical evidence in support of in-service incurrence for allergic conjunctivitis of both eyes.  See 38 C.F.R. § 3.303(a).  

Post-service, as to the third requirement of a nexus, the appellant spouse has been competent and credible in describing the Veteran's redness and irritation of his eyes as an intermittent, recurring problem both during service in the 1980s and after retirement from active duty in the Army in 1987.  See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09.  In this regard, where a regulation does not speak to the type of evidence required, it cannot be said to restrict the types of evidence which satisfy its requirements (such as lay evidence)).  Petitti v. McDonald, 27 Vet. App. 415, 427 (2015).  In the 1980s during active duty the appellant spouse was already married to the Veteran.  She was able to observe his eye symptoms directly.  There is no overt reason to dispute her credibility on this matter.  The Board finds the appellant spouse is credible in her reported history of observing the Veteran's in-service and post-service red and irritated eyes due to allergies.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board, as fact finder, is responsible for assessing the competence, credibility, and probative value of the evidence).  

The Board is also aware of the Court's decision in Ardison v. Brown, 6 Vet. App. 405, 408 (1994), a case which, similar to the present case, concerned a disorder that fluctuated in its degree of disability, that is, a disorder which had "active and inactive stages" or was subject to remission and recurrence.  The requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability can subsequently resolve.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Therefore, although the Veteran's allergic conjunctivitis has been described as a seasonal condition that can occur and reoccur "intermittently" over the years, also contingent on environmental exposure to various allergens, it can still be subject to service connection.  

Regarding clinical evidence of a nexus, the Board acknowledges an unfavorable September 2022 VA medical opinion for the eyes by a VA ophthalmologist.  This VA ophthalmologist opined that the Veteran's bilateral eye problems were "less likely than not" incurred in or caused by his military service.  The VA examiner's rationale was that the Veteran's STRs dated from 1965 to 1987 failed to reveal any eye complaints.  However, the Board finds this September 2022 VA medical opinion for the eyes is flawed.  The Court has held that a VA medical examiner's conclusions were of "questionable probative value" when the examiner failed to consider certain relevant information.  Mariano, 17, Vet. App. at 312.  It is important for a clinician to be "informed of the relevant facts" and medical history in rendering a medical opinion.  See again Nieves-Rodriguez, 22 Vet. App. at 304.  The focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" and medical history in rendering a medical opinion.  Id.  A diagnosis and its relationship to service is only as good and credible as the history on which it was predicated.  See again Reonal v. Brown, 5 Vet. App. 458 (1993).  In the present case, the September 2022 VA ophthalmologist failed to discuss the above STRs documenting treatment for allergic conjunctivitis of the eyes (as well as in-service treatment for other eye conditions that are being remanded by the Board for further development, as discussed below).  Therefore, the unfavorable September 2022 VA ophthalmologist opinion for the eyes was not fully adequate as it failed to discuss the specific facts and circumstances of the present Veteran's case.  Bailey, 30 Vet. App. at 60.  It is thus entitled to only limited probative value against the bilateral eye claim.  

In light of the above, the Veteran has the same symptoms of redness and irritation in the eyes due to allergic conjunctivitis both in-service and post-service, without an intercurrent explanation for same.  Although no VA examination explicitly determined there was a nexus to service for the Veteran's allergic conjunctivitis of the eyes, an absolutely accurate determination of etiology is not a condition precedent to granting service connection; nor is definite etiology or obvious etiology.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  And although another fact finder may have declined to make the same inference, that does not mean that the Board in the present case is clearly erroneous.  Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.").  

Accordingly, resolving doubt in the Veteran's favor, service connection for allergic conjunctivitis of the eyes is granted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Secondary Service Connection (SSC)

A disability can also be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  To be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.  Frost v. Shulkin, 29 Vet. App. 131, 138 (2017) (holding that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis).

The Federal Circuit Court recently clarified that a secondary condition is considered service connected if it is "proximately due to or the result of" a service-connected disability per 38 C.F.R. § 3.310(a).  However, "direct causation" between the service-connected disability and the claimed condition on appeal is not required (as this would be a higher standard).  Long v. McDonough, 38 F.4th 1063, 1065 (Fed. Cir. 2022).  

The Court has also held that secondary service connection is not available when a primary service-connected disability merely prevents another condition from improving, but the primary service-connected disability did not cause (or aggravate) that condition.  Spicer v. McDonough, 34 Vet. App. 310, 316 (2021).  In other words, the claimed condition being less severe were it not for the service-connected disability is not enough to award secondary service connection for that condition.  Id.  

In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

Initially, although the Veteran only claimed service connection for PTSD, and as touched upon in the introduction of the present Board decision, the Board has also considered whether service connection (or secondary service connection) is warranted for any other acquired psychiatric disorder in addition to his PTSD, such as depression or anxiety disorders.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).  

Initially, the Board also finds that the issue of secondary service connection for major depressive disorder with anxiety has been reasonably raised by the evidence of record, as a complication or residual of the Veteran's now service-connected dementia (from a TBI).  See Bailey v. Wilkie, 33 Vet. App. 188, 201-03 (2021) (38 C.F.R. § 3.155(d)(2) provides that once VA receives a complete claim, it must adjudicate as part of the claim entitlement to any ancillary benefits and additional benefits for "complications" of the claimed disability, including those identified by the Rating Schedule).  Thus, the Board will adjudicate the issue of secondary service connection for major depressive disorder with anxiety, even in the absence of explicit AOJ adjudication, as it was raised within the clinical evidence of record on multiple occasions during the present appeal for the now service-connected dementia (due to a TBI).  

Upon review, service connection for major depressive disorder with anxiety as secondary to now service-connected dementia (from a TBI) is granted.  

To this end, in considering all lay and medical evidence of record as instructed by the provisions of 38 C.F.R. § 3.155(d)(2), with regard to secondary service connection, there is probative medical evidence of record indicating that the Veteran, prior to his death, had major depressive disorder with anxiety proximately due to or the result of his now service-connected dementia (from a TBI).  38 C.F.R. § 3.310(a); Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018).  In this regard, a September 2009 VA mental health note and a November 2009 VA addendum note rendered a diagnosis of dementia with depressed mood and anxiety.  The Veteran had been increasingly depressed after experiencing the onset of significant symptoms of dementia. VA treatment records dated from 2011 to 2012 assigned a formal diagnosis of major depressive disorder.  Additionally, a May 2007 private Neuropsychology Services of Austin evaluation by a private neuropsychologist disclosed that the Veteran had been receiving psychiatric therapy for depression for several years simultaneous to the onset of memory problems from his dementia.  Hence, all of the above serves as circumstantial evidence that prior to his death the Veteran developed major depressive disorder with anxiety as a component of or symptom of his now service-connected dementia (from a TBI).

To the extent that the Board made inferences and considered circumstantial evidence in its analysis of the evidence here, this type of reasoning is well within the discretion of a fact finder.  Although another fact finder may have declined to make the same inference, that does not mean that the Board in the present case is clearly erroneous.  Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.").  

Accordingly, secondary service connection for major depressive disorder with anxiety is granted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310.  

(In implementing this award, the AOJ should award the Veteran secondary service connection for major depressive disorder with anxiety, on the basis that it is the direct result of his now service-connected dementia (as opposed to aggravation)).

REASONS FOR REMAND

1. Service connection for a LEFT ankle disorder is REMANDED.

2. Service connection for a LEFT knee disorder is REMANDED.

3. Service connection for hemorrhoids is REMANDED.

4. Service connection for PTSD is REMANDED.

5. Service connection for cataracts and diabetic retinopathy of both eyes is REMANDED.

First, for the above service connection issues, during his lifetime, the Veteran and the appellant reported that he was treated by various private medical providers for his various orthopedic and mental health disabilities in the 2000s up until his death in March 2020.  Moreover, the Veteran's March 2020 death certificate (presumably issued by a state or local government entity) is missing from the claims file.  In addition, according to the appellant, beginning in April 2012 the Veteran was treated in a specialized nursing home (The Cottages at Chandler Creek) for dementia / Alzheimer's disease.  See appellant's reported history in June 2012 and July 2012 VA psychologist opinions; and October 2019 Travel Board hearing testimony.  Any private mental health treatment records, or private terminal hospital or nursing home or hospice records, or death certificates, dated from 2000 to March 2020 (date of Veteran's death), if available, may provide more detailed information on any left ankle, left knee, hemorrhoids, PTSD, or eye disabilities remaining on appeal.  However, these private treatment records, private nursing home / hospice records, and the death certificate are not currently present in the claims file.  

In this respect, VA is required to make reasonable efforts to obtain all "relevant" records, including private and state or local government records like these, which the Veteran, or in this instance, his heirs, adequately identifies and authorizes VA to obtain.  38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1).  The Federal Circuit Court has held that the duty to assist for VA to obtain private records applies to relevant or potentially relevant records, such as the private records discussed above.  See Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010) (emphasis added).  And VA's duty to assist may arise when a claimant simply refers to pertinent private medical examinations or private treatment but has not yet provided the necessary authorization to secure them.  Ivey v. Derwinski, 2 Vet. App. 320 (1992).  That is, for private treatment records, "[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records."  38 C.F.R. § 3.159(e)(2). 

"Reasonable efforts" to secure private treatment records and state or local government records will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request, unless it is clear after the first request that a second request would be futile.  38 C.F.R. § 3.159(c)(1).  Therefore, the AOJ should contact the appellant and ask her to submit herself the Veteran's private mental health treatment records, private terminal hospital or nursing home or hospice records, or the death certificate, which have been referenced at various times during the appeal, if she has them in her personal possession, or to complete and return the necessary authorizations (VA Form 21-4142) and (VA Form 21-4142a) for VA to obtain them for her.  It is the appellant's choice whether or not to provide authorization for VA to secure the above private medical records and death certificate, if she believes they would help her establish the Veteran's service connection claims remaining on appeal.  

Second, for the service connection issue for cataracts and diabetic retinopathy of both eyes, the AOJ must obtain a VA addendum opinion from the same VA ophthalmologist who proffered the earlier September 2022 VA medical opinion for the eyes.  Although probative, the September 2022 VA medical opinion was not fully adequate for the cataracts and diabetic retinopathy of both eyes issue on appeal.  On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Specifically, in the September 2022 VA medical opinion, the VA ophthalmologist opined that the Veteran's post-service right and left eye "focal exudate" was "less likely than not" (less than 50 percent probability) incurred in or caused by his period of military service from 1965 to 1987.  However, the VA ophthalmologist incorrectly stated that the Veteran's STR's were negative for any eye complaints.  On this point, the VA ophthalmologist failed to consider or discuss the significance of relevant STRs dated from 1965 to 1987 that documented treatment for a variety of eye problems  black spots on both eyes, possible "retinal detachment" for both eyes, left eye scotoma, and bilateral eye central serous retinopathy (CSR). On this issue, the Court has held that an adequate medical opinion with regard to etiology should consist of a discussion of all relevant evidence.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).  The Court has also held that a VA medical examiner's conclusions were of "questionable probative value" when the VA examiner failed to consider certain relevant information.  Mariano v. Principi, 17, Vet. App. 305, 312 (2003).  The September 2022 VA ophthalmologist failed to consider, discuss, or analyze the STR evidence listed above, in the context of determining whether the Veteran's post-service eye problems prior to his death (cataracts and diabetic retinopathy) were related to the in-service eye symptomatology and diagnoses documented in his STRs, as well as to his combat related TBI in the late 1960s.  These findings trigger VA's duty to assist for an appropriate VA clinician to provide clarification for the earlier September 2022 VA medical opinion. 

Therefore, although it will result in additional delay in adjudicating the appeal, a remand is required to obtain a VA addendum opinion on the etiology of the Veteran's cataracts and diabetic retinopathy of both eyes.  If the same September 2022 VA ophthalmologist is not available, another qualified VA clinician will provide the addendum opinion.  An actual VA medical examination for the eyes cannot be performed as the Veteran is deceased.

Therefore, the above issues are REMANDED for the following action:

1. Ask the appellant to complete and return the necessary authorizations (VA Form 21-4142) and (VA Form 21-4142a) to secure multiple clinical records: private mental health treatment records; private terminal hospital or nursing home or hospice records; and a death certificate. 

If the appellant provides the required authorization with sufficient information to identify and locate these private and state or local government records, the AOJ should make two requests for the authorized records from these private and state or local government facilities, unless it is clear after the first request that a second request would be futile.  

Finally, the appellant is also asked to provide any of the following herself if she has them in her possession: private mental health treatment records; private terminal hospital or nursing home or hospice records; and a death certificate.  The missing private medical and state or local government records were mentioned during the October 2019 hearing testimony of the appellant, in various private and VA treatment records, and in June 2012 and July 2012 VA psychologist opinions.  These missing records consist of the following:

	Post-service private mental health treatment records for treatment of dementia and psychiatric problems from Dr. Shiva K. Lam, MD., in Austin, Texas, in the early 2000s (with exact dates uncertain).

	Post-service private mental health treatment records for treatment of dementia and psychiatric problems from Dr. Jaron L. Winston, MD., and Thomas Vanhorn, P.A., both located at or near Austin, Texas, beginning in 2010 until dates uncertain.  (See references to these private providers in June 2012 and July 2012 VA psychologist opinions).

	Any post-service private treatment for the Veteran's alleged LEFT ankle, LEFT knee, or hemorrhoids conditions with dates uncertain (at present the claims file contains no clinical records that document a current diagnosis or any clinical complaints for these alleged disabilities).  

	Post-service private terminal nursing home or hospital or hospice records, to include treatment from "The Cottages at Chandler Creek," a specialized nursing home for dementia / Alzheimer's disease, dated from April 2012 until the Veteran's death in March 2020. 

	Post-service death certificate from the appropriate state or local government entity dated on or after March 2020. 

2. After completion of step 1, secure a VA addendum opinion, pertaining to the etiology of the Veteran's cataracts and diabetic retinopathy of both eyes, from the VA ophthalmologist who proffered the earlier September 2022 VA medical opinion for the eyes.  If this VA ophthalmologist is no longer available, another qualified VA clinician must provide the addendum opinion.  The VA examiner must review the claims file.  The VA examiner must provide a rationale to support the opinion.  (An actual VA medical examination for the eyes cannot be performed as the Veteran is deceased).

The VA examiner is asked to provide a response to the following:

(a.) Are the Veteran's cataracts and diabetic retinopathy of both eyes, diagnosed prior to his death, causally or etiologically related to the multiple in-service eye symptoms and diagnoses documented in his STRs dated from 1965 to 1987 (black spots on both eyes, possible "retinal detachment" for both eyes, left eye scotoma, and bilateral eye central serous retinopathy (CSR))?

(b.) Are the Veteran's cataracts and diabetic retinopathy of both eyes, diagnosed prior to his death, causally or etiologically related to a combat-related head injury (TBI) sustained during the Veteran's military service in the late 1960s in Vietnam, or to his occasional welding duties as a mechanic in the motor pool? 

For purposes of answering this question, the VA examiner is advised that the Board is accepting (conceding as fact) the following event:  The Veteran sustained a head injury (TBI) in a combat related rocket attack or a mine in the late 1960s during active service in Vietnam.  Specifically, he was riding in a gun truck in order to guard a fuel convoy, consistent with his military occupational specialty (MOS) as a motor vehicle operator and mechanic.  An enemy rocket attack or mine hit his truck he was riding in, which threw him out of the vehicle.  He landed on his head and suffered facial fractures.  He experienced a loss of consciousness lasting several weeks.  The in-service rocket attack also left metallic fragments in his skull, which are documented in a post-service CT scan of the head.  Immediately after the event, he was hospitalized at a military hospital in Vietnam for three weeks, although the STR military inpatient hospitalization report is not of record.  

In rendering the above opinions, the VA examiner is advised of the following relevant evidence:

Service treatment records (STRs) for the eyes dated in May 1980, June 1980, July 1980, October 1980, November 1980, December 1981, and October 1986 documented treatment for a variety of eye problems: black spots on both eyes, possible "retinal detachment" for both eyes, left eye scotoma, and bilateral eye central serous retinopathy (CSR).  The Veteran was also prescribed glasses for presbyopia / myopia per STRs dated in August 1973, April 1985, and at the January 1987 retirement examination. 

Post-service, VA treatment records for the eyes dated in 2009 and 2010 diagnosed the Veteran with cataracts and diabetic retinopathy in both eyes (manifested by retinal hard exudates (L>R)).  

As to lay evidence, the Veteran alleged continuous eye symptoms after his combat related TBI during an enemy rocket attack in the late 1960s in Vietnam.  His spouse also testified at the October 2019 hearing that his eyes always had redness (note that the Board has already service-connected the Veteran for allergic conjunctivitis of both eyes).  His spouse added her belief that the Veteran's welding duties in the motor pool in Vietnam displaced foreign material (e.g., splinters) into his eyes that impacted his vision long-term.  

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P.S. Rubin, 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.