Resolving all reasonable doubt in the Veteran’s favor, service connection for an anxiety disorder, not otherwise specified (NOS), is granted.
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Citation Nr: A21010147 Decision Date: 06/03/21 Archive Date: 06/03/21 DOCKET NO. 191118-47607 DATE: June 3, 2021 ORDER Resolving all reasonable doubt in the Veteran's favor, service connection for an anxiety disorder, not otherwise specified (NOS), is granted. Service connection for a left foot condition is denied. Service connection for a right foot condition is denied. REMANDED Service connection for Parkinson's disease is remanded. Service connection for a hip condition is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his anxiety disorder, NOS is at least as likely as not related to an in-service injury, event, or disease, to include his combat service. 2. The preponderance of the evidence of record is against finding that the Veteran has had a left or right foot condition or any related disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for anxiety disorder NOS have been met. 38 U.S.C. §§ 1110, 1131, 1154 (b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for left foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for right foot condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from April 1945 to May 1945 and from June 1951 to March 1953. The Veteran also served in the Coast Guard Merchant Marines from May 1945 to September 1946. The Veteran received the Combat Infantry Badge and the Korean Service Medal with the Bronze Service Star. He died in February 2017. The appellant is his surviving spouse. A rating decision was issued under the legacy system in April 2018 and the appellant submitted a timely notice of disagreement. In November 2019, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The appellant opted the appeal into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a November 2019 VA Form 10182, Decision Review Request: Board Appeal, identifying the November 2019 SOC. Therefore, the November 2019 SOC is the decision on appeal. In her November 2019 VA Form 10182, the appellant elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the November 2019 SOC, as well as any evidence submitted by the appellant or her representative at the hearing or within 90 days following the January 2021 hearing. 38 C.F.R. § 20.302(a). Lastly, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection 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) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, a finding that a veteran engaged in combat with the enemy under 38 U.S.C. § 1154 (b) and 38 C.F.R. § 3.304 (d) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Id. Evidence to support a claim that a veteran engaged in combat may include a veteran's own statements and a variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Where a veteran engaged in combat, "satisfactory lay or other evidence" may be used to establish that the veteran was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154 (b)). 1. Service connection for anxiety disorder NOS is granted. The appellant contends the Veteran had a psychiatric disorder that was caused by or related to his military service in Korea. For the reasons discussed below, service connection is warranted. A June 2016 private treatment note from the Mayo Clinic indicates that the Veteran was diagnosed with anxiety disorder, NOS. As such, a current disability (the first service connection element) was demonstrated prior to the Veteran's death. The Veteran's service treatment records are silent as to any symptoms, diagnosis, or treatment for mental health problems while on active duty. However, the military personnel record along with the supporting lay evidence shows an in-service event occurred. The second service connection element, an in-service event, is therefore demonstrated. The Veteran's personnel records, including his DD Form 214, indicate that he was involved in combat operations while stationed in Korea. Indeed, the Veteran received the Combat Infantry Badge for his second period of active duty from 1951 to 1953. Further, the Veteran previously reported serving in combat along the demilitarized zone (DMZ) at the Kogedo Prisoner of War Camp from October 1951 to November 1952. See January 2017 correspondence. In various written correspondence, long before the appellant filed the February 2017 claim, the Veteran made lay statements reporting combat service. In a March 2006 letter, the Veteran wrote about the battle at "Old Baldy" where he lost several friends on the line and massed artillery, mortars and Chinese riflemen overran the K company of the 38th infantry regiment. He also submitted a copy of an undated local newspaper article of an interview he submitted to, for the 60th anniversary of the Korean War armistice. The Veteran reported that he was involved in a battle to retake a hill and that he lost close friends in that battle. Thus, the remaining question is whether the anxiety disorder is related to service. For the following reasons, the Board finds that the evidence is at least in equipoise on the question of causal nexus, which is the third element of service connection. There is credible and competent lay evidence regarding the effect of the Veteran's combat experiences on his mental health and the onset of his mental health symptoms. At the January 2021 Board hearing, the appellant testified that the Veteran had symptoms of nightmares, anxiety, and panic attacks. The appellant further testified that the Veteran exhibited such symptoms during the entire course of their relationship, which began three years after he had been in Korea. The Veteran's daughter also testified that the Veteran was emotionally affected by the combat-related deaths of his friend, W. M., and 'Lieutenant Robinson,' and the battle he fought in "Old Baldy." In particular, the Veteran's daughters indicated that he would become emotional, and it was difficult for him to discuss the war. This is consistent with other lay statements of record. See e.g. September 2016 correspondence, September 2016 VA Form 21-4138; and March 2021 statement of the Veteran's grandson. In short, the Veteran's family members have competently and credibly testified that the Veteran experienced recurrent mental health symptoms within a relatively short time after service discharge. Based on contemporaneous conversations with the Veteran, those symptoms appeared to be related to his combat service experiences. A lay individual may be competent to provide evidence of observable events, to include symptoms of anxiety. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Unfortunately, the Veteran died prior to a VA mental health examination and there is no medical opinion linking his anxiety disorder to the combat-related events of his military service. However, based on the evidence discussed, the Board finds that the competent and credible lay evidence, including that pertinent to service, establishes that the anxiety disorder was incurred in service. 38 C.F.R. § 3.303 (d). There are no medical records affirmatively linking the anxiety disorder to another post-service event. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for an anxiety disorder, NOS is warranted. 38 U.S.C. §§ 1154 (b), 5107(b); 38 C.F.R. § 3.102. Although the lay statements have indicated that the Veteran had a diagnosis of PTSD, the Board notes that there are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). There is no competent medical evidence in this case showing the Veteran was diagnosed with PTSD by a qualified medical professional. Further, compensation for separate psychiatric disorders would not be warranted for symptoms or impairment from anxiety disorder and a PTSD diagnosis because 38 C.F.R. § 4.14 provides that rating similar manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 2. Service connection for left foot condition is denied. 3. Service connection for right foot condition is denied. The appellant seeks to establish service connection for a bilateral foot condition and asserts the Veteran developed such conditions due to cold weather injuries in Korea. See September 2016 VA Form 21-4138. At the January 2021 Board hearing, the Veteran's family asserted that his feet were not tended to, and he had poor uniforms and equipment. The initial question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. Based on the following, the Board concludes that the Veteran did not have a diagnosed bilateral foot condition at any time recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The VA and private treatment records are silent for diagnosis or treatment for a foot condition. Of note, the Veteran was evaluated for weakness in the bilateral lower extremities and slow and shuffling gait in May 2012. At the time, the VA clinician noted the following: bilateral lower extremity weakness, rule out secondary to Parkinson disease, and bilateral hip degenerative joint disease contributing to mobility issues. Subsequent private treatment records are silent for complaints and diagnosis related to the feet, despite multiple treatments for other issues including neurologic issues contributing to abnormal gait and weakness. See e.g. January 2014 private treatment records. This is consistent with other VA treatment record. For example a September 2014 VA treatment records noted such issues as left sacroiliac joint, sacroiliac joint pain, left hip pain, arthralgia of left hip, physical deconditioning and decreased functional mobility; no foot condition or complaints were noted. See also August 2016 VA treatment records. At an October 2016 private assessment, the Veteran was noted to have pain in the hip, but not the foot. Related to this hip pain, the Veteran was noted to have functional impairment in movement, walking, sitting, and standing. The conclusions and findings reached in VA and private treatment records are probative on the question of whether there is a current disability. The clinicians have the appropriate training, expertise, and knowledge to evaluate the claimed disability. Those findings were supported by a physical examination in most cases and included consideration of the Veteran's reported symptoms. There are no competent opinions to the contrary. In reaching the conclusion that a bilateral foot disability was not present during the claim, the Board has considered the lay statements relating to the Veteran's diminished mobility late in his life and the functional impact of any claimed foot disability. Of note, in a March 2021 statement, the Veteran's son reported that the Veteran became slower over time and he spoke of endless pain in his hip, back and feet. The Veteran's son also indicated his hip and foot problems were debilitating. Separately, the Veteran's daughter reported that the Veteran had pain in his hips and feet, with gradually less and less time working outside and a stiffening gait. While there are lay statements reporting a foot condition, the witnesses are not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing such as X-rays. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board has also considered the holding that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" where it "reaches the level of a functional impairment of earning capacity." See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), Id. at 1367-69. However, there is no competent and credible evidence (including from the lay evidence and testimony by the Veteran's family) that rises to the level of functional impairment of earning capacity. Further, the Veteran had multiple other conditions affecting his musculoskeletal system, mobility, and lower extremities. As noted, the Veteran and his family member are not shown to have the requisite medical training to discern whether the Veteran's diminished mobility and gait are due to the claimed foot conditions or the other actually diagnosed conditions. The individuals who are competent to opine on the matter are the medical professionals who treated the Veteran and examined him. The treatment records indicate that they did not assess a chronic left or right foot disorder, or note a foot disability in discussing the functional impairments mentioned by the Veteran's family members. Rather, they predominantly attributed the functional impairment to his hip or neurological condition. The Board affords the determinations made in the treatment records more probative weight. In sum, the preponderance of the competent evidence weighs against service connection because a current bilateral foot disability was not established at any time during the pendency of the claim or recent to the filing of the claim. Accordingly, the benefit of the doubt doctrine does not apply. Service connection for a bilateral foot disability is not warranted. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND In the April 2018 rating decision, the AOJ found that new and material evidence had been received to reopen the claim of entitlement to service connection for a hip condition. The rating decision also readjudicated the previously denied claim of entitlement to service connection for Parkinson's disease. 1. Service connection for Parkinson's disease is remanded. The appellant seeks service connection for Parkinson's disease, or progressive supranuclear palsy based on the Veteran's reported exposure to pesticides and insecticides, including DDT and Lindane, while serving in Korea. See January 2021 Board Hearing; March 2021 electronic correspondence from appellant. In a January 2017 correspondence, the Veteran reported serving along the DMZ. While he indicated that he was unaware if he was exposed to herbicide agents, the Veteran asserted that he was regularly sprayed with some form of insecticide and airplanes dusted the area with insecticide. He believed the substance was DDT. The appeal must be remanded for further development to correct a duty to assist error that occurred prior to the November 2019 SOC on appeal. The record reflects that the Veteran served in Korea. However, the AOJ did not determine whether the Veteran was exposed to regularly exposed to pesticides and insecticides, such as DDT and Lindane, as claimed. The AOIJ also did not seek to obtain a medical opinion as to the likelihood of a causal relationship between any reported pesticide exposure to and the claimed Parkinson's disease, or progressive supranuclear palsy. On remand, such development should be conducted. The Board observes that in March 2021, favorable medical opinions were submitted from Dr. Bash and Dr.Bernad; however, those opinions are based on the unverified assertions that the Veteran was exposed to pesticides such as DDT in service. Hence, this evidence is not sufficient to warrant service connection at this time. 2. Service connection for a hip condition is remanded. The appellant asserts that the Veteran's hip condition was related to cold weather injuries in Korea. See September 2016 VA Form 21-4138; January 2021 Board hearing. Treatment records note that the Veteran had multiple diagnoses related to his hips. See treatment records from March 2010 (noting a diagnosis of bilateral hip degenerative joint disease) and September 2014 (noting inflammation of left sacroiliac joint, sacroiliac joint pain, left hip pain, and arthralgia of left hip). There is no medical opinion of record addressing the etiology of the Veteran's hip condition. This failure constitutes a pre-decisional duty to assist error. McClendon v. Nicholson, 20 Vet. App. 79 (2006). This duty to assist error should be remedied by obtaining an opinion regarding whether his hip condition is related to his service. The matters are REMANDED for the following action: 1. Undertake all appropriate action to attempt to verify the likelihood of the Veteran's exposure to an insecticide or pesticide, including DDT or Lindane, during his service in Korea. Document all steps taken. 2. Obtain an opinion from an appropriate clinician regarding the etiology of the Veteran's hip condition. The examiner must review the claims file and this Remand. The examiner should opine on whether the Veteran's hip condition is at least as likely as not related to service, including the Veteran's reported exposure to extreme cold, sleeping on frozen ground, and improper uniform or equipment while serving in Korea. The examiner should provide a complete rationale for any opinions provided. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.