THORACOLUMBAR OR LUMBAR SPINE LIMITATION OF MOTION

KATHERINE KIEMLE BUCKLEY · 2024 · Case ID: 24024969

MIXED

Summary

The Veteran, an Army Veteran who served in Korea from February 1951 to February 1955, died in April 2015. His surviving spouse appeals the denial of service connection for a low back disability, a stomach disability, and a respiratory disability, as well as the cause of death and special monthly compensation (SMC). The Board found that new and material evidence warranted reopening the previously denied claims for low back, stomach, and respiratory disabilities. For the stomach disability, the Board found the evidence in equipoise and applied the benefit of the doubt to grant service connection for an ulcer disability, noting the Veteran's in-service treatment for dysentery and gastrointestinal symptoms, subsequent diagnoses of ulcerative colitis and duodenal ulcers, and the appellant's credible testimony of lifelong symptoms. The Board found the prior VA nexus opinion for the ulcer claim flawed due to factual inaccuracies and failure to address lay evidence. The Board found the private psychologist's opinion of limited probative value due to lack of expertise. The claims for low back and respiratory disabilities, along with the cause of death and SMC, were remanded for further development, including obtaining SSA records, verifying combat stressors for a potential psychiatric disability, and obtaining new VA medical opinions on nexus for the low back and psychiatric claims.

Rationale

New and material evidence received warrants reopening.; STRs show in-service treatment for back pain and diagnosis of lower back strain.; Post-service treatment and appellant testimony indicate continuity of symptoms.; Remanded for VA medical opinion on nexus.

Service Branch

ARMY

Special Benefit

SMC - AID & ATTENDANCE; SMC - HOUSEBOUND; DIC / CAUSE OF DEATH

Docket No.

19-24 732

Full Decision Text

Citation Nr: 24024969
Decision Date: 07/02/24 Archive Date: 07/02/24

DOCKET NO. 19-24 732
DATE: July 2, 2024

ORDER

New and material evidence having been received, the previously denied claim of service connection for a low back disability is reopened.

New and material evidence having been received, the previously denied claim of service connection for a stomach disability is reopened.

New and material evidence having been received, the previously denied claim of service connection for a respiratory disability is reopened.

Entitlement to service connection for an ulcer disability is granted.

REMANDED

Entitlement to service connection for a low back disability is remanded.

Entitlement to service connection for an acquired psychiatric disability is remanded.

Entitlement to service connection for a respiratory disability to include lung cancer is remanded.

Entitlement to service connection for the cause of the Veteran's death is remanded.

Entitlement to special monthly compensation based on the need for aid and attendance or housebound status is remanded.

FINDINGS OF FACT

1. A June 1955 rating decision, in pertinent part, denied entitlement to service connection for stomach pathology. The appellant was duly notified of the RO's decision and his appellate rights in a June 24, 1955, letter, but did not appeal, nor was new and material evidence received within the applicable period.

2. A May 1958 rating decision, in pertinent part, denied entitlement to service connection for duodenal ulcer, ulcerative colitis, and residuals of back injury. The appellant was duly notified of the RO's decision and his appellate rights in a May 19, 1958, letter, but did not appeal, nor was new and material evidence received within the applicable period.

3. An August 1977 rating decision, in pertinent part, denied entitlement to service connection for a stomach disability. The appellant was duly notified of the RO's decision and his appellate rights in an August 18, 1977, letter. Following additional submissions and statements, the claim was again denied in a January 20, 1978, letter. A timely NOD was received in February 1978. A SOC was issued in April 1978, but the appellant did not appeal, nor was new and material evidence received within the applicable period.

4. An October 1988 rating decision, in pertinent part, denied entitlement to service connection for a back disability. The appellant was duly notified of the RO's decision and his appellate rights in a December 1988 letter, but did not appeal, nor was new and material evidence received within the applicable period.

5. A February 1993 rating decision, in pertinent part, denied entitlement to service connection for a respiratory condition. The appellant was duly notified of the RO's decision and his appellate rights in a February 16, 1993, letter. Following receipt of additional evidence and argument, another rating decision was issued in January 1994, denying the claim. The appellant was duly notified of the RO's decision and his appellate rights in a January 25, 1994, letter. Following receipt of a timely NOD, an SOC was issued in February 1995, but the appellant did not perfect a timely appeal.

6. Evidence received since the final August 1977 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability and, presuming its credibility as required under applicable law and regulation, raises a reasonable possibility of substantiating the service connection claim.

7. Evidence received since the final October 1988 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a stomach disability and, presuming its credibility as required under applicable law and regulation, raises a reasonable possibility of substantiating the service connection claim.

8. Evidence received since the final January 1994 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a respiratory disability and, presuming its credibility as required under applicable law and regulation, raises a reasonable possibility of substantiating the service connection claim.

9. The evidence is in relative equipoise as to whether the Veteran's ulcer disability was incurred in or is otherwise causally related to his active service.

CONCLUSIONS OF LAW

1. The June 1955 rating decision which denied entitlement to service connection for stomach pathology is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

2. The May 1958 rating decision which denied entitlement to service connection for duodenal ulcer, ulcerative colitis, and residuals of back injury is final. 38 U.S.C
applicable law and regulation, raises a reasonable possibility of substantiating the service connection claim.

9. The evidence is in relative equipoise as to whether the Veteran's ulcer disability was incurred in or is otherwise causally related to his active service.

CONCLUSIONS OF LAW

1. The June 1955 rating decision which denied entitlement to service connection for stomach pathology is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

2. The May 1958 rating decision which denied entitlement to service connection for duodenal ulcer, ulcerative colitis, and residuals of back injury is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

3. The August 1977 rating decision which denied entitlement to service connection for a stomach disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

4. The October 1988 rating decision which denied entitlement to service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

5. The January 1994 rating decision which denied entitlement to service connection for a respiratory condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

6. New and material evidence has been received to warrant reopening of the claim of service connection for a low back disability. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156.

7. New and material evidence has been received to warrant reopening of the claim of service connection for a stomach disability. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156.

8. New and material evidence has been received to warrant reopening of the claim of service connection for a respiratory disability. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156.

9. The criteria for entitlement to service connection for an ulcer disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from February 1951 to February 1955, including service in Korea. He died in April 2015. The appellant is his surviving spouse and has been substituted as the claimant. See August 2019 decision letter.

This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant filed a timely Notice of Disagreement (NOD), received in March 2016. A Statement of the Case (SOC) was issued in July 2019. A timely substantive appeal was received in August 2019.

The appellant was afforded a virtual hearing before the undersigned in April 2022. A transcript is of record.

The Board has recharacterized the issue of entitlement to service connection for PTSD as entitlement to service connection for an acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record).

New and Material Evidence

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

For claims such as this one, filed on or after August 29, 2001, 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
the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

For claims such as this one, filed on or after August 29, 2001, 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.

To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material).

1. The application to reopen the previously denied claim of service connection for a low back disability.

2. The application to reopen the previously denied claim of service connection for a stomach disability.

3. The application to reopen the previously denied claim of service connection for a respiratory disability.

A June 1955 rating decision, in pertinent part, denied entitlement to service connection for stomach pathology. The Veteran was duly notified of the RO's decision and his appellate rights in a June 24, 1955, letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis.

A May 1958 rating decision, in pertinent part, denied entitlement to service connection for duodenal ulcer, ulcerative colitis, and residuals of back injury. The Veteran was duly notified of the RO's decision and his appellate rights in a May 19, 1958, letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis.

An August 1977 rating decision, in pertinent part, denied entitlement to service connection for a stomach disability. The Veteran was duly notified of the RO's decision and his appellate rights in an August 18, 1977, letter. Following additional submissions and statements, the claim was again denied in a January 20, 1978, letter. A timely NOD was received in February 1978. A SOC was issued in April 1978, but the Veteran did not perfect a timely appeal. As such, the January 1978 decision is final and not subject to revision on the same factual basis.

An October 1988 rating decision, in pertinent part, denied entitlement to service connection for a back disability. The Veteran was duly notified of the RO's decision and his appellate rights in a December 1988 letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis.

A February 1993 rating decision, in pertinent part, denied entitlement to service connection for a respiratory condition
8. A SOC was issued in April 1978, but the Veteran did not perfect a timely appeal. As such, the January 1978 decision is final and not subject to revision on the same factual basis.

A February 1993 rating decision, in pertinent part, denied entitlement to service connection for a respiratory condition. The Veteran was duly notified of the RO's decision and his appellate rights in a February 16, 1993, letter. Following receipt of additional evidence and argument, another rating decision was issued in January 1994, denying the claim. The Veteran was duly notified of the RO's decision and his appellate rights in a January 25, 1994, letter. Following receipt of a timely NOD, an SOC was issued in February 1995, but the Veteran did not perfect a timely appeal. As such, the January 1994 decision is final and not subject to revision on the same factual basis.

Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final decision discussed above.

Evidence received since the January 1978 rating decision denying service connection for a stomach disability and the October 1988 rating decision denying service connection for a back disability includes the appellant's April 2022 hearing testimony that the Veteran told her that he experienced a continuity of stomach and back symptoms since service, which included multiple hospitalizations. She also detailed her observations of the Veteran and his symptoms.

Evidence received since the January 1994 rating decision denying service connection for a respiratory disability includes the June 2022 opinion of B.M.B., Ph.D., that the Veteran self-treated his psychiatric disability with, inter alia, smoking tobacco products.

This evidence is new, as the evidence of record at the time of the last final decision did not include any indication of a nexus between back, stomach, or respiratory disabilities and the Veteran's active service, or a service-connected disability. Further, this additional evidence, when presumed credible, relates to unestablished facts necessary to substantiate the claims and triggers VA's duty to provide a medical examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination should be provided).

Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant's previously denied claims of service connection for low back, stomach, and respiratory disabilities are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

For the reasons that follow, the record is sufficient to warrant granting the benefits sought with respect to the claims of service connection discussed infra. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997).

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to
a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

1. Entitlement to service connection for an ulcer disability.

For the reasons that follow, the Board finds that service connection is warranted for an ulcer disability.

The Veteran's service treatment records (STRs) reveal that he incurred, and was treated for, dysentery in 1953 while stationed in Korea. In June 1954, the Veteran complained of pain in his stomach, as well as nausea upon eating. In August 1954, the Veteran was treated for complaints of diarrhea, which he indicated had persisted for the past several months. He described blood in the stools on several occasions. See the STR dated August 1954. The treatment provider indicated that the Veteran had a 20 pound weight loss in the past four months. In September 1954, the Veteran was brought to a military police station at which time he complained of feeling sick to his stomach; he was noted to be intoxicated at the time. The Veteran's February 1955 separation examination was within normal limits, although 1954 treatment for diarrhea and a loss of 10-15 pounds in the last year were noted.

The Veteran was afforded a VA examination in June 1955 at which time he reported that he had not received any medical treatment or been hospitalized since his discharge form service. He described experiencing stomach trouble. He stated that he "[c]an't eat breakfast" and experiences loose bowels several times a week. The examiner reported that the Veteran had "[n]o specific gastro-intestinal pathology."

In April 1957, the Veteran was admitted to Brooke Army Medical Center for observation for dysentery. A diagnosis of ulcerative colitis was indicated at the time. In May 1957, an exploratory cystoscopy was performed.

In a Certificate of Attending Physician dated in April 1957, Dr. J.G. noted that the Veteran has a history of epigastric pain for one week duration with diarrhea for three days.

VA treatment records dated in January 1958 documented the Veteran's continuing diagnosis of ulcerative colitis. The treatment provider noted the Veteran's report that, in 1953 in Korea, he had episodes of diarrhea with abdominal cramps and melena. He was hospitalized in March 1957 and a diagnosis of ulcerative colitis was made because of classical x-ray findings. The treatment provider explained, "[i]n view of the fact that the patient had Giardia Lamblia demonstrated at Brooks Army Medical Center in 1957 on two separate stool specimens in the hospital, it was felt that this parasite could well be pathogenic in this individual and the decision to treat was made." The treatment provider explained that the Veteran's hematuria was investigated and it is felt that the Veteran may well have a subacute and chronic glomerulonephritis. The treatment provider indicated that arrangements were made for the Veteran to undergo cystoscopy and retrograde pyelography, but the Veteran went on pass and did not return. The treatment provider explained that, as a result, the Veteran "has not received therapy for his Giardia Lamblia infection and the etiology of his hematuria has never been fully ascertained, despite the fact that it is
separate stool specimens in the hospital, it was felt that this parasite could well be pathogenic in this individual and the decision to treat was made." The treatment provider explained that the Veteran's hematuria was investigated and it is felt that the Veteran may well have a subacute and chronic glomerulonephritis. The treatment provider indicated that arrangements were made for the Veteran to undergo cystoscopy and retrograde pyelography, but the Veteran went on pass and did not return. The treatment provider explained that, as a result, the Veteran "has not received therapy for his Giardia Lamblia infection and the etiology of his hematuria has never been fully ascertained, despite the fact that it is probably due to chronic minimal glomerulonephritis." The treatment provider noted the following diagnoses: ulcerative colitis, duodenal ulcer, renal hematuria, and Giardia Lamblia infection of intestines.

The Veteran was hospitalized again in March 1959 and December 1960 for treatment of a duodenal ulcer.

VA treatment records dated in September 1972 indicated that the Veteran had a history peptic ulcer with 50 percent gastrectomy in 1963.

The Veteran was afforded a VA examination in November 1973 at which time the examiner noted that the Veteran has had ulcers "for years." The examiner stated that the Veteran "had no difficulty after subtotal gastrectomy in 1963."

In a June 1977 letter, R.F., M.D., explained that he performed surgery on the Veteran due to an incapacitating duodenal ulcer. The surgery consisted of a vagotomy/gastrostomy with Bilroth I Anastomosis. Dr. R.F. explained, "[r]esult from his surgery was considered to be excellent. He had no post gastric complications such as dumping or diarrhea."

In a separate June 1977 letter, D.S., M.D., reported that the Veteran received continuing treatment for chronic abdominal pain related to duodenal ulcer disease and diverticulosis.

In October 1977, the Veteran submitted lay statements from his spouse, his mother, brother, and two others who described his treatment for stomach complaints dating form his active duty discharge.

The Veteran was afforded a VA examination in June 1983 at which time he reported stomach swelling, discomfort, constipation, and diarrhea. A VA gastrointestinal examination diagnosed the Veteran with status-post subtotal gastrectomy for duodenal ulcer and status-post colectomy for diverticulosis.

VA treatment records dated in November 1983 documented a continuing diagnosis of diverticulosis/diverticulitis.

In an October 2014 statement, the appellant reported that she and the Veteran married in April 1955 and, later that year, the Veteran had bleeding ulcers.

A VA medical opinion was obtained in June 2019. The clinician offered a negative etiological opinion as to the nature and etiology of the Veteran's duodenal ulcer, ulcerative colitis, and diverticulitis because service treatment records did not mention ulcers.

During the February 2022 Board hearing, the appellant testified that she observed the Veteran experience stomach problems and diarrhea repeatedly after returning from Korea. She also noted that he was hospitalized, possibly as many as 10 times, for these symptoms.

Dr. B.M.B., a private psychologist, reviewed the record and offered a medical opinion in June 2022. Dr. B.M.B. found it significant that the Veteran had giardia lamblia infection in March 1958 because it is from exposure to fecal matter in ingested water, which is extremely common among military personnel who served in Asia. Dr. B.M.B. explained that research indicates a link between giardia infection and long-term bowel and stomach-related conditions. Dr. B.M.B. essentially opined that the Veteran's pattern of gastrointestinal symptoms, which led to his ulcers, began during active service just after return from Korea, and continued for the rest of his life.

The Board has considered the negative June 2019 VA nexus opinion. However, this opinion was based on an inaccurate factual premise as ulcers are indeed noted in the Veteran's STRs, as he received treatment for such in 1954. Moreover, the VA examiner failed to address the lay statements of the Veteran and the appellant concerning persistent gastrointestinal symptoms dating through the present day. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (stating that "[t]he examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (stating that it is incumbent on the VA examiner to consider all of
9 VA nexus opinion. However, this opinion was based on an inaccurate factual premise as ulcers are indeed noted in the Veteran's STRs, as he received treatment for such in 1954. Moreover, the VA examiner failed to address the lay statements of the Veteran and the appellant concerning persistent gastrointestinal symptoms dating through the present day. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (stating that "[t]he examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (stating that it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion).

In addition, the Board has considered the positive nexus opinion from B.M.B., Ph.D. Although the medical opinion addresses the Veteran's medical history, Dr. B.M.B. is a private psychologist with no demonstrated expertise in the area of internal medicine. Accordingly, the Board also finds that the opinion of Dr. B.M.B. is of little probative value concerning the ulcer disability claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

Significantly, the appellant has offered personal statements and testimony in support of the contention that the Veteran developed gastrointestinal symptoms during service that continued throughout his life. The Board finds that this testimony credible and consistent with the clinical evidence of record, including that outlined above. These records show that the Veteran sought treatment for stomach pain and diarrhea in service, as well as a 20 pound weight loss. See the STRs dated June 1954, August 1954, and September 1954. Although the June 1955 VA examiner did not identify any gastrointestinal pathology, he did document the Veteran's complaints of stomach trouble including loose bowels several times per week. The Veteran was hospitalized for ulcerative colitis in April 1957 and received subsequent medical treatment for epigastric pain, ulcerative colitis, and duodenal ulcer in 1957, 1958, and 1960. He underwent a 50 percent gastrectomy in 1963. Continuing complaints of stomach swelling, discomfort, and epigastric burning were documented in the June 1983 VA examination reports.

In order to obtain service connection based on chronicity, a claimant must show (a) subsequent manifestations of the chronic disease and (b) chronicity noted in service or within the 1-year presumptive period after discharge. See Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015); 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a) (2022). The Board notes that under 38 C.F.R. § 3.307(b), the evidentiary basis for establishing presumptive service connection may be established by medical evidence, lay evidence, or both. The applicable regulation does not require that the chronic disease be diagnosed in the presumptive period; rather, only that there be acceptable medical or lay evidence of characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c). Symptoms shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Id.

Here, the STRs and the Veteran's statements provide evidence of in-service symptoms sufficient to constitute a notation during active duty. Moreover, post-active duty treatment records reflect that these symptoms continued and were eventually attributed to a stomach ulcer requiring surgical intervention in 1963. To this end, the Board observes that the Veteran was competent to report experiencing symptoms such as epigastric pain and gastrointestinal symptoms during his military service and continuing thereafter. See Jandreau v. Shinseki, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). The Board finds no basis in the record to question the credibility of the recollections and the appellant. In fact, as indicated above, these contentions are well-supported by the Veteran's STRs and post-service treatment records.

The evidence must be persuasively against the claim in order to warrant a denial and that is not the case here; the negative evidence is not more persuasive or of
and continuing thereafter. See Jandreau v. Shinseki, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). The Board finds no basis in the record to question the credibility of the recollections and the appellant. In fact, as indicated above, these contentions are well-supported by the Veteran's STRs and post-service treatment records.

The evidence must be persuasively against the claim in order to warrant a denial and that is not the case here; the negative evidence is not more persuasive or of greater evidentiary weight. Accordingly, in light of the evidence set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's diagnosed ulcer disability was incurred during his active duty service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the appellant's favor and find that the evidence supports the grant of service connection. See 38 U.S.C. § 5107.

REASONS FOR REMAND

1. Entitlement to service connection for a low back disability.

Initially, the Board observes that review of the claims file demonstrates that the Veteran was in receipt of disability benefits from the Social Security Administration (SSA) prior to his death. The Veteran's complete SSA records have not been requested or associated with his VA claims file. As these records are potentially pertinent to the pending claims, the AOJ's failure to obtain the Veteran's SSA records is a duty to assist error requiring remand. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010) (VA's duty to assist includes obtaining records from SSA when potentially relevant).

The appellant asserts entitlement to service connection for a low back disability, which she contends that the Veteran incurred during his active duty service.

To this end, STRs show that the Veteran was treated for complaints of back pain in October 1952 and was diagnosed with a lower back strain in May 1953, after complaining of pain. His February 1955 separation examination did not document any musculoskeletal abnormalities pertaining to the spine and physical examination of the spine was normal.

Post-service treatment records show that the Veteran injured his back in May 1963 when he partially fell through a scaffold while working as a bricklayer. See September 1968 note from Ventura Orthopaedic Group. Conservative treatment therapy failed, and a disc operation and fusion were performed in December 1964. Id. Private treatment records dated in September 1968 document a continuing diagnosis of chronic lumbar strain and arthrosis, status-post lumbosacral fusion. Id. See also the VA orthopedic examination dated June1968 which similarly documented his history of post-service back injury with laminectomy and fusion in December 1963; the examiner diagnosed the Veteran with degenerative spondylosis of the lumbar spine.

During the April 2022 Board hearing, the appellant testified that she met him not long after he returned from Korea and observed him have trouble with his back for the remainder of his life.

Accordingly, the evidence is insufficient to decide the claim of entitlement to service connection for a low back disability. The Board finds that remand of this issue is warranted to obtain a VA medical opinion to address outstanding questions of nexus, with regard to the claimed low back disability. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).

2. Entitlement to service connection for an acquired psychiatric disability to include PTSD.

The appellant asserts that the Veteran was entitled to service connection for an acquired psychiatric disability to include PTSD, which was incurred as a result of his active duty service in Korea.

The Veteran's service records have been identified as being affected by the National Personnel Records Center (NPRC) fire. However, numerous STRs including his February 1955 separation examination have been associated with his VA claims file. To this end, the Veteran's available STRs do not document any complaint of or treatment for a psychiatric disability. The Board, however, does note that the Veteran was documented as being intoxicated on at least one occasion, after having gone absent without leave (AWOL). See the STR dated
an acquired psychiatric disability to include PTSD.

The appellant asserts that the Veteran was entitled to service connection for an acquired psychiatric disability to include PTSD, which was incurred as a result of his active duty service in Korea.

With respect to current diagnosis, VA and private treatment records document diagnoses of anxiety reaction, situation anxiety, depression, depressive neurosis, alcohol dependence, dysthymic disorder, and PTSD. See, e.g., the VA treatment records dated December 1960, September 1972, March 1973; the VA examinations dated November 1973 and June 1983; see the letter from D.S., M.D. dated June 1973; the letter from M.C., Ph.D. dated October 1982; and the private psychological evaluation from B.M.B., Ph.D., dated June 2022.

With respect to in-service incurrence, the Veteran claimed that, while stationed in Korea from June 1953 to September 1953, he injured his back in an incident in which he and his unit sustained enemy artillery fire. See the Veteran's stressor statement dated October 2014. He reported that he was hit on the back of his head by shrapnel. Id. He further stated that his best friend, with the last name of L., was killed. Id. He reported that several other soldiers, including one with the last name of H. was also killed in the attack. Id. The Veteran reported that he received the Combat Infantry Badge as a result of the incident. Id.

The Board notes that the Veteran's available service records do not contain any verification that he served in combat while stationed in Korea. He did not receive the Combat Infantry Badge.

The RO attempted to verify the claimed stressor concerning the 1953 incident described above. An April 2018 Defense Personnel Records Information System (DPRIS) reported that available historical documents were reviewed, and they were not able ot document that the 112th Infantry Battalion deployed to Korea during 1953. DPRIS indicated, "[w]e were able to document that the 40th Infantry Division was located in Korea during 1953. In addition, an Order of Battle covering the time period January 22, 1952 to July 27, 1953 submitted by the 40th Infantry Division states that on June 2, 1953, an enemy attack on a 40th Infantry Division position in Korea, that included hand to hand combat, resulted in the death of at least 15 enemy soldiers." The DPRIS response further instructed, "[p]lease review [the Veteran's] OMPF to ensure that his correct unit of assignment down to the company level has been provided for his deployment to Korea."

In the August 2019 SOC, the RO reported that that it is unclear when the Veteran first arrived in Korea. STRs show that he was in Germany until at least May 1953 and was in Japan in July 1953. There is also no documentation of treatment for shrapnel or head wounds in the Veteran's STRs.

However, the Board notes that the RO has not undertaken any stressor development concerning the Veteran's report of the deaths of fellow service members who he identified by the last name of L. and H. Therefore, the Board finds that, upon remand, the RO should attempt to verify the stressor in this regard.

The Board recognizes that the appellant submitted a June 2022 private psychological evaluation from B.M.B., Ph.D., who reported that the Veteran was diagnosed with PTSD, which was incurred during his active service. However, the conclusions drawn in the private psychological evaluation were predicated upon an unverified in-service stressor.

Given the treatment records documenting the Veteran's long history of mental health diagnoses, as well as the appellant's contentions that the Veteran developed an acquired psychiatric disability during his active duty service, the Board therefore finds that, upon remand, a VA medical opinion should be obtained to address outstanding questions concerning the etiology of the claimed acquired psychiatric disability to include PTSD. See Charles, supra; see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent
diagnosed with PTSD, which was incurred during his active service. However, the conclusions drawn in the private psychological evaluation were predicated upon an unverified in-service stressor.

3. Entitlement to service connection for a respiratory disability to include lung cancer is remanded.

4. Entitlement to service connection for the cause of the Veteran's death is remanded.

5. Entitlement to special monthly compensation based on the need for aid and attendance or housebound status.

The matters of entitlement to service connection for a respiratory disability to include lung cancer, service connection for the cause of the Veteran's death, and entitlement to special monthly compensation are inextricably intertwined with the other claims being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two or more issues are inextricably intertwined if one claim could have significant impact on the other).

The matter is REMANDED for the following action:

1. Request that SSA furnish a copy of its decision regarding the Veteran's applications for disability benefits, as well as copies of all medical records underlying that determination. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file.

2. After obtaining any additional necessary details from the Veteran, conduct all necessary research to verify the Veteran's alleged stressors, to include the incident in which he was injured due to incoming artillery fire during an incident that took place in 1953, and resulted in the death of fellow servicemembers assigned to the Veteran's unit, who he identified as L. and H. in the October 2014 stressor statement. Associate all obtained evidence with the claims file, including any negative responses and documentation of all efforts to complete the research. Any additional action necessary for independent verification of the alleged stressor, including follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, the RO should notify the Veteran, explain the efforts taken to obtain this information, and describe any further action to be taken. If any described stressor lacks sufficient information for verification purposes, such should be noted in a formal finding.

3. Refer the VA claims file to a medical professional to provide an opinion as to the claimed low back disability. After reviewing the record, the clinician should provide an opinion, with supporting rationale, as to the following:

Whether it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's low back disability was incurred in his active duty service or manifested within a year of his active duty discharge?

In rendering this opinion, the examiner must address the description of the Veteran's in-service symptoms and injuries as well as his post-service symptoms, provided in lay statements of the Veteran, as well as in the Board hearing testimony of the appellant.

The clinician is advised that the Board has not made credibility determinations with respect to the Veteran's symptom history as reported by the Veteran and the appellant, pending the ordered opinion. However, the documented lay statements are competent to attest to factual matters of which they had first-hand knowledge, such as experiencing perceivable symptoms.

4. Refer the VA claims file to a medical professional to provide an opinion as to the claimed acquired psychiatric disability to include PTSD. After reviewing the record, the clinician should provide an opinion, with supporting rationale, as to the following:

(a). The examiner should opine as to whether the Veteran was diagnosed with PTSD. If so, the examiner should indicate whether it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's diagnosed PTSD was due to an in-service stressor that has been corroborated by the evidence of record.

(b). The VA examiner should also render an opinion as to whether it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed acquired psychiatric disorder other than PTSD had its (their) clinical onset in service, or (in the case of a psychosis) within the first post service year, or
the following:

In rendering this opinion, the examiner must address the description of the Veteran's in-service symptoms as well as his post-service symptoms, provided in lay statements of the Veteran, as well as in the Board hearing testimony of the appellant.

Katherine Kiemle Buckley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Behlen, 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.

Analyze in VA Law Explorer