Citation Nr: 1310544 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-24 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of a stroke. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for depression. 4. Entitlement to service connection for erectile dysfunction. 5. Entitlement to service connection for a right shoulder condition. 6. Entitlement to service connection for a left shoulder condition. 7. Entitlement to service connection for a right knee condition. 8. Entitlement to service connection for a left knee condition. 9. Entitlement to service connection for hypertension. 10. Entitlement to service connection for reflux, also claimed as digestive disorders. 11. Entitlement to a total disability rating based on individual unemployability. 12. Entitlement to a higher disability rating for impairment of the right leg, residuals of epidural abscess of the thoracic spine, currently rated as 20 percent disabling. 13. Entitlement to a higher disability rating for deformity of the vertebral body and degenerative changes of the thoracic spine as residual of epidural abscess of the thoracic spine, currently rated as 10 percent prior to March 21, 2011 and in excess of 20 percent from March 21, 2011. REPRESENTATION Appellant represented by: Paul Gordon, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to March 1981. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision from the Department of Veterans Affairs Regional Office (RO) in Winston-Salem, North Carolina. In June 2012, the Veteran testified at a videoconference hearing in front of the undersigned Veteran's Law Judge. A transcript of the hearing has been associated with the claim file. The Board has reviewed the Veteran's Virtual VA file and notes that there are no additional relevant records contained therein. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for residuals of a stroke, sleep apnea, depression, erectile dysfunction, a right and left shoulder disorder, a right and left knee disorder, hypertension and reflux disease; entitlement to TDIU; and an increased disability rating for the service connected deformity of the vertebral body and degenerative changes of the thoracic spine as a residual of epidural abscess of the thoracic spine and impairment of the right leg, residuals of epidural abscess of the thoracic spine. After a careful review of the evidence of record, the Board finds that the claim must be remanded for additional development prior to deciding the claim. With regards to the claims for service connection, the Board notes that the Veteran has argued that his claimed disabilities are a result of his service connected back and right leg disabilities. He has argued that his service connected back and right leg disability prevent him from exercising, which has led to weight gain which has in turn caused him hypertension which led to his stroke and sleep apnea. He further has argued that the pain associated with his service connected back and right leg disabilities has worsened his hypertension. He has also argued that he has fallen numerous times due to his back and right leg disabilities and this has led to disabilities of the bilateral knees and shoulders. He further argues that he is depressed due to his service connected disabilities. Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran was afforded a VA examination in November 2007. At the time, the examiner provided an opinion as to a direct relationship between the Veteran's service connected disabilities and the claimed disabilities. However, he did not provide an opinion with regards to aggravation. Therefore, a new opinion regarding aggravation is needed prior to deciding the claim. Considering the Veteran's arguments, the examiner should specifically provide an opinion as to whether any pain associated with the Veteran's back and right leg disabilities has aggravated his hypertension. Regarding the claim for service connection for depression, the Board notes that an opinion as to any relationship between depression and his service connected back and right leg disabilities has not been obtained. On remand, a medical opinion should be obtained. The Veteran also seeks a higher disability rating for deformity of the vertebral body and degenerative changes of the thoracic spine as a residual of epidural abscess of the thoracic spine and impairment of the right leg, residuals of epidural abscess of the thoracic spine. Most recently, he was afforded a VA examination in March 2011. After a review of the examination report, the Board finds that a new examination is needed. Indeed, while the Veteran has argued he suffers from erectile dysfunction, the examiner noted that the Veteran reported no erectile dysfunction. The records is clear and replete with treatment records showing a diagnosis of and treatment for erectile dysfunction. Moreover, the Veteran testified at the videoconference hearing he continues to experience erectile dysfunction. Furthermore, the examiner reported that the Veteran did not report falling as a result of his back disability. However, the Board notes that the center of the Veteran's argument is that the back and right leg disability have caused him to repeatedly fall and injure his shoulders and knees causing additional disability. It is unclear whether the examination report noted what the Veteran reported or whether an assumption was made by the examiner in the absence of the Veteran's reports of these symptoms. Finally, and perhaps most troubling, are the examiner's report that the Veteran reported being able to walk without limitations, followed by noting that the Veteran reported being functionally impaired by being limited to standing or walking for no more than 3 minutes. These statements are completely contradictory and put into question the reliability of the examination report as a whole. Accordingly, a new examination is needed. Regarding the claim for an increased disability rating for the right leg, the Board finds that the new examination to be provided with regards to the back may provide relevant evidence pertaining to this issue and therefore, the Board will wait for the new examination to render its decision on this issue. Regarding the claim for TDIU, the Board notes that the March 2011 VA examiner did not provide an opinion as to the effects of the Veteran's service connected disability on his employability. Moreover, as the issue of entitlement to TDIU is inextricably intertwined with the issues being remanded herein, the claim must be readjudicated after the requested development has been completed. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain and appropriate VA examination to determine the nature and etiology of residuals of a stroke, sleep apnea, erectile dysfunction, a right and left shoulder disorder, a right and left knee disorder, hypertension and reflux disease. The examiner must be provided the claim file for their review and the examination report must reflect that the claim file was reviewed. After an examination of the Veteran, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that: (1) the stroke, sleep apnea, erectile dysfunction, a right and left shoulder disorder, a right and left knee disorder, hypertension and reflux disease are proximately due to the service-connected deformity of the vertebral body and degenerative changes of the thoracic spine as a residual of epidural abscess of the thoracic spine and impairment of the right leg, residuals of epidural abscess of the thoracic spine; or in the alternative, whether they have been permanently aggravated beyond their natural progression by the service-connected deformity of the vertebral body and degenerative changes of the thoracic spine as a residual of epidural abscess of the thoracic spine and impairment of the right leg, residuals of epidural abscess of the thoracic spine. (2) the Veteran's obesity is caused by or permanently aggravated by the service connected back and right leg deformity of the vertebral body and degenerative changes of the thoracic spine as a residual of epidural abscess of the thoracic spine and impairment of the right leg, residuals of epidural abscess of the thoracic spine. (3) the pain associated with the service connected deformity of the vertebral body and degenerative changes of the thoracic spine as a residual of epidural abscess of the thoracic spine and impairment of the right leg, residuals of epidural abscess of the thoracic spine have permanently aggravated the Veteran's hypertension beyond its natural progression. All indicated tests and studies are to be performed. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. A detailed rationale for any opinion expressed should be provided. 2. The RO should schedule the Veteran for a psychiatric examination to determine the nature and etiology of the claimed depression. Based on a review of the record and an examination of the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's depression is proximately due to service-connected deformity of the vertebral body and degenerative changes of the thoracic spine as a residual of epidural abscess of the thoracic spine and impairment of the right leg, residuals of epidural abscess of the thoracic spine; or in the alternative, whether it has been permanently aggravated beyond its natural progression by the same. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. A detailed rationale for any opinion expressed should be provided. 3. The RO should schedule the Veteran for a VA orthopedic examination to determine the current level of severity of the Veteran's deformity of the vertebral body and degenerative changes of the thoracic spine as a residual of epidural abscess of the thoracic spine. The claim file should be made available to the examiner for their review and the examination report must notate said review. The examiner is to obtain a history of all current symptoms associated with the Veteran's thoracic spine. Ranges of motion of the thoracic spine should be obtained with a goniometer and clearly documented in the claim file. The examination must also include a complete neurological examination of the lower extremities. The examiner must provide an opinion as to the impact of the service connected deformity of the vertebral body and degenerative changes of the thoracic spine as a residual of epidural abscess of the thoracic spine and impairment of the right leg, residuals of epidural abscess of the thoracic spine on the Veteran's unemployability. 4. Thereafter, readjudicate the issues on appeal. If any benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).