Citation Nr: 1804097 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 15-25 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased evaluation higher than 20 percent for lumbar spine intervertebral disc syndrome (IVDS)/degenerative disc disease (DDD). 2. Entitlement to service connection for right lower extremity radiculopathy, including as secondary to the service-connected lumbar spine IVDS/DDD. 3. Entitlement to service connection for left lower extremity radiculopathy, including as secondary to the service-connected lumbar spine IVDS/DDD. 4. Entitlement to service connection for hypertension, including as due to in-service exposure to herbicides. 5. Entitlement to service connection for erectile dysfunction. 6. Entitlement to service connection for a chronic disability manifested by difficulty breathing, including as due to in-service exposure to herbicides. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from October 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The issue of entitlement to a TDIU was raised by the record as a component of the claim for increase on appeal. See, e.g., April 2015 Notice of Disagreement. The Board observes that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather part of the adjudication of the claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits of the underlying disability. Id. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board must reconsider this case in light of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2015) requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board has reviewed the findings from the Veteran's most recent November 2014 VA examination for his lumbar spine disability, and sees that these findings do not meet the specifications of Correia. Specifically, the examiner did not address whether the range-of-motion testing was conducted on active or passive motion and weight-bearing or nonweight-bearing. Given this, the Board is not satisfied that the examination findings are adequate for a contemporaneous rating. Therefore, an additional examination is necessary under 38 C.F.R. § 3.159(c)(4). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination, even if not statutorily obligated to, it must provide an adequate one, else, notify the claimant why one cannot or will not be provided). Regarding the issue of bilateral lower extremity radiculopathy, the November 2014 VA examination report reflects that a diagnosis was not found and, consequently, an etiological opinion was not provided. As the Board has remanded the increased rating claim for increase for further development, and the issue of bilateral lower extremity radiculopathy is deemed secondary to the service-connected lumbar spine disability, the bilateral lower extremity radiculopathy service connection claim is inextricably intertwined with the claim for increase. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Also, the Board notes that post-service medical records show that the Veteran is being treated for radicular symptoms and his STRs reflect that he was diagnosed with right lower extremity radiculopathy affecting the sciatic nerve during service. See STRs dated Jan. 18, 1970 (lumbar spine pain with pain down right leg); and, September 2, 1971 (right sciatic nerve secondary to low back pain); Thus, a new opinion is warranted. Next, pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide a claim. 38 C.F.R. § 3.159(c)(4)(i). In this case, the Veteran has not been afforded a VA examination to address the nature and etiology of his hypertension, erectile dysfunction, or a chronic disability manifested by difficulty breathing. As the record suggests a possible relationship between the Veteran's claimed disabilities and his military service, including as secondary to a service-connected disability, the "low threshold" standard for determining when a VA examination is necessary has been met. Thus, a remand for such examinations is necessary. McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Lastly, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the Veteran's claim for increase and must be deferred pending resolution of the claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center(s) and obtain all outstanding treatment records if relevant to these claims. Also ask the Veteran to provide, or authorize VA to obtain, all relevant private medical records that have not yet been obtained. All efforts to obtain these records must be documented in the claim file and the Veteran properly notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). 2. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA compensation examination to reassess the current severity of his lumbar spine disability and all associated upper and lower extremity neurological and other impairments. His claims file, including a copy of this remand, must be made available to the examiner for review of the history of this disability. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must: (a) Conduct any indicated diagnostic tests that are deemed necessary for an accurate assessment, including an analysis of any additional disability due to pain, weakness, premature or excess fatigability, or incoordination, such as during prolonged, repeated use or during "flare ups". The examiner should report (in degrees) the point at which pain is objectively recorded. These determinations, if feasible, should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups or prolonged use. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been done and reflect the results of the testing. If the examiner is unable to perform the required testing or concludes the testing is unnecessary, he or she must clearly explain why that is so. (b) Indicate whether the Veteran has had any incapacitating episodes during the past 12 months, and, if so, the number of episodes and the duration of them. An incapacitating episode is defined by VA regulation as a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician. (c) Determine whether the Veteran has experienced any neurologic abnormalities, including, but not limited to, bowel or bladder impairment or any radiculopathy, which can be associated with his lumbar spine disability. If so, the examiner must specifically indicate which nerves have been affected by paralysis, incomplete paralysis, neuralgia, or neuritis, and must further describe the severity of the neurologic impairment in terms of being mild, moderate, moderately severe, severe, or complete. (d) As well, comment on what limitations might be expected in the workplace (based on the Veteran's employment history and training) with respect to his lumbar spine disability and all consequent impairment. The examiner must provide complete rationale for all opinions given, preferably citing to clinical findings or other medical authority. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice. 3. After receiving all additional treatment records, schedule the Veteran for an appropriate VA compensation examination to determine the nature and etiology of his hypertension. His claims file, including a copy of this remand, must be made available to the examiner for review of the history of this disability. Following review of the evidence of record, the examination results, and the Veteran's statements, the examiner must address the following: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's hypertension had its onset during service or is it otherwise related to service? The absence of evidence of contemporaneous medical evidence in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. (b) Is it at least as likely as not that the Veteran's hypertension had its onset during the year immediately following his separation from service in April 1972? (c) Is it at least as likely as not that the Veteran's hypertension, was either caused, or aggravated, by exposure to herbicides during his Vietnam service? The Board notes that the absence of hypertension from the list of presumptive conditions which are presumed to be the result of exposure to herbicides in Vietnam is not, by itself, a sufficient explanation for a negative opinion-i.e., if it is the examiner's opinion that the Veteran's hypertension is not associated with his exposure to an herbicide agent in Vietnam, then the examiner must do more to explain his or her opinion concerning the probability of a relationship between this particular Veteran's hypertension and his exposure to herbicides than to indicate that hypertension is not on the list of presumptive diseases. All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. 4. After receiving all additional treatment records, schedule the Veteran for an appropriate VA compensation examination to determine the nature and etiology of his erectile dysfunction. His claims file, including a copy of this remand, must be made available to the examiner for review of the history of this disability. Following review of the evidence of record, the examination results, and the Veteran's statements, the examiner must address whether it is at least as likely as not (50 percent probability or more) that the Veteran's erectile dysfunction had its onset during service or is it otherwise related to service. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. 5. After receiving all additional treatment records, schedule the Veteran for an appropriate VA compensation examination that addresses whether the Veteran has a chronic disability manifested by a difficulty breathing, including a heart condition, and, if so, whether it is at least as likely as not (50 percent probability or more) that it was incurred in or otherwise etiologically related to his service. His claim file, including a copy of this remand, must be made available to the examiner for review in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. The examiner must address the following: (a) Identify any chronic disability manifested by a difficulty breathing, to include a heart condition, which the Veteran currently has, or previously had during the pendency of this appeal from August 2014 to the present. If none have been identified, the examiner should explain this finding. (b) If so, please note the diagnosis. Next, is it at least as likely as not (50 percent probability or more) that the Veteran's chronic disability manifested by a difficulty breathing, to include a heart condition, is etiologically related to his service, to include his presumed exposure to herbicides (Agent Orange) during service? All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. The absence of evidence of contemporaneous medical evidence in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. 6. Ensure the requested examination reports are responsive to the applicable rating criteria. If they are not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 4.2. 7. Request that the Veteran complete and return VA Form 21-8940 (an official TDIU application), providing his employment history with salary information and average hours worked, etc., from July 1, 2006 to the present. 8. After completing this and any other development deemed necessary, readjudicate the claims in light of all additional evidence. If these claims are denied, or are not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).