Citation Nr: 18147627 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-13 131 DATE: November 5, 2018 REMANDED Entitlement to service connection for a lumbar strain, to include as secondary to service-connected bilateral knee disorder, is remanded. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to a lumbar strain and service-connected bilateral knee disorder, is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for hypertension, to include as secondary to a bladder disorder and a sleep disorder, is remanded. Entitlement to service connection for a liver disorder, to include as secondary to a bladder disorder, is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to a lumbar strain and hypertension, is remanded. Entitlement to service connection for a kidney disorder, to include as secondary to a bladder disorder and hypertension, is remanded. Entitlement to service connection for a bladder disorder (claimed as dysuria) is remanded. Entitlement to service connection for a sleep disorder, to include as secondary to a bladder disorder, is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disorder with limited flexion is remanded. Entitlement to an initial compensable rating for a right knee disorder with limited flexion is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1992 to August 1996. With respect to the Veteran’s claims for entitlement to service connection for a lumbar strain, right lower extremity radiculopathy, and bilateral pes planus, the Board notes that the Veteran was most recently denied service connection in March 1998 (radiculopathy and pes planus) and October 2011 (lumbar strain). The Veteran did not appeal these denials, and the March 1998 and October 2011 rating decisions became final. See 38 C.F.R. § 20.1103 (2018). As such, the Veteran would typically be required to submit new and material evidence to reopen these claims for service connection. See 38 C.F.R. § 3.156(a) (2018). However, in February 2016, the Veteran submitted a copy of his separation report of medical history, which contains reference to symptoms of bilateral pes planus and recurrent back pain. This service treatment record does not appear to have been previously associated with the claims file. In such an instance, where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156(c). The Board will therefore proceed with the claims for entitlement to service connection for a lumbar strain, right lower extremity radiculopathy, and bilateral pes planus on a merits consideration, as opposed to a petition to reopen the claims based on new and material evidence. 1. Entitlement to service connection for a lumbar strain, to include as secondary to service-connected bilateral knee disorder, is remanded. Remand is necessary to obtain an addendum VA opinion, or a new VA examination if necessary. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is considered adequate “where it is based on consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, on the April 2011 VA examination, the examiner opined that the Veteran’s low back disorder is less likely as not caused by or the result of his service-connected bilateral knee disorder. The examiner reasoned that the Veteran’s chronic degenerative disorder of the spine was exacerbated by a disc herniation, impinging both on the spine and the left peripheral nerve. The examiner stated that this was a progressive condition and was unlikely caused by the knee disorder. The examiner stated that the knee disorder may have induced changes in the Veteran’s gait which could strain the back, but not induce arthritis or disc herniation. On the August 2011 VA examination, the examiner opined that the Veteran’s lumbar spine strain was less likely than not incurred in or caused by service. The examiner reasoned that the Veteran was seen only once in September 1995 for low back pain of six months duration. The examiner stated that the Veteran was released from active duty in January 1996 and the separation physical was silent regarding a complaint of low back pain. The examiner indicated that the Veteran’s initial VA clinical record in March 2005 showed chronic low back pain due to a disc bulge and there were no medical records addressing complaints of low back problems for nearly twenty years between release from active duty in 1996 to the report of chronic low back pain in 2005. Also, the examiner noted that there was no evidence of treatment for chronic low back pain during active duty and no evidence of treatment from chronic low back pain within one to two years after release from service. Therefore, the examiner concluded that since there was no high impact injury to the lumbar spine during active duty, it is less likely that the low back pain was related to the one-time low back pain in 1995. Although the August 2011 examiner found no medical documentation of a lumbar strain between separation from service in August 1996 and the first complaint in 2005, service treatment records submitted by the Veteran show that he complained of recurrent back pain on the June 1996 report of medical history at separation from service. Also, private treatment records submitted by the Veteran demonstrate that he experienced symptoms of a low back disorder within one year of separation from service. Further, although the April 2011 examiner found no medical evidence of the Veteran’s bilateral knee disorder causing the lumbar strain, the examiner’s rationale implies that his bilateral knee disorder may aggravate the lumbar strain. The Board finds that the examiner’s opinion and rationale do not offer sufficient detail for the Board to make an informed decision regarding causation or aggravation between the Veteran’s service-connected bilateral knee disorder and the lumbar strain. Therefore, remand is required to obtain an addendum VA opinion, or to provide an additional VA examination if found necessary. 2. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to a lumbar strain and service-connected bilateral knee disorder, is remanded. Remand is necessary to obtain an addendum VA opinion, or a new VA examination if necessary. Here, private treatment records, specifically in May 2015, show that the Veteran’s right lower extremity radiculopathy is caused by his lumbar strain. As a result of the need for an addendum VA opinion for the Veteran’s lumbar strain, a VA opinion or examination is required to determine if the Veteran’s right lower extremity radiculopathy is related to service or was caused or aggravated by his lumbar strain or by his service-connected bilateral knee disorder. 3. Entitlement to service connection for bilateral pes planus is remanded. Remand is necessary to obtain an addendum VA opinion, or a new VA examination if necessary. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, when no preexisting condition is noted upon entry into service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that “[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In considering whether to apply the presumption of aggravation, the Board must first determine whether there was an increase in the disability’s severity and, if so, whether it was beyond the natural progression of the disease. 38 C.F.R. § 3.306(a). The claimant bears the burden of showing that the preexisting condition worsened in service. Wagner, supra. Until the claimant shows an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id.; see also Horn v. Shinseki, 25 Vet. App. 231 (2011). The Board acknowledges that the Veteran’s diagnosed pes planus pre-existed his service and was noted at entry on his March 1992 entrance examination. Thus, the presumption of soundness does not apply, and the Board must determine whether the Veteran’s pes planus underwent an increase in severity during service. Here, the Veteran was provided a VA examination in September 2015. At that time, the examiner opined that the Veteran’s preexisting pes planus was less likely than not aggravated beyond natural progression by service. However, the examiner did not consider the Veteran’s statement on the June 1996 separation report of medical history that he experienced pain when standing for five minutes. Further, the examiner did not address the March 1992 entrance examination note that the Veteran’s bilateral pes planus was asymptomatic and the January 1998 VA examiner’s finding that the pes planus was symptomatic. It appears that the September 2015 examiner did not apply the correct standard when addressing whether the Veteran’s service aggravated his pre-existing pes planus; the examiner also did not have the entire record available for consideration at the time of the examination. Therefore, an addendum VA opinion regarding whether the Veteran’s service aggravated his preexisting foot disability is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for hypertension, to include as secondary to a bladder disorder and a sleep disorder, is remanded. Remand is required to obtain a VA examination. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. Id.; see also 38 C.F.R. § 3.159(c)(4). Here, the June 1996 separation examination indicated that the Veteran’s blood pressure was 147/79. And in a September 1996 VA treatment record the Veteran’s blood pressure was 156/82. The record is not clear when the Veteran was diagnosed with hypertension, but the separation examination and VA treatment records immediately after separation indicate elevated blood pressure. Therefore, the criteria for McLendon have been met. And as a result, the Board cannot make a fully informed decision on the issue of entitlement to service connection for hypertension because no VA examination has been performed and no VA examiner has opined whether the Veteran’s hypertension was caused by service. Therefore, a VA examination is necessary. 5. Entitlement to service connection for a liver disorder, to include as secondary to a bladder disorder, is remanded. Because a decision on the claim of entitlement to service connection for a bladder disorder could significantly impact a decision on the issue of entitlment to service connection for a liver disorder, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 6. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to a lumbar strain and hypertension, is remanded. In a July 2015 VA treatment record, the medical provider stated that the Veteran’s ED was likely caused by his blood pressure medication. Also, in the February 2016 notice of disagreement (NOD), the Veteran submitted medical literature that indicates that medications prescribed for back disorders cause ED. As the Veteran’s claims for service connection for lumbar strain and hypertension are being remanded and there is evidence of record supporting the claim for ED, a VA examination is necessary to assess whether the Veteran’s ED is related to service or was caused or aggravated by his hypertension or lumbar strain. 7. Entitlement to service connection for a kidney disorder, to include as secondary to a bladder disorder and hypertension, is remanded. A February 2015 VA treatment record indicated that the Veteran has a current diagnosis of chronic kidney disease, stage 2. The medical provider’s impression was that the Veteran’s chronic kidney disease was secondary to his hypertension. Further, in his February 2016 NOD, the Veteran claimed that his kidney disorder was secondary to his bladder disorder. As the Veteran’s claim for hypertension and bladder disorder are herein remanded for VA examinations and there is evidence of record supporting the claim for a kidney disorder, a VA examination is necessary to assess whether the Veteran’s kidney disorder is related to service or was caused or aggravated by his hypertension or bladder disorder. 8. Entitlement to service connection for a bladder disorder (claimed as dysuria) is remanded. Remand is required to obtain a VA examination. Here, in a December 1994 STR, the Veteran was noted to experience symptoms of discharge and dysuria. In July 2014 and September 2014 VA treatment records, the Veteran was treated for bladder lesions and bladder cystitis. In a February 2015 VA treatment record, the Veteran reported symptoms of dysuria and increased frequency. Therefore, the criteria for McLendon have been met. And as a result, the Board cannot make a fully informed decision on the issue of entitlement to service connection for a bladder disorder because no VA examination has been performed and no VA examiner has opined whether the Veteran’s bladder disorder was caused by service. Therefore, a VA examination is necessary. 9. Entitlement to service connection for a sleep disorder, to include as secondary to a bladder disorder, is remanded. In the February 2016 NOD, the Veteran stated that he experienced sleep impairment in service when he had symptoms of dysuria and a bladder disorder. As the bladder disorder is being remanded for a VA examination, a VA examination is necessary to assess whether the Veteran’s sleep disorder is related to service or is caused or aggravated by his bladder disorder. 10. Entitlement to an initial rating in excess of 10 percent for a left knee disorder with limited flexion is remanded. 11. Entitlement to an initial compensable rating for a right knee disorder with limited flexion is remanded. In Correia v. McDonald 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The Court specified that VA examination reports should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a test is not conducted, the examiner should explain why such test was not necessary. On the September 2015 VA examination of the bilateral knees, the examiner did not test for passive motion, pain on passive motion, or pain on non-weight-bearing. In addition, the examiner did not provide an explanation for why the tests were not necessary. Therefore, the Board finds that the September 2015 examination is inadequate under the standard set forth in Correia, and a remand is warranted for a VA examination that tests the range of motion in active motion, passive motion, weight-bearing, and non-weightbearing motions, for the Veteran’s bilateral knees. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, and if necessary an additional VA examination, from an appropriate clinician to determine the nature and etiology of the Veteran’s claimed low back disorder. The examiner must opine whether it is at least as likely as not that any diagnosed low back disorder is related to the Veteran’s service. The examiner must also opine as to whether it is at least as likely as not that: • The Veteran’s low back disorder was caused by the bilateral knee disorder, or • The Veteran’s low back disorder was aggravated beyond its natural progression by the bilateral knee disorder. 2. Obtain an addendum opinion, and if necessary an additional VA examination, from an appropriate clinician to determine the nature and etiology of the Veteran’s right lower extremity radiculopathy. The examiner must opine whether it is at least as likely as not that the right lower extremity radiculopathy is related to the Veteran’s service. The examiner must also opine as to whether it is at least as likely as not that: • The Veteran’s right lower extremity was caused by the low back disorder, or • The Veteran’s right lower extremity was aggravated beyond its natural progression by the low back disorder. • The Veteran’s right low extremity was caused by a service-connected bilateral knee disorder. • The Veteran’s right lower extremity was aggravated beyond its natural progression by a service-connected bilateral knee disorder. 3. Obtain an addendum opinion, and if necessary an additional VA examination, from an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral pes planus. The examiner must opine, first, as to whether the pes planus increased in severity during service. If so, the examiner must address whether there is clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disability. The examiner is separately requested to provide an opinion as to whether the Veteran’s pes planus is as least as likely as not directly etiologically related to the Veteran’s period of active service. The examiner must discuss the Veteran’s March 1992 entrance examination and the medical providers finding that the Veteran’s bilateral pes planus was moderate and asymptomatic; the Veteran’s report of foot pain on his June 1996 separation report of medical history; and the January 1998 VA examiner’s finding that the Veteran’s bilateral pes planus was symptomatic. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. The examiner must opine as to whether the hypertension is at least as likely as not related to service. The examiner must also opine as to whether it is at least as likely as not that: • The Veteran’s hypertension was caused by a sleep disorder, or • The Veteran’s hypertension was aggravated beyond its natural progression by a sleep disorder. • The Veteran’s hypertension was caused by a bladder disorder, • The Veteran’s hypertension was aggravated beyond its natural progression by a bladder disorder. The examiner must address the medical literature submitted in the Veteran’s February 2016 NOD relating hypertension to a sleep disorder and a bladder disorder. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s erectile dysfunction (ED). The examiner must opine as to whether the ED is at least as likely as not related to service. The examiner must also opine as to whether it is as likely as not: • The Veteran’s ED was caused by hypertension or medications used to treat hypertension, or • The Veteran’s ED was aggravated beyond its natural progression by hypertension or medications used to treat hypertension. • The Veteran’s ED was caused by a low back disorder or medications used to treat a back disorder, or • The Veteran’s ED was aggravated beyond its natural progression by a low back disorder or medications used to treat a back disorder. The examiner must address the July 2015 VA treatment record indicating that the Veteran’s ED was likely caused by his blood pressure medication. The examiner must also address the Veteran’s submitted medical literature in the February 2016 NOD indicating that medications prescribed for back disorders cause ED. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s kidney disorder. The examiner must opine as to whether the kidney disorder is at least as likely as not related to service. The examiner must also opine as to whether it is at least as likely as not that: • The Veteran’s kidney disorder was caused by hypertension, or • The Veteran’s kidney disorder was aggravated beyond its natural progression by hypertension. • The Veteran’s kidney disorder was caused by a bladder disorder, or • The Veteran’s kidney disorder was aggravated beyond its natural progression by a bladder disorder. The examiner must address the February 2015 VA treatment record stating that the kidney disorder was secondary to hypertension. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s bladder disorder. The examiner must opine as to whether the bladder disorder is at least as likely as not related to service, to include specifically the December 1994 treatment for discharge and dysuria. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s sleep disorder. The examiner must opine as to whether the sleep disorder is at least as likely as not related to service. The examiner must also opine as to whether it is at least as likely as not that: • The Veteran’s sleep disorder was caused by a bladder disorder, or • The Veteran’s sleep disorder was aggravated beyond its natural progression by a bladder disorder. 9. Schedule the Veteran for an examination of the current severity of his bilateral knee disorder with limited flexion. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing in both knees. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral knee disorder alone and discuss the effect of the Veteran’s bilateral knee disorder on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel