Citation Nr: 18156132 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 13-07 390 DATE: December 7, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder other than an anxiety disorder to include posttraumatic stress disorder (PTSD), a trauma and stressor related disorder, and associated depression is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) secondary to service-connected mental disabilities is granted. Entitlement to service connection for hemorrhoids secondary to service-connected GERD is granted. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for polyps is remanded. Entitlement to an initial disability rating exceeding 10 percent for a lumbar spine disability is remanded. Entitlement to a disability rating exceeding 20 percent from October 31, 2016 for a lumbar spine disability is remanded. Entitlement to an initial disability rating exceeding 10 percent for radiculopathy in the right lower extremity is remanded. Entitlement to an initial disability rating exceeding 10 percent for radiculopathy in the left lower extremity is remanded. Entitlement to an initial disability rating exceeding 10 percent for an anxiety disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence shows that the Veteran suffers from PTSD, a trauma and stressor related psychiatric disorder, and associated depression related to events in-service including exposure to mortars. 2. The evidence shows that the Veteran’s GERD is caused and aggravated by his service-connected mental disabilities. 3. The evidence shows that the Veteran’s hemorrhoids are caused and aggravated by his service-connected GERD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder other than an anxiety disorder to include PTSD, a trauma and stressor related disorder, and associated depression have been met. 38 U.S.C. §§ 1110 , 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f), 3.310 (2017). 2. The criteria for entitlement to service connection for GERD secondary to service-connected mental disabilities have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017). 3. The criteria for entitlement to service connection for hemorrhoids secondary to service-connected GERD have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to October 1971. This appeal comes to the Board of Veterans’ Appeals (Board) from December 2011 and September 2012 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters for further development in July 2015. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board considered the Veteran’s PTSD claim broadly to include other mental disabilities to the benefit of the Veteran. See July 2015 Board decision. The Veteran is currently service-connected for an anxiety disorder based in part on the opinion of a March 2011 mental health examiner, who indicated the Veteran’s anxiety disorder was related to the Veteran’s claimed in-service stressors to include exposure to mortars. However, the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for an additional opinion on whether the Veteran has additional mental disabilities related to his service to include depression and PTSD (to include as related to fear of hostile military activity). VA examiners have opined that while the Veteran likely met the diagnostic criteria for PTSD sometime prior to the period at issue, his symptoms improved with treatment to the point where he no longer met the criteria for PTSD under applicable diagnostic manuals. See October 2016 VA mental health examination; March 2011 VA mental health examination. However, the Veteran’s VA treatment records contain some indications of more severe symptomatology than identified by the VA examiners including assessments of chronic PTSD and a mild to moderate depressive disorder. See, e.g. August 2016 Mental Health Progress Note from West Haven VA Medical Center (VAMC) (noting the Veteran had some recurrence of flashbacks). Affording the Veteran the benefit of the doubt, the Board finds the Veteran has a current disability of PTSD and associated depression. Additionally, the October 2016 VA mental health examiner opined that while the Veteran has not met applicable diagnostic criteria for PTSD during the period at issue, the Veteran currently meets the criteria for an “Other Specified Trauma and Stressor Related Disorder.” The examiner indicated that the disorder is more likely than not the result of Vietnam military stressors to include exposure to mortar attacks. The Board finds this evidence is sufficient to establish the presence of current mental disabilities other than the service-connected anxiety disorder, which are related to the Veteran’s claimed in-service stressors including fear of hostile military activity and mortar attacks. The Veteran’s treatment records also indicate the Veteran’s mental disability is manifested by a depressed mood, which the Board finds cannot be clearly distinguished from manifestations of the trauma-related mental disabilities based on the evidence of record. See, e.g. October 2016 Mental Health note from West Haven VAMC. The Board further notes the Veteran’s service treatment records support his contention that he was treated for a mortar wound to his right leg sustained during service, which is currently a service-connected disability. See Veteran’s January 2012 Statement in Support of Claim; June 1969 entries in the Veteran’s service treatment records. Considering this evidence, the Board affords great probative weight to the VA examiners’ positive nexus opinions relating mortar exposure to his current disabilities as they are supported by the evidence of record to include the Veteran’s competent and credible lay statements in the context of his service record. The Board finds no compelling evidence weighing against a finding of service connection for these disabilities based on the totality of the evidence. Accordingly, the Board finds that entitlement to service connection for an acquired psychiatric disorder other than an anxiety disorder to include PTSD, a trauma and stressor related disorder, and associated depression must be granted. Additionally, an October 2016 VA GERD examiner indicated that the Veteran’s GERD is caused and aggravated by his service-connected mental disabilities. The same examiner also indicated that GERD has caused and aggravated the Veteran’s hemorrhoids. The Board finds these opinions to be supported by adequate rationale based on a competent examination of the Veteran in the context of his treatment records, and the Board affords them great probative value. Accordingly, entitlement to service connection for GERD and hemorrhoids secondary to service-connected disabilities is also granted. REASONS FOR REMAND Since the last adjudication of these matters by the AOJ in the February 2018 Supplemental Statement of the Case, VA obtained additional VA treatment records pertinent to the claims on appeal including records from Lecanto VA Clinic, Jacksonville VA Clinic, Gainesville VAMC, and The Villages VA Clinic. The records indicate the Veteran continues to see at least one private doctor in addition to his VA doctors. On a May 2018 Supplemental Claim form, the Veteran indicated he has additional private treatment records, but additional private treatment records have not been associated with the Veteran’s claims file. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records before readjudicating the claims. In July 2015, the Board remanded this case in part to obtain an adequate VA examination of the Veteran’s heart. The VA heart examiner was charged with assessing whether the Veteran suffers from ischemic heart disease (e.g. atherosclerotic cardiovascular disease including coronary artery disease) or another heart disability related to the Veteran’s military service in Vietnam. While the October 2016 VA examiner identified several heart disabilities and offered negative nexus opinions, the Board finds the opinions do not adequately address pertinent evidence currently of record. While the examiner opined the Veteran had peripheral vascular disease and did not have a condition meeting the definition of ischemic heart disease, recent VA treatment records show the Veteran has an enlarged main pulmonary artery suggestive of pulmonary hypertension as well as mild coronary calcifications. See, e.g. February 2017 Addendum to January 2017 Cardiology Consult notes from Gainesville VAMC. On remand, the AOJ should obtain an addendum opinion from the VA examiner on whether such findings indicate it is at least as likely as not that the Veteran has ischemic heart disease. The AOJ should also ask the examiner to identify an etiology for the peripheral vascular disease to the extent possible. The July 2015 Board remand order also instructed the AOJ to broadly assess whether the Veteran had a gastroesophageal or gastrointestinal disorder related to his military service, caused by a service-connected disability, or aggravated by a service-connected disability. The Board noted diagnoses of GERD, polyps, and internal hemorrhoids in the record. While the examinations obtained by the AOJ address GERD and hemorrhoids, they do not include an adequate discussion of polyps. Additionally, the new records received from Gainesville VAMC indicate the Veteran underwent a colonoscopy with a private treatment provider in 2016, and the private colonoscopy records have not been obtained to date. See October 2017 Primary Care Note from Gainesville VAMC. Accordingly, the AOJ should make reasonable attempts to obtain the outstanding records with the assistance of the Veteran has his representative before obtaining an addendum opinion regarding polyps. The Board’s July 2015 remand order also called for further examination of flare-ups on the Veteran’s disability picture for his lumbar spine. An October 2016 VA lumbar spine examination revealed a worsened disability picture for the lumbar spine to include bilateral radiculopathy of the lower extremities. In an April 2017 rating decision, the AOJ increased the Veteran’s disability rating for the lumbar spine from 10 percent to 20 percent effective on the date of the examination and assigned additional ratings of 10 percent for radiculopathy of the lower extremities as of that date. While the October 2016 VA lumbar spine examination was useful in establishing that the Veteran’s disability picture for the lumbar spine has worsened, the VA examiner indicated there is insufficient evidence or objective exam findings that would provide a reliable prediction of decreased functional ability during flare-ups or use repeatedly over a period of time. The examiner opined that based on the available evidence and exam findings, it is not possible (without resorting to speculation) to predict within a reasonable degree of medical certainty a potential loss of range of motion manifested as a consequence of a flare or exacerbation outside or clinical setting. However, since the examination, the Board received new VA treatment records documenting treatment for back pain, which may aid the examiner in providing a more definitive opinion regarding flare-ups. On remand, the AOJ should obtain an addendum opinion on whether the current evidence or any additional evidence would allow the examiner to adequately assess the Veteran’s limitations due to flare-ups. The Veteran’s claim for entitlement to a higher disability rating for anxiety is intertwined with the rating of his other service-connected mental disabilities by the AOJ following the granting of service connection by this decision. The Veteran’s claim for TDIU is intertwined with the other issues remanded. Accordingly, these issues should be readjudicated together after all other development is complete. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records to include records of a private colonoscopy and records from Dr. B, an orthopedist. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all identified relevant outstanding records with the Veteran’s claim’s file, the AOJ should afford the Veteran a new VA examination of his heart in the context of his updated treatment records and current disability picture. The AOJ should provide the VA heart examiner with a complete copy of the claims file to include this remand order. The AOJ should ask the examiner to follow these directives: a) The VA heart examiner should identify all current disabilities of the Veteran’s heart. The examiner’s attention is directed to treatment records from Gainesville VAMC from February and March 2017 showing mild coronary calcifications and indications of pulmonary hypertension. The examiner should opine whether the evidence shows it is at least as likely as not (a 50 percent or greater probability) that the Veteran suffers from ischemic heart disease (e.g. atherosclerotic cardiovascular disease including coronary artery disease). b) The VA examiner should opine whether it is at least as likely as not that each identified heart disability is related to the Veteran’s military service to include episodes of dizziness and passing out and exposure to herbicides. To the extent possible, the VA examiner should identify an etiology for the Veteran’s peripheral vascular disease as well. c) If it is not possible to provide an opinion without resorting to 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). 3. After associating all identified relevant outstanding records with the Veteran’s claim’s file, the AOJ should obtain an addendum opinion from an appropriate VA examiner to determine whether the Veteran has polyps related to his military service. The AOJ should provide the VA polyps examiner with a complete copy of the claims file to include this remand order. The AOJ should ask the examiner to follow these directives: a) The VA polyps examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran suffers from polyps that were incurred in or otherwise caused by his military service. b) The VA polyps examiner should opine whether any polyps were at least as likely as not permanently worsened beyond their normal progression (aggravated) by the Veteran’s service-connected disabilities to include mental disabilities (e.g. anxiety disorders), GERD, and hemorrhoids. c) If it is not possible to provide an opinion without resorting to 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). 4. The AOJ should also schedule the Veteran for an examination of the current severity of service-connected lumbar spine disability. The examiner must 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 the lumbar spine disability (including associated bilateral radiculopathy) alone and discuss the effect of the Veteran’s disabilities 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). 5. After completing the above actions and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel