Citation Nr: 18158562 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 05-17 549A DATE: December 17, 2018 REMANDED Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD and respiratory disorders, is remanded. Entitlement to service connection for a gastrointestinal disorder, claimed as gastroesophageal reflux disease (GERD) and chronic gastritis, to include as secondary to PTSD is remanded. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to a lumbar spine disability, is remanded. Entitlement to service connection for a bilateral foot disability, to include as secondary to a lumbar spine disability, is remanded. Entitlement to an initial compensable disability rating for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran had active service from February 1967 to April 1972 and October 1990 to June 1991. He also had periods of active duty for training and inactive duty for training with the National Guard. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2009, the Veteran testified at a Board video conference hearing before a Veteran’s Law Judge (VLJ) who has since retired from the Board. The Veteran was offered another hearing before a different VLJ who would ultimately decide this appeal. The Veteran responded that he wanted a new hearing with a different VLJ. In June 2012, the Veteran presented testimony at a Board video conference hearing before the undersigned Acting VLJ. Transcripts are of record. The Board issued a decision in July 2013 that, in pertinent part, reopened the claim for service connection for a bilateral foot disorder and remanded it, as well as the claims for service connection for GERD, hypertension, a bilateral eye disorder, obstructive sleep apnea, and radiculopathy of the right lower extremity, for additional development. In May 2016, the Board denied the claims for service connection for a bilateral eye disorder, radiculopathy of the right lower extremity, obstructive sleep apnea, and hypertension; the claim for an initial compensable rating for erectile dysfunction was remanded for the issuance of a statement of the case (SOC). The Veteran appealed the Board’s May 2016 denial of the claims for service connection for a bilateral eye disorder, radiculopathy of the right lower extremity, obstructive sleep apnea, and hypertension to the United States Court of Appeals for Veterans Claims (Court). By August 2017 Order, the Court vacated the portion of the Board’s May 2016 decision that denied those claims and remanded them to the Board for compliance with instructions contained in a Joint Motion. In September 2017, the Board remanded the claims for service connection for GERD and a bilateral foot disorder and the claim for an initial compensable rating for erectile dysfunction. The claims for service connection for a bilateral eye disorder, radiculopathy of the right lower extremity, obstructive sleep apnea, and hypertension were remanded by the Board in November 2017. Regarding the issue of entitlement to an initial compensable rating for erectile dysfunction, a SOC was issued in January 2018. While a timely substantive appeal is not of record, since a July 2018 Board decision on separate matters indicated that the appeal would be the subject of a later Board decision, the Board will accept jurisdiction of the claim. See Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board acknowledges that the issues of entitlement to a total disability rating based on individual unemployability (TDIU), an increased rating for asthma, and service connection for a left knee disability, chronic kidney disease, chronic obstructive pulmonary disease, and diverticulitis have been perfected, but not yet certified to the Board. The Board’s review of the file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on these issues. As such, the Board will not accept jurisdiction over them at this time; they will be the subject of a subsequent Board decision if otherwise in order. 1. Entitlement to service connection for a bilateral eye disability is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD and respiratory disorders, is remanded. 4. Entitlement to service connection for a gastrointestinal disorder, claimed as GERD and chronic gastritis, to include as secondary to PTSD is remanded. 5. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. 6. Entitlement to service connection for a bilateral foot disability is remanded. 7. Entitlement to an initial compensable disability rating for erectile dysfunction is remanded. The evidence indicates there may be outstanding relevant VA treatment records. A July 2, 2018, VA treatment record indicates that the Veteran was to return for follow up appointment on November 7, 2018, and November 15, 2018. VA treatment records dated after August 15, 2018, have not been associated with the claims file. A remand to obtain the records is required. Regarding the Veteran’s hypertension claim, an August 2013 VA opinion does not address the Veteran’s service treatment records noting elevated blood pressure readings. Additionally, the Board notes that the Veteran served in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents. A National Academy of Sciences (NAS) article concluded that there is limited or suggestive evidence of an association between Agent Orange exposure and hypertension. See Nat’l Acad. of Sci., Inst. Of Med., Veterans & Agent Orange: Update 2010 (2011). Accordingly, an addendum opinion is warranted. Regarding the Veteran’s obstructive sleep apnea claim, in an October 2018 correspondence, the Veteran’s representative asserted that the Veteran’s obstructive sleep apnea was secondary to his service-connected asthma with bronchitis. Remand for an addendum opinion is needed to address this newly raised theory of secondary service connection. Regarding the Veteran’s GERD claim, in accordance with the prior remand directives, an addendum opinion was obtained in January 2018. The examiner opined that the Veteran’s GERD and gastritis were less likely than not related to the Veteran’s herbicide agent exposure because those conditions were not on the list of VA disorders that are presumptively accepted to be caused by herbicide agent exposure. As the examiner’s sole rationale was that the conditions were not presumptively related to herbicide agent exposure, an addendum opinion is required. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Regarding the Veteran’s radiculopathy claim, in accordance with the prior remand directives, the Veteran was provided a peripheral nerves examination in December 2017. However, in finding that the Veteran was not diagnosed with radiculopathy, the examiner did not acknowledge or address the VA treatment records from August 2012 and January 2013 indicating a clinical impression of “suspected chronic L5, S1 radiculopathy, improved.” Additionally, the examiner relied on the January 2010 electromyography (EMG) findings and did not conduct a new EMG study. Accordingly, there has not been substantial compliance with the prior remand directives and remand for another VA examination is required. Regarding the Veteran’s bilateral foot claim, in accordance with the prior remand directives, the Veteran was afforded a VA foot conditions examination in January2018. The examination report noted a diagnosis of pes planus. The examiner opined that the Veteran’s pes planus was less likely than not related to service as it pre-existed the Veteran’s first and second periods of active service. The examiner went on to opine that the pre-existing pes planus was not exacerbated beyond the national progression by service. Initially, the Board notes that the examiner did not provide any rationale in support of the opinions. Additionally, the opinion is not fully responsive to the questions posed in the May 2016 remand, which requested the examiner to address documented diagnoses of metatarsalgia, plantar fasciitis, and osteoarthritis as well as the Veteran’s reports of receiving orthotics during his second period of service. Accordingly, there has not been substantial compliance and a remand for an addendum opinion is required. Additionally, in an October 2018 correspondence, the Veteran’s representative asserted that the Veteran’s bilateral foot disabilities were secondary to his service-connected lumbar spine disabilities. Accordingly, the addendum opinion should also address this new raised theory of entitlement. Finally, regarding the Veteran’s claim for an increased rating for erectile dysfunction, his last VA examination was in August 2013. Given the passage of time, the Veteran’s assertion that the prior examination did not included a physical examination to determine whether he had a penile deformity, and the fact that the Board must remand the claim for other development, on remand the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his erectile dysfunction. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. 2. Obtain updated VA treatment records dated since August 15, 2018. 3. After the above is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's hypertension. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that hypertension had its onset during service or is otherwise related to service, to include the Veteran’s elevated blood pressure readings during service and his presumed exposure to herbicide agents. The clinician is advised that his or her rationale cannot rely solely on the fact that VA has not included hypertension in the list of diseases presumptively related to exposure to herbicide agents. A complete rationale should be provided for all opinions and conclusions expressed. 4. Forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's obstructive sleep apnea. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the obstructive sleep apnea was caused by the service-connected asthma with bronchitis? (b.) If not caused by the service-connected disability, is it at least as likely as not that the Veteran's obstructive sleep apnea is worsened beyond natural progression (aggravated) by his service-connected asthma with bronchitis? If the clinician finds that the Veteran's obstructive sleep apnea was aggravated by his service-connected asthma with bronchitis, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the obstructive sleep apnea. A complete rationale should be provided for all opinions and conclusions expressed. 5. Forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's gastrointestinal disorder, diagnosed as GERD and chronic gastritis. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that any gastrointestinal disorder had its onset during service or is otherwise related to service, to include the Veteran’s presumed exposure to herbicide agents. The clinician is advised that his or her rationale cannot rely solely on the fact that VA has not included GERD or gastritis in the list of diseases presumptively related to exposure to herbicide agents. A complete rationale should be provided for all opinions and conclusions expressed. 6. Forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's bilateral foot disorder. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that any bilateral foot disorder, to include the diagnoses of pes planus, plantar fasciitis, plantar fibromatosis, metatarsalgia with suspected neuroma, heel spurs, and degenerative joint disease of the first metatarsals noted in treatment records, had its onset during service or is otherwise related to service. (b.) Whether there is clear and unmistakable evidence that any of the identified foot disorders existed before the Veteran’s entry into either period of military service (first period from February 1967 to April 1972 and second period from October 1990 to June 1991) and, if so, whether there is clear and unmistakable evidence that any of the identified disorders that pre-existed service were not aggravated by either period of military service (first period from February 1967 to April 1972 and second period from October 1990 to June 1991). (c.) Whether it is at least as likely as not (50 percent probability or greater) that any bilateral foot disorder, to include the diagnoses of pes planus, plantar fasciitis, plantar fibromatosis, metatarsalgia with suspected neuroma, heel spurs, and degenerative joint disease of the first metatarsals noted in treatment records, was caused by the service-connected lumbar spine disability? (d.) If not caused by the service-connected lumbar spine disability, is it at least as likely as not that any bilateral foot disorder, to include the diagnoses of pes planus, plantar fasciitis, plantar fibromatosis, metatarsalgia with suspected neuroma, heel spurs, and degenerative joint disease of the first metatarsals noted in treatment records, is worsened beyond natural progression (aggravated) by his service-connected lumbar spine disability? If the clinician finds that any bilateral foot disorder was aggravated by his service-connected lumbar spine disability, the clinician should attempt to quantify the level of aggravation beyond the baseline level the bilateral foot disorder. The clinician must consider, and comment on the following: the documented complaints of foot pain in service in 1991 with diagnosis of metatarsalgia; the findings of the VA examiner in December 1991; and the Veteran’s statements of having flat feet all his life and receiving orthotics during his second period of service. A complete rationale should be provided for all opinions and conclusions expressed. 7. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to clarify whether he has lumbar radiculopathy of the right lower extremity. The claims file must be reviewed by the examiner in conjunction with the examination. Any indicated studies, including an EMG, are to be performed. If the examiner determines that an EMG is not necessary to render a conclusive diagnosis, then the examiner should explain why. The examiner must provide a complete rationale for all opinions and conclusions reached based on the examiner's clinical experience, medical expertise, and established medical principles, and with discussion of the VA treatment records dated in August 2012 and January 2013 that contain a clinical impression of “suspected chronic L5, S1 radiculopathy, improved.” 8. Schedule the Veteran for a VA examination to determine the current severity of his erectile dysfunction. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the erectile dysfunction should be reported. D. VAN WAMBEKE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson