Citation Nr: 18159789 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-48 311 DATE: December 20, 2018 ORDER Entitlement to service connection for hypertensive heart disease, due to lower extremity peripheral arterial occlusive disease, is granted. REMANDED The issue of entitlement to service connection for a right lower extremity neurological disability, to include radiculopathy and diabetic peripheral neuropathy, is remanded. The issue of entitlement to service connection for a left lower extremity neurological disability, to include radiculopathy and diabetic peripheral neuropathy, is remanded. The issue of entitlement to an initial rating in excess of 20 percent for a thoracolumbar spine disability is remanded. The issue of entitlement to an initial compensable rating for right lower extremity peripheral arterial occlusive disease is remanded. The issue of entitlement to an initial compensable rating for left lower extremity peripheral arterial occlusive disease is remanded. The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDING OF FACT Hypertensive heart disease is due to service-connected lower extremity peripheral arterial occlusive disease. CONCLUSION OF LAW The criteria for service connection for hypertensive heart disease, due to lower extremity peripheral arterial occlusive disease, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from April 1968 to June 1989. He served in the Republic of Vietnam. The Veteran appeared at an April 2018 hearing before the undersigned Veterans Law Judge at the Manila, the Republic of the Philippines, Regional Office. The hearing transcript is of record. At the Board of Veterans’ Appeals (Board) hearing, the issues of service connection for ischemic heart disease and an initial rating in excess of 20 percent for the service connected thoracolumbar spine disability were included in the issues presently on appeal. In November 2018, the Veteran submitted a Veterans Application for Increased Compensation Based on Unemployability, VA Form 21-8940. When entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue of entitlement to a TDIU is on appeal and will be addressed below. Service Connection for Ischemic Heart Disease The Veteran asserts that service connection for ischemic heart disease secondary to presumed herbicide agent exposure in the Republic of Vietnam. Service connection may be established for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a veteran was exposed to herbicide agents during active service, and ischemic heart disease, to include coronary artery disease, becomes manifest to a degree of 10 percent or more at any time after service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of that disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which that veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307 (a)(6)(iii). The Veteran served in the Republic of Vietnam. The report of a March 2015 Department of Veterans Affairs (VA) heart examination states that a contemporaneous chest X ray study found an atherosclerotic aorta and hypertensive heart disease which was found to be due to hypertension and atherosclerosis. The Veteran was also diagnosed with hypertension and atherosclerosis. That examiner found that atherosclerosis was not ischemic heart disease. The Board observes that service connection has previously been established for peripheral arterial occlusive disease of the lower extremities. That disability is a manifestation of atherosclerosis. The hypertensive heart disease was found to be the result of atherosclerosis. Therefore, service connection for hypertensive heart disease, due to lower extremity peripheral arterial occlusive disease, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issues of entitlement to service connection for a right and left lower extremity neurological; an initial rating in excess of 20 percent for a thoracolumbar spine disability; and initial compensable ratings for right and left lower extremity peripheral arterial occlusive disease are remanded. The Veteran asserts that service connection for right and left lower extremity radiculopathy is warranted secondary to the service connected thoracolumbar spine disability; and that service connection for right and left lower extremity diabetic peripheral neuropathy is warranted secondary to service connected diabetes mellitus. The Veteran also asserts that higher initial ratings are warranted for a service connected thoracolumbar spine disability and right and left lower extremity peripheral arterial occlusive disease as the service connected disabilities have increased in severity and are productive of significant physical and occupational impairment. At the April 2018 Board hearing, the Veteran testified that the service connected thoracolumbar spine disability had increased in severity and was productive of radiating pain into the lower extremities. Service connection may be established for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (a). Service connection shall be established on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disability has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for a thoracolumbar spine disability, diabetes mellitus, allergic rhinitis, right and left lower extremity peripheral arterial occlusive disease, right ear sensorineural hearing loss, and allergic dermatitis, urticaria, and tinea pedis. A December 2018 VA memorandum to the Social Security Administration (SSA) indicates that the Veteran had submitted a SSA claim and requested the Veteran’s SSA documentation for incorporation into the record. The Veteran’s SSA documentation has not yet been incorporated into the record. Documentation of the Veteran’s SSA award of disability benefits, if any, and the evidence considered by the SSA in granting or denying the Veteran’s claim is not of record. VA’s duty to assist the Veteran includes an obligation to obtain the records from the SSA. Masors v. Derwinski, 2 Vet. App. 181, 187 188 (1992). The Veteran was last provided VA examinations which addressed the service connected thoracolumbar spine disability and right and left lower extremity peripheral arterial occlusive disease in March 2015 and May 2015. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). Because of the Veteran’s contentions as to worsening spinal and lower extremity pain and the passage of over three years since the 2015 VA examinations, the Board finds that further VA evaluation is needed to determine the etiology of the claimed lower extremity neurological disabilities and the current severity of the service connected thoracolumbar spine disabilities and peripheral arterial occlusive disease. 2. The issue of entitlement to a TDIU is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. Because the claim for TDIU is inextricably intertwined with other claims being remanded, the issue of entitlement to TDIU must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any bilateral lower extremity neurological disabilities, a thoracolumbar spine disability, and bilateral lower extremity peripheral arterial occlusive disease. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Associate with the record any VA medical records not already of record of treatment of the Veteran including that provided after December 2018. 3. Contact the SSA and request documentation of the Veteran’s award of disability benefits or the denial of that claim and copies of all records developed in association with the decision. 4. Schedule the Veteran for a VA spine examination to assist in determining the current nature of any identified lower extremity neurological disabilities and any relationship of those disabilities to active service or a service connected disability and the current nature and severity of the service connected thoracolumbar spine disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all lower extremity neurological disabilities found. If no such disability is identified, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lower extremity neurologic disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lower extremity neurologic disability is due to the thoracolumbar spine disability, diabetes mellitus, and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified lower extremity neurologic disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by the thoracolumbar spine disability, diabetes mellitus, and the other service connected disabilities. (e) Provide ranges of motion for passive and active motion of the thoracolumbar spine. The examiner should state whether there is any additional loss of thoracolumbar spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (f) Indicate whether, and to what extent, the Veteran experiences functional loss of the thoracolumbar spine due to pain or any other symptoms during flare ups or with repeated use. (g) Note any incapacitating episodes associated with the thoracolumbar spine degenerative disc disease. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (h) Specifically address the impact of the thoracolumbar spine disabilities on the Veteran’s vocational pursuits. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service connected disabilities. 5. Schedule the Veteran for a VA vascular examination to determine the nature and severity of service connected bilateral lower extremity peripheral arterial occlusive disease. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should opine as to the impact of the right lower extremity and left lower extremity peripheral arterial occlusive disease on the Veteran’s vocational pursuits. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel