Citation Nr: 20034598 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 13-16 237 DATE: May 18, 2020 REMANDED Entitlement to an initial compensable rating for venous insufficiency is remanded. Entitlement to service connection for prostatitis is remanded. Entitlement to service connection for Barrett’s Esophagus, also claimed as a stomach condition, is remanded. Entitlement to service connection for a bladder condition is remanded. Entitlement to a total disability rating based upon unemployability (TDIU) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from April 1971 to September 1974. In March 2016, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. The Veteran’s claim was most recently before the Board of Veterans’ Appeals (Board) in July 2016 wherein the Veteran’s claims were remanded to agency of original jurisdiction (AOJ) for additional development. As discussed below, the examinations were either inadequate or the Board’s instructions were not followed; thus, an additional remand is required for the issues on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). REASONS FOR REMAND 1. Entitlement to an initial compensable rating for venous insufficiency is remanded. The Veteran asserts that he is entitled to a higher initial rating for his venous insufficiency condition. Further, the Veteran’s representative asserts that rather than an analogous rating under Diagnostic Code 7114 for “arteriosclerosis obliterans”, the Veteran should be rated under Diagnostic Code 7113 to evaluate whether the Veteran’s edema limits his functional mobility. His claim was remanded to determine the Veteran’s current level of impairment related to his venous insufficiency and to determine the basis for his reports of leg pain. The Veteran attended a March 2017 examination; however, the Board finds it to be inadequate. First, there is no discussion of the Veteran’s current symptomology. Second, there is no discussion of whether the Veteran’s leg pain is related to venous insufficiency or another biomechanical explanation. Thus, a remand for an additional examination is required. 2. Entitlement to service connection for prostatitis is remanded. The Veteran asserts that he has had a prostate condition since service. While the Veteran’s claim was pending on appeal, he was granted service connection for prostate cancer on the basis that he was exposed to herbicide agents during his service in Vietnam. See 38 C.F.R. §§ 3.309. Other prostate disorders are not on the list of presumptive disabilities; thus, service connection cannot be granted on a presumptive basis under that theory of entitlement. Turning to the prior remand, the Veteran’s claim was remanded to identify any prostate disability(ies) that had been present at any point during the appeal period (dating to approximately March 2009), to include LUTS, BPH, or prostatitis and to provide an opinion on its relation to the Veteran’s service. The Board identified certain service treatment records (STRs) that the examiner should consider in their review, as well as the Veteran’s lay history of symptoms. The examiner considered the STRs but did not consider the Veteran’s lay statements in the formulation of their opinion. Further, the Board does not find the explanation of the relationship of the Veteran’s current prostate conditions to service to be adequate. Thus, a remand is required for an addendum opinion. 3. Entitlement to service connection for a bladder condition is remanded. The Veteran asserts that he has a bladder condition (related to a prostate condition) for which he must use the bathroom multiple times per day. While the Veteran’s claim was pending on appeal, he was granted service connection for prostate cancer for which he was assigned a 100 percent rating. In the Veteran’s March 2017 VA examination, the examiner found urinary frequency. Notably, under the rating code, the total rating is assigned when there is active malignancy. However, when the Veteran is in remission, his prostate cancer will be rated based on voiding dysfunction or renal dysfunction, whichever is the more prominent disability. Therefore, service connection is in effect for voiding dysfunction due to his prostate cancer. The question becomes whether he has a separate bladder condition, during the appeal which began with the March 2009 claim, and potentially prior to December 2016 when service connection was established for prostate cancer. Turning to the previous remand, the examiner was instructed to identify any diagnosis related to the Veteran’s bladder and to determine whether a nexus exists to service or if the bladder condition is related to any service-connected condition. The March 2017 examiner identified only hematuria as a bladder condition, citing a 2003 medical record. Thus, the Board finds that the examiner did not adequately consider the Veteran’s bladder conditions from his date of application, to include urinary frequency, and could not therefore provide adequate nexus opinions relating the condition to service. Thus, an addendum opinion is required. 4. Entitlement to service connection for Barrett’s Esophagus, also claimed as a stomach condition, is remanded. The Veteran asserts that due to the medication he took during service, he developed esophageal disorders, to include acid reflux, since service. Further, he contends that his Barrett’s Esophagus condition is related to his service-connected venous insufficiency condition because he took medication for the pain related to his condition. The Veteran’s claim was remanded for a medical opinion on whether the Veteran had a condition during service or whether it was related to a service-connected disability. The March 2017 examiner did not find a connection because “the Veteran denied ever having a peptic ulcer.” The Board finds this to be inadequate because the examiner did not consider the Veteran’s current Barrett’s Esophagus condition. Further, as to whether it is related to the Veteran’s service-connected venous insufficiency condition, the examiner stated “[the Veteran] is 0 percent service-connected for what he states is.” The Veteran’s level of disability is not material to whether another disability is related to it. Thus, an addendum opinion is required. 5. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues above could significantly impact a decision on the issue of entitlement to a TDIU the issues are inextricably intertwined. Thus, a remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the current severity of his service-connected venous insufficiency disability. The examiner must provide information addressing the functional impairment caused by the Veteran’s venous insufficiency. The examiner must also address, to the extent possible, whether any of the Veteran’s reported leg pain and edema is attributable to his service-connected venous insufficiency. 2. Obtain an addendum opinion with respect to the Veteran’s prostate and bladder disability claims. An in-person examination is not necessary unless deemed necessary and appropriate by the clinician. The clinician must provide an opinion addressing the following: a. Identify any prostate and bladder disabilities that have been present at any point during the appeal period (dating to approximately March 2009). b. Whether it is as likely as not (i.e. probability of 50 percent or greater) that any prostate disability present at any point during the appeal period (dating to approximately March 2009), to include LUTS, BPH, or prostatitis had its onset during active service or is related to any in-service disease, event, or injury? While review of the entire claims folder is required, attention is invited to the STRs that documented in-service treatment and symptoms related to prostatitis. See document labeled STR-Medical, received May 21, 2010, pages 12-14 of 73. Attention is also invited to the Veteran’s contention that he has had a prostate disability and symptoms since service (which is discussed in the remand accompanying the examination request). The clinician should address whether the Veteran’s current prostate condition is a) the same as the Veteran’s prostate condition during service or b) a progression of the prostate condition during service. Lack of treatment between service and the Veteran’s first treatment for a prostate condition cannot alone be the basis for a negative opinion. c. If a separate bladder disability has been identified, whether it is as likely as not (i.e. probability of 50 percent or greater) that any bladder disability present at any point during the appeal period (dating to approximately March 2009), had its onset during active service or is related to any in-service disease, event, or injury? The clinician should note that while the Veteran is service-connected for prostate cancer for which he has urinary frequency symptoms, he complained of urinary frequency prior to his diagnosis of prostate cancer. While review of the entire claims folder is required, attention is invited to the STRS that documented in-service treatment and symptoms related to prostatitis. See document labeled STR-Medical, received May 21, 2010, pages 12-14 of 73. Further attention is invited to the Veteran’s contention that he has a bladder disability that is a result of medication that he took in-service related to his prostate. In this regard, attention is invited to the previously mentioned STRs that referenced prostatitis and that noted a prescription of an antibiotic (tetracycline) and the Veteran’s testimony at the March 2016 Board hearing in which he referenced taking antibiotics for about six months and stated that “[t]hey said the reason my bladder was bad, the reason it’s bad is because all the medicine I took.” Lack of treatment between service and the Veteran’s first treatment for a prostate condition cannot alone be the basis for a negative opinion. d. If the Veteran’s prostate disability (other than prostate cancer) is found to be service-connected, the clinician should address whether it at least as likely as not that the bladder condition is caused or aggravated by the service-connected prostate condition. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. 3. Obtain an addendum opinion with respect to the Veteran’s stomach disability claims. An in-person examination is not necessary unless deemed necessary and appropriate by the clinician. The clinician must provide an opinion addressing the following: a. Identify any stomach disabilities that have been present at any point during the appeal period (dating to approximately March 2009), to include Barrett’s esophagus. b. Whether it is as likely as not (i.e. probability of 50 percent or greater) that any stomach disability present at any point during the appeal period (dating to approximately March 2009), is related to any in-service disease, event, or injury? While review of the entire claims folder is required, attention is invited to the Veteran’s contention that he has a stomach disability that is the result of medication that he took in-service related to his prostate. See document labeled STR-Medical, received May 21, 2010, pages 12-14 of 73. Further, attention is invited to the Veteran’s testimony that he took antibiotics for about six months, that after he stopped taking them he has had problems ever since, and that he recalls hearing that his stomach problems are related to taking the medication. c. Whether it is as likely as not (i.e. probability of 50 percent or greater) that any stomach disability present at any point during the appeal period (dating to approximately March 2009) is caused or aggravated by the service-connected venous insufficiency condition? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. Attention is specifically invited to articles cited by the Veteran’s representative in the April 2020 brief: 1. See Regina Wheeler et. al., Is Medication causing your Heartburn, available at https://www.everydayhealth.com/digestive-health/is-medication-causing-your-heartburn.aspx (July 2010). 2. See Robin Madell & Graham Rogers, MD, Barrett’s Esophagus and Acid Reflux, Healthline, available at https://www.healthline.com/health/gerd/barretts-esophagus#risk-factors (May 2017). 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.