Citation Nr: 20042391 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 18-44 908 DATE: June 23, 2020 ORDER Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for degenerative arthritis of the bilateral upper extremities, to include bilateral hands and fingers, is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and bronchial asthma, is remanded. Entitlement to service connection for a seizure disability is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for essential tremors (clamed as Parkinson’s disease) is remanded. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to a separate compensable rating for erectile dysfunction is remanded. Entitlement to an initial rating in excess of 20 percent for diabetic peripheral neuropathy of the right lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent for diabetic peripheral neuropathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Hypertension is due to the Veteran’s in-service exposure to herbicide agents during service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1969 to April 1971 in the United States Marine Corps (USMC), to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection - Hypertension The evidence indicates that the Veteran served in the Republic of Vietnam during the Vietnam era. Therefore, it is presumed that he was exposed to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii). The evidence also indicates that he has been diagnosed with hypertension. Although hypertension is not presumptively related to herbicide exposure, 38 C.F.R. § 3.309(e), the National Academy of Sciences (NAS) recently determined that there is “sufficient” epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. In this case, the Veteran is presumed to have been exposed to herbicides while serving in the Republic of Vietnam, and he has a current diagnosis of hypertension. There is no competent VA medical opinion of record against the claim. Rather, there is sufficient evidence to conclude that there is a positive association between hypertension and herbicide exposure. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for hypertension is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for hypertension is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Review of the claims file indicates that the Veteran reported that he served in the USMC Reserve and the Army National Guard; however, those records have not been associated with the claims file. Therefore, a remand is required so that the Agency of Original Jurisdiction (AOJ) can obtain those records and associate them with the claims file. In addition, the claims file includes VA treatment records dated from August 2007 to May 2013, and from February 2015 to September 2018, but does not include records dated from May 2013 to February 2015. Therefore, a remand is necessary to obtain those records. Regarding service connection for a cervical spine disability, the Veteran’s service treatment records indicated that he complained of a sore neck in July 1970. The evidence also indicates that he has a current cervical spine disability. In addition, in a letter received in June2018, a VA physician, Dr. M.J., opined that osteoarthritis of the spine was at least as likely as not a direct result of military service. The physician, however, did not provide any rationale for her opinion. Therefore, the Board finds that a remand is necessary for a VA examination to determine the nature and etiology of the Veteran’s cervical spine disability. Regarding the Veteran’s claims for bilateral upper extremity degenerative arthritis, including the hands and fingers, and for a right knee disability, in a letter received on June 2018, a VA physician, Dr. M.J., opined that osteoarthritis of the hands and knees were at least as likely as not a direct result of military service. The physician, however, did not provide any rationale for her opinion. Therefore, the Board finds that a remand is necessary for VA examinations to determine the nature and etiology of the claimed disabilities. Regarding the Veteran’s claim for a respiratory disability, a June 1970 service treatment record indicated that he complained of chest congestion and shortness of breath. A chest X-ray showed findings compatible with bronchitis or broncho-pneumonia. The assessment was asthmatic bronchitis. Post-service treatment records show diagnoses of COPD, bronchial asthma, and asthmatic bronchitis. A December 2007 private treatment record indicated that the Veteran had a history of smoking one pack of tobacco cigarettes per day for 40 years. In March 2010, it was noted that his COPD and bronchial asthma were a result of chronic tobacco use. In February 2013, a VA examiner opined that the Veteran’s COPD was a progression of bronchial asthma. In a June 2018, a VA physician opined that COPD was at least as likely as not a direct result of military service; however, she provided no rationale for the opinion. Based on the foregoing, the Board finds that a remand is necessary for an additional VA examination to clarify the nature and etiology of the Veteran’s claimed respiratory disability. Regarding the Veteran’s claim for service connection for a seizure disability, in a June 2018 letter, a VA physician, Dr. M.J., opined that his seizure disorder was at least as likely as not a direct result of his military service; however, she did not provide a rationale for the opinion. Therefore, the Board finds that a remand is necessary for a VA examination to address the nature and etiology of the Veteran’s seizure disability. Regarding the Veteran’s claim for service connection for a psychiatric disability, to include PTSD, a VA examination was conducted in May 2012. The VA examiner diagnosed the Veteran with mood disorder but did not provide an opinion as to whether the disability was incurred in or related to service. In a June 2018 letter, a VA physician, Dr. M.J., opined that the Veteran’s mood disorder/PTSD was at least as likely as not a direct result of military service; however, she did not provide any rationale for the opinion. For these reasons, the Board finds that a remand is necessary for an additional VA examination to clarify the nature and etiology of the Veteran’s psychiatric disability. Regarding the Veteran’s claim for service connection for Parkinson’s disease, the evidence indicates that he has been diagnosed with essential tremors and that his symptoms are not consistent with Parkinson’s disease. In a June 2018 letter, a VA physician, Dr. M.J., opined that the Veteran’s tremors were at least as likely as not a direct result of his military service; however, she did not provide any rationale for the opinion. Therefore, the Board finds that a remand is necessary for a VA examination to address the nature and etiology of the Veteran’s essential tremors. Regarding the claims for increased ratings diabetes mellitus, erectile dysfunction, and diabetic neuropathy of the right and left lower extremities, the Board finds that as these claims are being remanded to obtain outstanding records, additional VA examinations should also be obtained to ascertain the current severity of those service-connected disabilities. Finally, the Veteran has also raised the issue of entitlement to TDIU in connection with his claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the AOJ should adjudicate this matter in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). The matters are REMANDED for the following action: 1. The AOJ should obtain the Veteran’s military personnel and service treatment records from his reported service in the Army National Guard and USMC Reserve. 2. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file, including VA treatment records dated from May 2013 to February 2015, and dated from September 2018 to the present. 3. Then, schedule the Veteran for a VA examination with an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s cervical spine disability. The claims file must be made available to, and reviewed by the examiner. Any indicated test or studies should be provided. Based on the examination results and a review of the record, including any additionally received treatment records, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present cervical spine disability was incurred in service or is otherwise etiologically related to service, and whether any arthritis manifested within one year of separation from service. The examiner should address the Veteran’s complaints of a sore neck during service in July 1970 and the June 2018 opinion by a VA physician. A rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination with an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s claimed degenerative arthritis of the bilateral upper extremities, to include the hands and fingers. The claims file must be made available to, and reviewed by the examiner. Any indicated test or studies should be provided. Based on the examination results and a review of the record, including any additionally received treatment records, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present degenerative arthritis of the upper extremities, to include the hands and fingers, was incurred in service, manifested within one year of separation from service, or is otherwise etiologically related to service. The examiner should address the June 2018 opinion by a VA physician. A rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination with an examiner with sufficient expertise to determine the nature and etiology of his claimed right knee disability. The claims file must be made available to, and reviewed by the examiner. Any indicated test or studies should be provided. Based on the examination results and a review of the record, including any additionally received treatment records, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present right knee disability was incurred in service or is otherwise etiologically related to service, and whether any arthritis manifested within one year of separation from service. The examiner should address the June 2018 opinion by a VA physician. A rationale for all opinions expressed must be provided. 6. Then, schedule the Veteran for a VA examination with an examiner with sufficient expertise to determine the nature and etiology of his respiratory disability. The claims file must be made available to, and reviewed by the examiner. Any indicated test or studies should be provided. Based on the examination results and a review of the record, including any additionally received treatment records, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present respiratory disability was incurred in service or is otherwise etiologically related to service. The examiner should address the following: 1) the June 1970 service treatment record showing an assessment of asthmatic bronchitis; 2) the March 2010 private treatment record indicating that COPD and bronchial asthma were a result of chronic tobacco use; 3) the February 2013 VA examiner’s opinion that COPD was a progression of bronchial asthma; and 4) the June 2018 opinion by a VA physician. A rationale for all opinions expressed must be provided. 7. Then, schedule the Veteran for a VA examination with an examiner with sufficient expertise to determine the nature and etiology of his seizure disability. The claims file must be made available to, and reviewed by the examiner. Any indicated test or studies should be provided. Based on the examination results and a review of the record, including any additionally received treatment records, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s seizure disability was incurred in service or is otherwise etiologically related to service. The examiner should address the June 2018 opinion by a VA physician. A rationale for all opinions expressed must be provided. 8. Then, schedule the Veteran for a VA examination with an examiner with sufficient expertise to determine the nature and etiology of any psychiatric disability that may be present. The claims file must be made available to, and reviewed by the examiner. Any indicated test or studies should be provided. Based on the examination results and a review of the record, including any additionally received treatment records, the examiner should identify any psychiatric disorders that are present. The examiner should also address prior diagnoses of record, including PTSD, major depressive disorder, and mood disorder. For each diagnosis identified other than PTSD, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the psychiatric disability manifested during or is otherwise related to active service. The examiner should address the June 2018 opinion by a VA physician. If a diagnosis PTSD is deemed appropriate, the examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the disorder is causally or etiologically related to an in-service stressor. A rationale for all opinions expressed must be provided. 9. Then, schedule the Veteran for a VA examination with an examiner with sufficient expertise to determine the nature and etiology of his essential tremors. The claims file must be made available to, and reviewed by the examiner. Any indicated test or studies should be provided. Based on the examination results and a review of the record, including any additionally received treatment records, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s essential tremors were incurred in service or are otherwise etiologically related to service. The examiner should address the June 2018 opinion by a VA physician. A rationale for all opinions expressed must be provided. 10. Then, schedule the Veteran for appropriate VA examinations to determine the current level of severity of all impairment resulting from his service-connected diabetes mellitus, erectile dysfunction, and diabetic neuropathy of the right and left lower extremities. All indicated tests should be performed and all findings should be reported in detail. 11. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 12. Then, readjudicate the issues remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mishalanie 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.