Citation Nr: 21000140 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-46 716 DATE: January 4, 2021 REMANDED Entitlement to a compensable evaluation for residuals of a right fifth finger injury with slight hypoalgesia is remanded. Entitlement to service connection for a chronic back disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diverticulitis is remanded. Entitlement to service connection for gastrointestinal bleeding is remanded. Entitlement to service connection for gastrointestinal polyps is remanded. Entitlement to service connection for gastrointestinal hemorrhoids is remanded. Entitlement to service connection for constipation is remanded. Entitlement to service connection for an enlarged prostate is remanded. Entitlement to service connection for urinary retention is remanded. Entitlement to service connection for anemia is remanded. Entitlement to service connection for high cholesterol is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a heart disorder, claimed as status post dual chamber pacemaker is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for hyperthyroidism is remanded. Entitlement to service connection for diabetic neuropathy of the bilateral upper extremities is remanded. Entitlement to service connection for diabetic neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for diabetic kidney disease, stage II is remanded. Entitlement to service connection for peripheral vascular disease of the bilateral lower extremities is remanded. Entitlement to service connection for peripheral vascular disease of the bilateral upper extremities is remanded. Entitlement to service connection for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1950 to June 1952. In an October 2018 decision, the Board of Veterans’ Appeals (Board) denied entitlement to service connection for: 1) a chronic back disability; 2) hypertension; 3) diverticulitis; 4) gastrointestinal bleeding; 5) gastrointestinal polyps; 6) gastrointestinal hemorrhoids; 7) constipation; 8) an enlarged prostate; 9) urinary retention; 10) anemia; 11) high cholesterol; and 12) entitlement to a compensable evaluation for residuals of a right fifth finger injury with slight hypoalgesia. The Board also remanded claims of entitlement to service connection for: 1) sleep apnea; 2) a heart disorder; 3) an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder; 4) diabetes mellitus; 5) hyperthyroidism; 6) diabetic neuropathy of the bilateral upper extremities; 7) diabetic neuropathy of the bilateral lower extremities; 8) diabetic kidney disease, stage II; 9) peripheral vascular disease of the bilateral lower extremities; 10) peripheral vascular disease of the bilateral upper extremities; and 11) erectile dysfunction. In September 2019, the Veteran appealed the portion of the Board’s October 2018 decision to the United States Court of Appeals for Veteran Claims (Court). In June 2020, the Court issued a Memorandum Decision to SET ASIDE the part of the Board’s October 2018 decision that addressed a chronic back disability, hypertension, diverticulitis, gastrointestinal bleeding, gastrointestinal polyps, gastrointestinal hemorrhoids, constipation, an enlarged prostate, urinary retention, anemia, high cholesterol, and residuals of a right finger injury with slight hypoalgesia and REMANDED the matter to the Board for further proceedings. 1. Entitlement to a compensable evaluation for residuals of a right fifth finger injury with slight hypoalgesia. The Court’s decision addressed two issues regarding the veteran’s right finger disability and chronic back condition. See June 2020 Memorandum Decision at 1. Specific to Veteran’s right finger disability, the Court found the Board erred because it relied on a medical examination that did not address functional loss. Citing Correia v. McDonald, 28 Vet. App. 158 (2016), the Court indicated that the “VA examination relied on by the Board does not show that active, weight-bearing-like testing was performed to test the veteran’s gripping ability. Nor does the examination address whether the veteran’s pain caused a limited range of motion when compared with the corresponding joint on his opposite hand.” Id. at 3. Accordingly, a new examination is necessary to satisfy the requirements of Correia and 38 C.F.R. § 4.59. Correia, 28 Vet. App. at 170. 2. Entitlement to service connection for a chronic back disability. As for the chronic back disability, the Court found the Board erred in finding that the duty to assist had been met because certain medical records were not obtained. See June 2020 Memorandum Decision at 2. In particular, the Court noted that as the record referenced VA “VistA” records, which were apparently attached to medical records pertaining to the veteran’s chronic back disability, and as these records were not included in the record, such missing VA documents should have been obtained by the Board. Id. at 4. Further, the Court pointed out that “Under § 3.159(c)(3), VA is required to attempt to obtain such records ‘without consideration of their relevance.’” Id. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for diverticulitis. 5. Entitlement to service connection for gastrointestinal bleeding. 6. Entitlement to service connection for gastrointestinal polyps. 7. Entitlement to service connection for gastrointestinal hemorrhoids. 8. Entitlement to service connection for constipation. 9. Entitlement to service connection for an enlarged prostate. 10. Entitlement to service connection for urinary retention. 11. Entitlement to service connection for anemia. 12. Entitlement to service connection for high cholesterol. The Court found the veteran’s claim for hypertension, diverticulitis, gastrointestinal bleeding, gastrointestinal polyps, gastrointestinal hemorrhoids, constipation, an enlarged prostate, urinary retention, anemia, high cholesterol, which are claimed as secondary to the chronic back disability, were inextricably intertwined with the remanded matters. See June 2020 Memorandum Decision at 5. Accordingly, given the Court’s determination to set aside the part of the Board’s October 2018 decision, the remaining disabilities on appeal are therefore remanded consistent with the Memorandum Decision. 13. Entitlement to service connection for sleep apnea. 14. Entitlement to service connection for a heart disorder, claimed as status post dual chamber pacemaker. 15. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive. 16. Entitlement to service connection for diabetes mellitus. 17. Entitlement to service connection for hyperthyroidism. 18. Entitlement to service connection for diabetic neuropathy of the bilateral upper extremities. 19. Entitlement to service connection for diabetic neuropathy of the bilateral lower extremities. 20. Entitlement to service connection for diabetic kidney disease, stage II. 21. Entitlement to service connection for peripheral vascular disease of the bilateral lower extremities. 22. Entitlement to service connection for peripheral vascular disease of the bilateral upper extremities. 23. Entitlement to service connection for erectile dysfunction. The Board’s October 2018 decision remanded the matters of sleep apnea, a heart disorder, an acquired psychiatric disorder including PTSD and major depressive disorder, diabetes mellitus, hyperthyroidism, diabetic neuropathy of the bilateral upper and lower extremities, diabetic kidney disease, peripheral vascular disease of the bilateral upper and lower extremities, and erectile dysfunction. However, the Board acknowledges the Court’s decision indicating the existence of certain VA treatment records (namely, VistA imaging scans) which are not included in the record. Therefore, prior to the adjudication of issues on appeal, the Board has a duty to assist to obtain missing VA medical records. 38 C.F.R. § 3.159(c)(3). Additionally, the Board observes that the development ordered above could result in information relevant to the Veteran’s claims for sleep apnea, a heart disorder, an acquired psychiatric disorder including PTSD and major depressive disorder, diabetes mellitus, hyperthyroidism, diabetic neuropathy of the bilateral upper and lower extremities, diabetic kidney disease, peripheral vascular disease of the bilateral upper and lower extremities, and erectile dysfunction. As such, these issues are inextricably intertwined with the remanded matters and therefore adjudication must also be deferred at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain VA treatment records and associate with the electronic record and the claims file. In particular, attempt to obtain missing VA records including VistA imaging scans referenced in the Court’s June 2020 Memorandum Decision. All attempts to secure this evidence should be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Schedule the Veteran for an appropriate VA examination for his service-connected residuals of a right finger injury with slight hypoalgesia. The electronic claims file should be accessible to the examiner in connection with the examination. The examiner should consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). In so doing, the examiner should test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). An explanation for all opinions expressed must be provided. 3. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable to the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, Associate Counsel 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.