Citation Nr: 21001421 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 11-08 238 DATE: January 8, 2021 ORDER Service connection for a back condition, to include degenerative arthritis of the spine, is granted. Service connection for Parkinson’s disease is granted. Service connection for an acquired psychiatric disorder, to include depression secondary to service-connected Parkinson’s disease and back disability, is granted. Service connection for an eye condition, to include macular degeneration, is granted. REMANDED Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for bilateral knee conditions is remanded. Entitlement to a total rating based on individual employability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran's back condition, to include degenerative arthritis of the spine, is etiologically related to active service. 2. The Veteran was exposed to heavy metal toxins while on duty. 3. The Veteran's on-duty exposure to heavy metal toxins contributed to the onset of Parkinson’s disease. 4. The Veteran's acquired psychiatric condition is proximately due to his service-connected Parkinson’s disease and back disability. 5. The Veteran’s on-duty exposure to heavy metal toxins contributed to the onset of his eye condition, to include macular degeneration. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability, described as degenerative disc disease, have been met. 38 U.S.C. §§ 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306(a), 3.307, 3.309. 2. The criteria for service connection for Parkinson’s disease are met. 38 U.S.C. §§ 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306(a), 3.307. 3. The criteria for service connection for an acquired psychiatric condition, secondary to service-connected Parkinson’s disease and back disability, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to service connection an eye disability, to include macular degeneration, have been met. 38 U.S.C. §§ 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306(a), 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1978 to August 1981 and thereafter with the Army Reserve from February 1982 to April 1983. This matter is before the Board of Veterans’ Appeals (Board) on appeal from March 2009 and February 2010 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has been remanded two times previously, in September 2014 and August 2017. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 1 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As explained in more detail below, the addendum medical opinions regarding the Veteran's neck and knee disabilities are inadequate; consequently, another remand is warranted. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be awarded for a disability which is proximately due to or the result of a service-connected disease or disability. See 38 C.F.R. § 3.310. Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a “chronic disease” that is among the listed conditions. In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training or experience. 38 C.F.R. § 3.159(a)(2). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence, the benefit of the doubt is afforded the claimant. Back Disability The record shows that the Veteran has been diagnosed with degenerative arthritis of the spine, satisfying the requirement of a current disability. The Veteran contends that the repetitive trauma of jumping on and off large vehicles with a medic’s pack and offloading cargo as part of his duties as a medic attached to a mechanized infantry battalion caused his back disability. He testified that he injured his back two or three times during active duty, but he did not seek formal medical treatment, treating it himself instead (as it was customary for the medics to treat injuries informally amongst themselves). He testified that he has had pain in his back since his active military duty. Military personnel records associated with the claims file show that the Veteran was an aidman assigned to the 25th Infantry Division. At a Decision Review Officer hearing in May 2012, the Veteran’s wife, a physical therapy assistant, testified that she has been married to the Veteran for thirty years and that they were married approximately one year after the Veteran left active service. She described the Veteran’s complaints of back pain and stated that she would massage and apply hot pads to his back. Initially, her “over the counter treatment” relieved the Veteran’s pain, but when those treatments stopped relieving his pain, he sought additional medical treatment. The Veteran and his wife are competent to report the nature, onset and course of his back pain, based on their observations. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His reports of back pain beginning in service are corroborated by the testimony of his wife, a physical therapy aide, who began treating her husband’s back pain while he was still in the Reserves, around 1982. (The Veteran was discharged from active duty service in August 1981 and served in the Army Reserves between February 1982 until April 1983). The Board notes that the record contains three nexus opinions – a positive September 2009 opinion from Dr. Ortiz and two negative nexus opinion from the same VA examiner in February 2015 and June 2018. In September 2009, Dr. Ortiz observed that the type of stress applied to the Veteran's spinal column from doing exercises and strenuous activities with heavy equipment can cause inflammatory changes and subsequent degenerative disease. She noted that he had lumbar osteoarthritis and degenerative disc disease, but did not explicitly state that the Veteran's in-service activity had caused inflammatory and subsequent degenerative changes. The Board notes that her opinion does draw a connection between the specific types of activities the Veteran reported performing in service with the subsequent diagnoses. Overall, this opinion is afforded little weight. As for the two negative opinions from the same VA examiner, the Board gives these no probative weight. In the August 2017 Board remand, the Board found the February 2015 nexus opinion inadequate as the VA examiner failed to account for the Veteran's description of his physical activities and duties in service and remanded the matter for an addendum opinion. The Board specifically directed the VA examiner to account for the Veteran's descriptions of his physical activities and duties in service including climbing up on and jumping off of large vehicles and offloading cargo. However, in his June 2018 opinion, the VA examiner again failed to account for the Veteran's description of his physical activities, relying instead on inaccurate “facts” regarding the Veteran's military service. Accordingly, these opinions are given no weight. Based on the Veteran's competent and credible testimony concerning the continuity of his back pain in and since service, corroborated by the testimony of his wife, as well as the fact of a current diagnosis of a chronic disease, the Board finds that service connection is warranted for his back disability. Parkinson’s Disease The August 2018 remand directed the agency of original jurisdiction (AOJ) to obtain certain missing service records. In November 2019, the Veteran was informed that attempts had been made to obtain these service records, but the records could not be located and were unavailable for review. The Veteran was further informed that all efforts to obtain the needed information were exhausted and based on these facts, it was determined that further attempts to obtain the records would be futile. The Veteran was invited to submit records in his possession and advise VA of possible locations of the records. The Board finds that there has been compliance with the Board’s prior remand directive on obtaining service department records. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). In situations where the service records are incomplete, lost or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997). The Veteran contends that he was exposed to lead and other heavy metals while performing duties that included painting vehicles with lead based paint, painting buildings and soldier’s housing, being exposed to gasoline in the motor pool and handling bullets, firearms and “other forms” that contain lead. The Veteran's military personnel records show that he was attached to a mechanized infantry battalion while on active duty and was assigned to a cargo transport company at Roosevelt Roads Naval Station while in the Army Reserves. As detailed above, the AOJ attempted to get the Veteran's personnel records to more specifically identify his exposures. However, these records were unavailable. Resolving all doubt in favor of the Veteran, the Board finds that he was exposed to lead and other heavy metal toxins while on duty. In April 2015, the VA examiner concluded that the Veteran's Parkinson’s disease was more than 50 percent probability incurred in or caused by his in-service exposure to heavy metals, noting that heavy metal toxicity is a well-known cause of increased incidence of degenerative conditions. Her opinion was consistent with the September 2009 opinion of Dr. Ortiz, who concluded that the Veteran's Parkinson’s disease was more likely than not due to in-service heavy metal exposure, based on his early presentation of Parkinson’s symptoms and tests showing elevated levels of lead, gadolinium, cadmium and antimony. These opinions are according significant probative weight. In February 2015, the same VA examiner concluded that there was no connection between the Veteran's Parkinson’s disease and the military service. However, in her April 2015 opinion, the VA examiner stated that based on her review of new medical information that included treatment records from Drs. Ortiz and Hernandez, her February 2015 opinion was not valid. Therefore, it is given no probative weight. Accordingly, service connection for Parkinson’s disease is granted. Acquired Psychiatric Disorder The Veteran contends that his acquired psychiatric disorder, to include depression, was caused or aggravated by his now service-connected Parkinson’s disease and back disability. The Veteran has been diagnosed with depression, satisfying the requirement of a current disability. The evidence of record contains three opinions connecting the Veteran's depression to his Parkinson’s disease. A January 2007 opinion from Dr. Hernandez attributed the Veteran’s depression to his physical conditions, including Parkinson’s disease and his back disability. In September 2009, Dr. Ortiz concluded that the Veteran's psychiatric problems were secondary to his physical disabilities. The April 2015 opinion from the VA examiner explained that depressive disorder is common in individuals with Parkinson’s disease. These opinions, which are consistent with each other and the evidence contained in the treatment record, are given significant probative value. Consequently, service connection for the Veteran’s acquired psychiatric disorder secondary to his Parkinson’s disease and back disability, is granted. Macular Degeneration The Veteran was diagnosed with bilateral macular degeneration by May 2009. The Veteran was exposed to lead and other heavy metal toxins while on duty. In September 2009, Dr. Ortiz, a private medical provider, opined that the Veteran's macular degeneration was more likely than not due to in-service heavy metal exposure. She supported her conclusion with an explanation that heavy metals, especially lead, caused visual degeneration and how that related to the Veteran's eye condition given his in-service heavy metal exposure. Her opinion is given significant probative weight. The Board notes that in February 2015, the VA examiner concluded that the Veteran's eye condition was less likely than not related to in-service heavy metal exposure, because he could not rule out post-service heavy metal exposure or other causes. He rejected Dr. Ortiz’s opinion on the basis that she was not an optometrist or ophthalmologist and did not examine the Veteran's eyes, but did not dispute the diagnosis (confirmed by his examination) or her rationale. He noted that a recent study found an association between macular degeneration and lead and cadmium exposure, which corroborates Dr. Ortiz’s opinion. He also did not comment on whether Veteran's in-service heavy metal exposure contributed to his eye condition. Given these deficiencies, his opinion is given little probative weight. In sum, the preponderance of the evidence is that the Veteran's in-service exposure to heavy metals contributed to his eye condition, diagnosed as macular degeneration. Therefore, service connection is granted. REASONS FOR REMAND The August 2017 remand directed the AOJ to obtain an addendum nexus medical opinion that accounted for the Veteran's description of his inservice activities and duties with an adequate rationale regarding the Veteran's neck and knee disabilities. The opinions obtained in June 2018 were again inadequate, and another remand is required. In the August 2017 order, the VA examiner was instructed to review the entire file and render an opinion as to whether it was at least as likely as not that the Veteran's current neck and knee disabilities were incurred in, related to or caused by any incident of his military service. The examiner was specifically instruction to consider the Veteran's physical activities, including climbing up on and jumping off of large vehicles and offloading cargo. He was further instructed to explain the rationale and reasons for all opinions, citing to relevant evidence, supporting factual data, medical literature and prior medical opinions as appropriate. Despite these instructions, the June 2018 addendum opinion offered the same rationale as the inadequate February 2015 opinion – that the Veteran's neck and knee disabilities were related to the “progression of degenerative changes” that “can occur as part of the normal aging process” In support of this general statement, the examiner cited to no medical literature. Instead, he asserted that these atraumatic degenerative changed occurred in “almost all human beings.” Regarding the Veteran's knee disabilities, the VA examiner explicitly found in his February 2015 examination that no degenerative or traumatic arthritis was documented in the Veteran's knees. He diagnosed the Veteran with bilateral patellofemoral syndrome and meniscal tears in both knees. However, he checked a box indicating there was another diagnosis, but did not specify that diagnosis. Despite this, in June 2018, the VA examiner concluded that the Veteran's knee conditions were less likely than not because his knee conditions “are related on the progression of degenerative changes that can occur as part of the normal aging process [and] objective imaging studies are compatible with normal atraumatic degenerative changes that occur during aging process.” However, he provides no explanation for how this rationale would apply to the Veteran's listed knee conditions, which were not indicated to be degenerative. Given the deficiencies in the original examination and addendum opinion, a new examination with a new examiner is warranted. As for the Veteran's neck disability, the June 2018 opinion failed to consider the Veteran's description of in-service activities. Rather, the examiner listed his own (inaccurate) “facts” regarding the Veteran's military service and attributed the Veteran's neck condition as “related on [sic] the progression of degenerative changes that can occur as part of the normal aging process.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the VA examiner did not adequately account for Dr. Ortiz’s September 2009 opinion. The examiner only addressed Dr. Ortiz’s opinion in his February 2015 opinion, in which he stated he totally disagreed with her opinion because she relied on the Veteran's accounts of his in-service activities – the same statements which he failed to consider despite two Board orders directing him to do so. On remand, an addendum medical opinion is required from a new examiner. The claim for TDIU is inextricably intertwined with the outcome of the Veteran’s claims for service connection for his neck and knee conditions and the ratings assigned for his service-connected Parkinson’s disease, acquired psychiatric disorder, back disability and eye condition. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski 1 Vet. App. 180, 183 (1991). As such, Board consideration of the Veteran’s appeal concerning his claim for TDIU must be deferred pending the RO’s re-adjudication of his service connection claims and assignment of an initial rating. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA knee examination; the examiner must identify any current diagnosis or disability affecting the Veteran’s knees. For each identified condition, the examiner must opine as to whether such is at least as likely as not caused or aggravated by service or service-connected disabilities, including the effect of any gait alterations caused by the Veteran's Parkinson’s disease or other service-connected disabilities. Any necessary tests in support of the examination should be scheduled. The examination will be scheduled with a provider other than the one who provided the February 2015 and June 2018 opinions. The examiner will expressly consider the Veteran’s physical activities and duties as a Medical Specialist, including climbing up on and jumping off of large vehicles and offloading cargo. The examiner will also comment on Dr. Ortiz’s September 2009 opinion. The examiner must review the entire record and explain the rationale and reasoning for all opinions and conclusions provided. 2. Obtain an addendum medical opinion from a medical provider other than the June 2018 examiner as to whether it is at least as likely as not that the Veteran's current neck disability was caused or aggravated by his military service and whether it was caused or aggravated by the Veteran’s service-connected Parkinson’s disease or other service-connected disabilities. The examiner will expressly consider the Veteran’s physical activities and duties as a Medical Specialist, including climbing up on and jumping off of large vehicles and offloading cargo. The examiner will also comment on Dr. Ortiz’s September 2009 opinion. The examiner must review the entire record and explain the rationale and reasoning for all opinions and conclusions provided. The need for a new physical examination or additional testing is at the discretion of the reviewing provider. 3. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.