Citation Nr: 21002226 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 09-00 641 DATE: January 13, 2021 REMANDED Entitlement to service connection for cerebrovascular accident (CVA) residuals is remanded. Entitlement to service connection for a left arm disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1985 to February 1994. The Veteran appeals a January 2007 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans’ Appeals (Board) hearing was held in October 2009. A transcript is of record. After various Board decisions remanding the issues to obtain records and medical opinions, the Veteran appealed the August 2017 Board decision, denying all issues, to the Court of Appeals for Veterans Claims (Court). In October 2018, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded the issues to the Board for further proceedings consistent with the JMPR. Pursuant to the October 2018 Court JMPR, the May 2019 Board decision remanded the issues for additional development. The Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As an initial matter, the Board notes the Veteran had overseas service in Germany and Somalia. See Service personnel records (SPRs). The Veteran had 3 years of foreign service. See February 1994 DD Form 214. The Veteran stated she had service in the Gulf War and in Africa. See June 2006 VA Form 21-526. The Veteran specifically claimed exposure to the burning of tires in Somalia and various chemicals in Desert Shield and Desert Storm. See August 2006 Veteran statement. Photographs submitted in September 2006 noted potential Gulf War service. The Veteran claimed that she was in a combat zone in Southwest Asia. See October 2006 Veteran statement. Given the available SPRs and the Veteran’s statements, the record is unclear as to whether the Veteran had qualifying service in Southwest Asia. Overall, the contentions regarding exposures to the burning of tires and various chemicals have not been addressed in the various VA opinions of record. Importantly, if the Veteran is found to have qualifying service in Southwest Asia, the presumptions regarding Gulf War veterans needs to be considered for her claimed conditions. As such, remand is required to address these contentions and determine whether the Veteran had qualifying service in Southwest Asia. 1. CVA The Veteran’s service treatment records (STRs) noted issues of nausea, dizziness, and a pinched nerve. See, e.g., August and April 1990 STRs. The Veteran’s separation examination noted dizziness and fainting spells. See January 1994 STRs. The Veteran claimed dizziness and nausea in a March 1994 VA Form 21-526. June 2005 treatment records noted a possible stroke. The Veteran stated in August 2006 that her stroke was due to her service-connected hypertension, which resulted in left arm and left leg pain. The Veteran also identified that she had a growth on her left leg during service. See July 2008 DRO hearing tr. at 10. The Veteran attributed her stroke to sleep issues and stress, and noted her service-connected posttraumatic stress disorder (PTSD) and hypertension. See October 2009 Board hearing tr. at 19-20. Overall, the Veteran believes her past stroke was due to a combination of her diabetes, PTSD, and hypertension. Id. at 21. The December 2006 VA examination report regarding peripheral nerves noted a left side deficit due to the Veteran’s central nervous system disease. The August 2008 VA examiner noted there is probably a causal relationship between the Veterans hypertension and diabetes in regard to the Veteran’s development of her stroke that she suffered in May 2005. The February 2012 VA examiner related the Veteran’s left arm and left leg pain to her CVA, but did not find a causal link between PTSD and CVA. The August 2014 VA examiner noted primary risk factors for CVA included diabetes and hypertension. The October 2015 VA opinion noted the Veteran’s left arm and leg issues were encompassed in her CVA stroke residuals. The February 2017 VA opinion did not find the Veteran to have a stroke or left extremity neuropathy. The December 2019 VA examination report did not find the Veteran to have a cranial nerve condition. The December 2019 VA opinion noted hypertension as a risk for CVA, but no strokes were found on current imaging. Overall, the Veteran had neurological symptoms during service and she contends that her condition is due to her diabetes and service-connected PTSD and hypertension. The various VA examinations and opinions of records have linked the Veteran’s left arm and left leg issues to her central nervous system disease. However, the recent VA examinations and opinions noted above have not found the Veteran to have a stroke or cranial nerve condition. Instead, the December 2019 VA examiner found that her symptoms are psychological in nature. The record clearly demonstrates some neurological symptoms regarding the left side of the Veteran’s body. However, the diagnosis regarding the Veteran’s CVA and stroke has become unclear. The Board notes in Saunders v. Wilkie, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment. 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit further explained that to establish a disability, “the [V]eteran will need to show that his pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. Here, SSA records note the Veteran’s complaints and functional impairment regarding her claimed stroke. As such, remand is required to clarify if the Veteran has a diagnosis of any neurological disease regarding the central nervous system, left upper extremity, and left lower extremity. If no diagnosis can be made, the Veteran’s symptoms and functional limitations should be clearly documented. Then etiology opinions should be rendered to determine if the Veteran’s claimed conditions are related to service, caused or aggravated by her service-connected PTSD, caused or aggravated by her service-connected hypertension, or caused or aggravated by her diabetes. 2. Diabetes The Veteran claimed her diabetes as secondary to her service-connected PTSD. See June 2006 VA Form 21-526. The February 2012 VA examiner did not find that the Veteran’s diabetes was related to service, or that there was a causal link between the Veteran’s diabetes and PTSD. The October 2015 VA opinion noted that the Veteran’s diabetes was not caused by PTSD or hypertension, and there was no evidence to support aggravation. The February 2017 VA opinion did not find that the Veteran’s diabetes was related to service or her service-connected PTSD. The December 2019 VA opinion did not find that the Veteran’s diabetes was secondary to her service-connected PTSD. The October 2015 VA examiner provided an opinion regarding a relationship between the Veteran’s diabetes and her service-connected hypertension. However, secondary aggravation was not properly addressed regarding the Veteran’s diabetes and service-connected hypertension. Therefore, remand is required for another VA opinion that appropriately addresses possible aggravation of the Veteran’s diabetes by her service-connected hypertension. Furthermore, the Veteran’s contentions of being exposed to tire burnings in Somalia have not been considered when rendering medical etiology opinions. This contention should be considered in the new VA opinion on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for her CVA, left arm and left leg condition, and diabetes that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and her representative should be notified, and the record clearly documented. 2. The AOJ should take all appropriate steps to verify whether the Veteran served in the Southwest Asia theater of operations. Granted the Veteran has been found to have served in Southwest Asia, undertake any other development found to be warranted. 3. After the development in #1 and #2 above is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s CVA, left arm condition, and right arm condition. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician should identify all central nervous system/neurological, left arm, and left leg conditions present. If any symptoms are not attributable to a diagnosis, any functional limitations should be described. Then, the reviewing clinician is asked to respond to the following inquiries: Has the Veteran had a CVA/stroke? Is it at least as likely as not that the Veteran’s central nervous system/neurological condition and/or functional loss, was incurred in, or otherwise related, to her time on active service, to include, but not limited to, exposure to tire burning in Somalia and chemicals in Southwest Asia? Is it at least as likely as not that the Veteran’s central nervous system/neurological condition and/or functional loss was CAUSED by her service-connected PTSD? Is it at least as likely as not that the Veteran’s central nervous system/neurological condition and/or functional loss was AGGRAVATED by her service-connected PTSD? Is it at least as likely as not that the Veteran’s central nervous system/neurological condition and/or functional loss was CAUSED by her service-connected hypertension? Is it at least as likely as not that the Veteran’s central nervous system/neurological condition and/or functional loss was AGGRAVATED by her service-connected hypertension? Is it at least as likely as not that the Veteran’s central nervous system/neurological condition and/or functional loss was CAUSED by her diabetes? Is it at least as likely as not that the Veteran’s central nervous system/neurological condition and/or functional loss was AGGRAVATED by her diabetes? The reviewing clinician is to consider the in-service notations of dizziness, nausea, and pinched nerves in the Veteran’s STRs. Is it at least as likely as not that the Veteran’s left arm condition and/or functional loss, was incurred in, or otherwise related, to her time on active service, to include, but not limited to, exposure to tire burning in Somalia and chemicals in Southwest Asia? Is it at least as likely as not that the Veteran’s left arm condition and/or functional loss was CAUSED by her central nervous system/neurological condition? Is it at least as likely as not that the Veteran’s left arm condition and/or functional loss was AGGRAVATED by her central nervous system/neurological condition? Is it at least as likely as not that the Veteran’s left leg condition and/or functional loss, was incurred in, or otherwise related, to her time on active service, to include, but not limited to, her claimed in-service growth on her leg, exposure to tire burning in Somalia, and chemicals in Southwest Asia? Is it at least as likely as not that the Veteran’s left leg condition and/or functional loss was CAUSED by her central nervous system/neurological condition? Is it at least as likely as not that the Veteran’s left leg condition and/or functional loss was AGGRAVATED by her central nervous system/neurological condition? If the Veteran is found to have had qualifying service in Southwest Asia, the examiner should also address the following inquiries: If no diagnosis is made, the examiner must opine whether the Veteran’s central nervous system/neurological, left arm, left leg, and/or functional loss symptoms represent manifestations of an undiagnosed illness. If a clinical diagnosis for a central nervous system/neurological, left arm, and left leg condition is made, the examiner must opine whether the etiology OR pathophysiology is not understood as to this particular Veteran. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After the development in #1 and #2 above is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s diabetes. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s diabetes, was incurred in, or otherwise related, to her time on active service, to include, but not limited to, exposure to tire burning in Somalia and chemicals in Southwest Asia? Is it at least as likely as not that the Veteran’s diabetes was CAUSED by her service-connected PTSD? Is it at least as likely as not that the Veteran’s diabetes was AGGRAVATED by her service-connected PTSD? Is it at least as likely as not that the Veteran’s diabetes was CAUSED by her service-connected hypertension? Is it at least as likely as not that the Veteran’s diabetes was AGGRAVATED by her service-connected hypertension? If the Veteran is found to have had qualifying service in Southwest Asia, the examiner should also address whether the etiology OR pathophysiology of the Veteran’s diabetes is not understood as to this particular Veteran? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page)   5. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. J.K. Barone Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.