Citation Nr: 21002662 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 03-04 863 DATE: January 14, 2021 REMANDED Entitlement to service connection for a disability manifesting in chest pain is remanded. Entitlement to service connection for disability of the bilateral legs/ankles is remanded. Entitlement to an initial disability rating in excess of 10 percent for pseudoseizures, history of complex partial seizure disorder is remanded. Entitlement to special monthly compensation at the aid and attendance or housebound rate is remanded. Eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability is remanded.   REASONS FOR REMAND The Veteran served on active duty from November 1971 to December1974 and from July 1980 to July 1983, with additional service in the National Guard. These matters come before the Board of Veterans’ Appeals on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Board determined, in pertinent part, that new and material evidence had been received sufficient to reopen previously denied claims of entitlement to service connection for heart-related chest pain and a bilateral leg disorder. The Board remanded the underlying claims on the merits for further development, and remanded the claims of entitlement to a TDIU, entitlement to SMC at the aid and attendance or housebound rate, and eligibility for automobile benefits as intertwined issues. In February 2018, the Board denied the appeals seeking service connection for heart-related chest pain and bilateral leg/ankle disability and eligibility for financial assistance in the purchase of an automobile and/or automobile adaptive equipment and remanded the issues of entitlement to an initial disability rating in excess of 10 percent for pseudoseizure disorder, SMC at the aid and attendance or housebound rate, and a TDIU for further development. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court), who, in a March 2020 Memorandum Decision, vacated the February 2018 decision, and remanded the matter to the Board for further development and readjudication. Pursuant to the Board’s February 2018 remand directive, the RO issued a statement of the case for the appeal concerning entitlement to a higher initial disability rating for service-connected seizure disorder in March 2020. The Veteran submitted a timely VA Form 9, substantive appeal and the issue is appropriately on appeal before the Board. The Court addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that in determining the scope of a claim, the Board must consider the veteran’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. A claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of her condition, but rather, sufficiently files a claim for benefits “by referring to a body part or system that is disabled or by describing symptoms of the disability.” Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). In regard to his claim seeking service connection for a hear-related chest pain, the Veteran has described experiencing recurrent chest pain during and since service, and prior medical work-ups either concluded that etiology was unknown or non-cardiac in nature. The Board has thereby recharacterized the relevant issue on appeal to provide the most favorable review of the claim in keeping with the Court’s holdings. 1. Entitlement to service connection for a disability manifesting in chest pain is remanded. The Veteran was provided with a VA heart examination in January 2015 and a supplemental opinion in May 2016. The January 2015 examiner opined that the Veteran’s heart condition was less likely than not related to service because in-service chest pain was documented as non-cardiac and because heart examination was normal at a May 1985 VA examination. He further reasoned that seizure disorder is not one of the etiologies of coronary artery disease. The May 2016 VA medical opinion stated that a heart condition was less likely than not incurred in or caused by service or seizures, reasoning that the Veteran did not have a true seizure disorder. When VA provides an examination or obtains a medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). While the January 2015 examination report indicates in the medical history section that the Veteran reported that he had chest pain in service and cardiac catheterization done in 1971 and 1983 which demonstrated findings of mitral valve prolapse, the examiner later checked a box indicating that the Veteran had not had a heart valve condition. The May 2016 examination report also indicates that the Veteran had never had a heart valve condition. It is unclear from the examination reports how or if notations of mitral valve prolapse, systolic murmur, and chest pain documented in the Veteran’s service treatment records (STRs) factored into their conclusions. On remand, a supplemental medical opinion should be provided clarifying the basis for the conclusion reached. The Board further notes that the Veteran has reported experiencing episodes of chest pain during and since service. While the Veteran’s service treatment records document several instances of chest pain, the diagnosis provided was often chest pain or angina, etiology unknown, and an October 1972 psychiatric evaluation diagnosed the Veteran with conversion reaction after noting that he began to develop chest pains following the heart attacks of three family members within the span of one year. On remand, an addendum opinion should also be provided concerning whether the Veteran has a current non-cardiac disability resulting in chest pain which arose during or is otherwise related to service. 2. Entitlement to service connection for disability of the bilateral legs/ankles is remanded. The Veteran was also provided with VA examinations concerning his ankles in January 2015 and May 2016. The January 2015 examiner did not provide a diagnosis for a current ankle disorder, and opined that a bilateral ankle condition was less likely than not incurred in or related to his active duty and is not related to a seizure disorder, reasoning that a March 1983 service treatment record mentioned that the Veteran had ankle strain that was acute and resolved while in service, that the examiner could not locate any documented evidence of a chronic bilateral ankle condition during service or in the civilian record immediately after the Veteran left service, and that seizure disorder is not one of the etiologies of ankle strain. This rationale, however, neglects to mention that March 1983 service treatment records document chronic ankle synovitis following injury where the Veteran awoke from a seizure with his ankles caught in the end of his bed bed and twisted, continued ankle instability in April 1983, continued wearing of leg braces in June 1983, and a diagnoses of strained ankle joints listed in a July 1983 examination report. The May 2016 examiner also found that the claimed ankle condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, “based on the history, physical examination, review of the C-file, the VA medical records, and the medical literature.” The examiner listed pieces of evidence including a June 1983 service treatment record indicating that the Veteran was not disabled at the time of his ETS because he had been performing duty, and a June 1983 clinical note indicating that there was no present orthopedic indication for the wearing of the leg braces, which had originally been prescribed based on the presumptive neurological problem. The Board notes that the June 1983 clinician’s statement that the leg braces were originally prescribed based on a presumptive neurological problem is inconsistent with March 1983 STRs documenting ankle inversion and eversion weakness, and diagnosing unstable bilateral ankles requiring the use of short ankle braces bilaterally. The examiner further indicated that he was unable to assess the status of the Veteran’s bilateral ankles because the Veteran would not or could not cooperate with range of motion or strength testing, with the Veteran asserting that he could not move because he is quadriplegic due to a back condition. He concluded that because there is no diagnosis, there can be no linkage to service. As directed by the Court’s memorandum decision, remand is needed to procure a new medical opinion that is based upon consideration of the Veteran’s full medical history. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with remand instructions). 3. Entitlement to an initial disability rating in excess of 10 percent for pseudoseizures, history of complex partial seizure disorder is remanded. 4. Entitlement to special monthly compensation at the aid and attendance or housebound rate is remanded. In an April 2020 brief, the Veteran’s representative asserted that the Veteran was not able to attend an examination scheduled to show the severity of his conditions because he needs extra help and ample time to attend and verify examinations, due to being legally blind, legally deaf, and wheelchair bound. He further asserted that VA should verify with the Veteran in advance that he knows about exams rather than just sending notice, and should verify that he has a way to attend the examinations once scheduled. September 2019 printouts indicate that the Veteran’s examinations concerning the severity of his pseudoseizure disorder and need for regular aid and attendance were cancelled because the Veteran was a “no show.” A July 2019 VA social work note states that the social worker spoke with the LHI Compensation and Pension contact who stated that the Veteran was scheduled for an examination on September 4, 2020 and indicated that the Veteran would be provided with transportation. However, a copy of the July 2019 notice letter sent to the Veteran by the VA social worker states that the Veteran was scheduled for a C&P examination for September 9, 2020 and would be provided with transportation which would pick him up at his home. It is unclear whether the Veteran’s “no show” to the appointment was due to the inconsistency regarding the date of his examination. On remand, the Veteran should be scheduled for examination of the current severity of his seizures and the combined functional impact of his service connected disabilities as it relates to his claimed need for regular aid and attendance. Given the Veteran’s hearing and vision impairments, the Veteran should be sent notice of such examination(s) by mail using large-font type, his representative should be copied on any such notice, and reasonable steps should be taken to verify that the Veteran is made aware the date(s) of the examination(s). 5. Eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment is remanded. Because a decision on the remanded issue of entitlement to service connection for bilateral leg/ankle disability could significantly impact a decision on the issue of eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment, the issues are inextricably intertwined. A remand of the latter issue is therefore needed. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disability is remanded. Because a decision on the remanded issues of entitlement to service connection for bilateral leg/ankle disability and development concerning the issue of entitlement to an initial disability rating in excess of 10 percent for service-connected pseudoseizures could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the latter claim is therefore also needed. As a final note, review of the Veteran’s VA treatment records indicate that non-VA treatment records have been uploaded and are viewable via VistA Imaging software, such as a July 2018 scanned emergency department note. The Board does not have access to VistA Imaging, and is thus unable to review such documents. On remand, the AOJ should ensure that any potentially relevant treatment records accessible via VistA Imaging are associated with the official record of this case. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2020 to the present. To the extent that there are relevant non-VA treatment records that have been scanned into VA systems (such as Vista Imaging) from January 2001 to the present that have not yet been associated with the claims file, such should be produced and added to the record. 2. Ensure the Veteran receives sufficient notice of the date, time, and location of any examination scheduled pursuant to the below remand directives. Such communication should be in writing and use large-font type, as the Veteran is legally blind. CC the Veteran’s representative on all examination scheduling correspondence and take reasonable action to verify that the Veteran has received notice of and has transportation to the scheduled examination(s). A copy of any such correspondence should be added to the claims file. 3. After associating all responsive records with the claims file, refer the Veteran’s file to a suitable health care professional for a supplemental opinion concerning the Veteran’s claim for service connection for disability manifesting in chest pain. The clinician must review the claims file. If additional examination is found needed to respond to the below, such should be scheduled and the Veteran provided with sufficient notice. The clinician is asked to address the following: a. Identify a diagnosis for any disability manifesting in chest pain, cardiac or otherwise, present at any point during the relevant appeal period (January 2001 to present), whether or not it has resolved during that period. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should indicate this and consider them a “disability” for the purpose of providing the requested opinion(s) below. b. For any disability manifesting in chest pain identified: i) Is it at least as likely as not that the disability arose during or is otherwise related to service, including but not limited to heart murmur and mitral valve prolapse noted in December 1981 STRs; complaints of acute and chronic chest pains in 1972 STRs; and conversion reaction discussed in an October 1972 in-service psychiatric evaluation? ii) Is it at least as likely as not that the disability is proximately caused by the Veteran’s service-connected pseudoseizure disorder? iii) Is it at least as likely as not that the disability is aggravated beyond its natural progression by the Veteran’s service-connected pseudoseizure disorder? A complete rationale must be provided for any opinion or conclusion stated. 4. After associating all responsive records with the claims file, refer the Veteran’s file to a suitable health care professional for a supplemental opinion concerning the Veteran’s claim for service connection for a bilateral leg/ankle disorder. The clinician must review the claims file. If additional examination is found needed to respond to the below, such should be scheduled and the Veteran provided with sufficient notice. The clinician is asked to address the following for any leg and/or ankle disability present at any point during the relevant appeal period (May 2001 to the present). If a diagnosis cannot be identified but the Veteran’s leg/ankle condition manifests in symptoms that cause functional impairment, then the examiner should indicate this and consider them a “disability” for the purpose of providing the requested opinion(s) below. a. Is it at least as likely as not that the disability arose during or is otherwise related to the Veteran’s military service? The clinician’s attention is directed to March 1983 STRs documenting the Veteran’s report of twisting his ankles when they were caught in the end of the bed while he experienced a seizure, and observed inversion/eversion weakness and instability, notations in April 1983 STRs of unstable ankles requiring wearing short leg braces bilaterally, a June 1983 STR reviewing the Veteran’s ankle condition, and a July 1983 STR noting strained ankle joints. b. Is it at least as likely as not that the disability is proximately caused by the Veteran’s service-connected pseudoseizure disorder? c. Is it at least as likely as not that the disability is aggravated beyond its natural progression by the Veteran’s service-connected pseudoseizure disorder? A complete rationale must be provided for any opinion or conclusion stated. 5. After associating all responsive records with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected pseudoseizure disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. A complete rationale must be provided for any opinion or conclusion stated. 6. After associating all responsive records with the claims file, schedule the Veteran for a VA examination to assess the combined effect of his service-connected disabilities as they relate to his claimed need for regular aid and attendance. After reviewing the evidence of record, the Veteran’s lay statements, and the results of any testing performed at the examination, the examiner should opine whether it is at least as likely as not that the Veteran’s service-connected disabilities result in functional impairment requiring the regular aid and attendance of another person to assist with any of the following activities of daily living: i. dressing and undressing himself; ii. keeping himself ordinarily clean and presentable; iii. feeding himself; iv. attending to the wants of nature; v. frequently adjusting any special prosthetic or orthopedic appliances which by reason of the service-connected disability cannot be done without aid; and/or vi. protecting himself from hazards or dangers incident to his daily environment? If the Veteran requires assistance with any of the above, the examiner should comment upon the frequency and duration of such need. Responses to the above should not merely be stated as “yes” or “no,” but rather should include details elicited from the Veteran concerning any such limitation and identification by the examiner of what service-connected disability or disabilities result in such limitation, and how. If the Veteran requires assistance with any of the above due to a nonservice-connected disability, the examiner should so state and identify the disability, to the extent possible. A complete rationale must be provided for any opinion or conclusion stated. 7. After completing the above and conducting any further development deemed necessary in light of the expanded record, readjudicate the Veteran’s claims of entitlement to service connection for disability manifesting in chest pain, entitlement to service connection for disability of the bilateral legs/ankles, entitlement to an initial disability rating in excess of 10 percent for service-connected pseudoseizures, entitlement to SMC at the aid and attendance or housebound rate, eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment, and entitlement to a TDIU. If any of the benefits sought are not granted to the Veteran’s satisfaction, issue the Veteran and his representative a supplemental statement of the case and allow them a reasonable opportunity to respond before returning the appeal to the Board, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.