Citation Nr: 21004553 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 20-20 890A DATE: January 27, 2021 REMANDED Entitlement to service connection for residuals of a transient ischemic attack (TIA), or a stroke, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1964 to February 1985. The Veteran has had a 100 percent combined VA disability rating since April 3, 2007; and he has had a 100 percent VA rating based on individual unemployability due to service-connected disability since January 11, 1997. He is further in receipt of special monthly compensation based on loss of use of bilateral feet pursuant to 38 U.S.C. 1114(p) since December 21, 2007. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The claim was remanded by the Board, in September 2017 and in August 2018, for the issuance of a statement of the case (SOC). A SOC was subsequently issued in November 2018 and in April 2020. In November 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 30 days for the submission of supporting evidence. No evidence was subsequently submitted by the Veteran or his representative. The Board notes that the Veteran filed a timely notice of disagreement, however, in response to the April 2020 SOC, he failed to timely perfect the appeal to the Board. In this regard, although the Veteran filed a substantive appeal – it was not filed within 60 days of the mailing date of the SOC or within one year of the mailing of the notification of the August 2015 rating decision. 38 C.F.R. § 19.52(b). Timely perfection of a substantive appeal is not jurisdictional in nature however, and the Board may exercise jurisdiction over issues raised in an untimely substantive appeal. Given that there was a subsequent Board hearing on the issue in this appeal, the Board finds that waiver of the substantive appeal requirement is warranted. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (holding the filing of a substantive appeal is not jurisdictional and may be waived by VA). The Board, therefore, exercises jurisdiction over the issue. It is also noted that for the November 2018 SOC, the record does not reveal that a substantive appeal was filed, timely or untimely. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Entitlement to service connection for residuals of a TIA, or a stroke, is remanded. The Veteran, and his representative, contends that he has residuals of a TIA, or a stroke, that are related to service, or, in the alternative, secondary to service-connected disability, to include medications and treatment. In regard to direct service connection, the Veteran argues that while in service he had a cerebrovascular accident (CVA), which was diagnosed as a myospasm, and was subsequently given medication, to include Tylenol. Then, in 1980, the Veteran argues that he had another CVA, in which, TIA was ruled out. He was then given aspirin because, he argues, “aspirin is a treatment for TIA or stroke because it more or less, you know, takes care of the clot.” See Hearing Transcript at 4 (November 2020). Next, in regard to secondary service connection, the Veteran contends that his TIAs or stroke are related to his service-connected heart and/or kidney disabilities. He argues that the medication/treatment he is receiving for his disabilities, to include nonsteroidal and antacids, are, according to the Food and Drug Administration (FDA), “linked to stroke and TIA.” Id. at 7. For the below reasons, the Board finds that remand is necessary. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). To establish a claim for entitlement to secondary service connection, three criterions must be met. 38 C.F.R. § 3.310. A veteran must have (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or, aggravated beyond its natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Here, the competent medical evidence of record is unclear on whether the Veteran has a current disability. In this regard, VA examination report, dated in June 2015, reflects that the Veteran was diagnosed with status post TIA, with no residuals. However, in section three of the report, entitled: Conditions, signs and symptoms, the examiner noted that the Veteran had (1) voiding dysfunction causing urine leakage, and (2) voiding dysfunction causing marked hesitancy and marked slow or weak stream. No other condition, signs, or symptoms were noted in the report. The Board finds the June 2015 VA examination report is inadequate. In this instance, the examination report’s findings and conclusions are internally contradictory and inconsistent. Moreover, the report does not provide the Board a reasoned medical explanation or clarification on the contradictory and inconsistent aspects of the report. The apparent inconsistencies, further, indicate that the examiner’s finding of status post TIA, with no residuals, was not based on a sound factual premise and undermines the adequacy of the examination report. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Given the above, the Board finds that remand is necessary for an adequate VA examination that clarifies whether the Veteran has a residual of any TIA or stroke. Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence . . . is essential for a proper appellate decision”). Moreover, if the Veteran is found to have a residual of any TIA or stroke, remand would also be necessary for a VA medical opinion to address the Veteran’s theories of causation. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to the Present. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any TIA or stroke. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. A complete medical history should be obtained. The report should include, among other things, a discussion of the Veteran’s documented history and assertions. The clinician must opine on: (a) Whether it is at least as likely as not the Veteran has, or has had, any residual of a TIA or stroke at any time during the pendency of the claim or recent to the filing of the claim. Consider and expressly address the June 2015 VA examination report finding that the Veteran had, among other things, voiding dysfunction. Explain. FOR THE BELOW, ONLY OPINE IF THE VETERAN IS FOUND TO HAVE A RESIDUAL OF ANY TIA OR STROKE. Further, in addressing the below, consider the medical literature submitted by the Veteran, to include literature received in 2020, 2019, 2013, and in 2011. Direct Service Connection (b) Whether the residual is at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran’s contention that he had a CVA during service and was subsequently given aspirin for treatment of his TIA or stroke. Additionally, consider the May 1980 service treatment record revealing that a TIA was ruled out. Explain. Secondary Service Connection (c) Whether the residual is at least as likely as not (1) proximately due to service-connected heart disability, or (2) aggravated beyond its natural progression by service-connected heart disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. (d) Whether the residual is at least as likely as not (1) proximately due to service-connected kidney disability, or (2) aggravated beyond its natural progression by service-connected kidney disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Secondary Service Connection – Medication/Treatment (e) Whether the residual is at least as likely as not (1) proximately due to medication/treatment taken for service-connected disabilities, or (2) aggravated beyond its natural progression by medication/treatment taken for service-connected disabilities. Consider and expressly address the Veteran’s theory that treatment/medication he is receiving for his disabilities, to include nonsteroidal and antacids, are, according to the FDA, linked to stroke and TIA. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. 3. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.