Citation Nr: 21062919 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-02 930 DATE: October 12, 2021 ORDER Entitlement to service connection for the residuals of a cerebrovascular accident (CVA), claimed as a "stroke," based upon a theory of secondary aggravation, is granted. REMANDED From August 22, 2011, entitlement to a rating greater than 60 percent for coronary artery disease (CAD) is remanded. Entitlement to service connection for atrial fibrillation (AF), as secondary to service-connected CAD, is remanded. Entitlement to service connection for the residuals of a cerebrovascular accident (CVA), claimed as a "stroke," based upon a theory of secondary causation, is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's CAD aggravates his CVA residuals. CONCLUSION OF LAW The criteria for service connection for CVA residuals, as secondary to CAD on an aggravation basis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Board previously considered this appeal in May 2021. At that time, it remanded four issues for additional development. The Board, based on that development and Bailey v. Wilkie, 33 Vet. App. 188 (2021), has added a fifth issue, i.e., entitlement to service connection for AF. In Bailey, the United States Court of Appeals for Veterans Claims (CAVC) noted that 38 C.F.R. § 3.155(d)(2) provides, in relevant part, that VA will also consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 CFR Part 4, VA Schedule for Rating Disabilities. The CAVC also noted that "complications" are not defined by regulation and, after citing several dictionary definitions, concluded that the ordinary meaning of "complications" in 38 C.F.R. § 3.155(d)(2) encompasses disabilities caused or aggravated by treatment for a service-connected disability. The CAVC acknowledged that VA amended 38 C.F.R. §§ 3.155(d)(2) and 3.160 to eliminate the concept of informal claims, but it found that the amendments did "not alter VA's general practice of identifying and adjudicating issues and claims that logically relate to and arise in connection with a claim pending before VA." 79 Fed. Reg. 57,660, 57,673 (Sept. 25, 2014) (final rule). The CAVC rejected the Secretary's reliance on Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020), Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. 2017), and Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008), in support of the position that the Board was not required to address the secondary service connection claims. The CAVC concluded that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability. Here, the entitlement to service connection for AF was reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for CAD. Issue 1: Entitlement to service connection for the residuals of a cerebrovascular accident (CVA), claimed as a "stroke," based upon a theory of secondary aggravation Secondary Service Connection Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Merits The Veteran, according to a September 2021 VA examination, had a CVA in August 2010. The residuals of this CVA include "intermittent gait instability" and a "wide-based gait and cognitive difficulty." This satisfies the first prong of a secondary service connection claim for this disorder. VA has service connected the Veteran's CAD. It has rated the CAD as 60 percent disabling since August 22, 2011. This satisfies the second prong of a secondary service connection claim for this disorder. This appeal turns on the question of medical nexus. In September 2013, a VA examiner opined: Stroke was less likely as not caused by CAD, more likely caused by non-SC AFib which he had many years prior to dx of CAD. He had recently stopped his anticoagulation without physician orders. He had an embolic stroke. This opinion matters for two reasons. First, it demonstrates that the CVA issue is intertwined with the AF issue (discussed in more detail, below). Second, VA examined the Veteran for the CVA issue in September 2021. The examiner found he could identify a baseline of the CVA residuals, and that the CAD aggravates the CVA residuals. This satisfies the third prong of a secondary service connection claim for this disorder. The Veteran has satisfied all three prongs of a secondary service connection claim for this disorder. Notwithstanding this, the Board is mindful, pursuant to 38 C.F.R. § 3.310, that the Veteran's disability rating for the CVA residuals will be lower under an aggravation theory than under a causation theory vis-à-vis secondary service connection. As a result, the Board will grant service connection under an aggravation theory now so as not to delay benefits to the Veteran, but it will remand the issue under a causation theory because of the intertwined AF issue. REASONS FOR REMAND Remand is warranted for additional development. CAD In May 2021, the Board, in remanding this issue, stated: In December 2019, the Veteran's treating VA cardiologist (Dr. C.J.P.) completed an Ischemic Heart Disease DBQ, in which he asserted that the Veteran has chronic congestive heart failure and an ejection fraction of < 20 percent. Dr. C.J.P. referred to an August 20, 2019 echocardiogram. However, the only such record in the claims file is an August 20, 2019 narrative echocardiogram report which actually pertains to a different person. The December 2019 Ischemic Heart Disease DBQ is consequently not sufficient for rating purposes. The Board has reconsidered the evidence above. The August 20, 2019, echocardiogram cited above is located on page 42 of a 70-page document uploaded to the Veteran's claims file on January 9, 2020, entitled "Medical Treatment Record Government Facility." On the echocardiogram report, another Veteran, J.C., is listed as the patient. Notwithstanding this, the other coronary events listed on the December 2019 DBQ appear to be accurate for the Veteran in this appeal. For example, the December 2019 DBQ cites a September 16, 2019, cardiac catherization. This catherization occurred on the claimed date, as seen on page 15 of the same 70-page document cited above. Additionally, VA physicians treated the Veteran in this appeal after the August 20, 2019, echocardiogram based upon its results. Therefore, the Board finds it is necessary for the AOJ to contact Dr. C.J.P. or another Veterans Health Administration employee to clarify if the Veteran in this appeal was the subject of the August 20, 2019, echocardiogram before it adjudicates the CAD issue. AF VA examined the Veteran for the CAD issue in September 2021. As part of this examination, the examiner stated the AF was "associated" with CAD and was a "CONDITION[] FOUND ... DIRECTLY DUE TO OR RELATED TO THE SERVICE-CONNECTED DIAGNOSIS (I.E. A PROGRESSION)" of the CAD. To justify this, however, the examiner stated, "the veteran has non-associated a fib as well as a cardiomyopathy post CAD with stent placement." Thus, the examiner opined that the AF was both "associated" and "non-associated" with the CAD, a critical distinction impacting whether AF warrants service connection on a secondary basis. The record is consistent that the AF predated the CAD by at least five years, so the Board needs to determine if the September 2021 examiner concluded the CAD aggravates the AF. Therefore, remand is necessary for an addendum opinion. CVA In September 2013, a VA examiner opined: Stroke was less likely as not caused by CAD, more likely caused by non-SC AFib which he had many years prior to dx of CAD. He had recently stopped his anticoagulation without physician orders. He had an embolic stroke. As explained above, this opinion demonstrates that the CVA issue is intertwined with the AF issue. Although the Board has service connected the CVA residuals under an aggravation theory, remand is necessary to determine if it is warranted under a causation theory. Skin In May 2021, the Board remanded this issue for a VA examination. The Board ordered an etiological opinion as follows: "In formulating this opinion, the examiner must discuss the skin rash that manifested and was treated during active-duty service. See STRs dated in July 1967." VA examined the Veteran in September 2021. VA, based on the Board's directive instructed the examiner: PLEASE OPINE, FOR EACH CURRENT/RECURRENT SKIN CONDITION, AS TO WHETHER IT IS AT LEAST AS LIKELY AS NOT (50/50 PROBABILITY) THAT THAT THE DISORDER I. BEGAN DURING ACTIVE-DUTY SERVICE. II. IS RELATED TO SOME INCIDENT OF ACTIVE-DUTY SERVICE, INCLUDING THE VETERAN'S EXPOSURE TO AGENT ORANGE DURING SERVICE OR HIS IN-SERVICE TREATMENT FOR RASH OUTBREAKS.IN FORMULATING THIS OPINION, THE EXAMINER MUST DISCUSS THE SKIN RASH THAT MANIFESTED AND WAS TREATED DURING ACTIVE-DUTY SERVICE. SEE SERVICE TREATMENT RECORDS DATED IN JULY 1967. The examiner answered: THE VETERAN'S psoriasis IS LESS LIKELY THAN NOT (50 PERCENT OR GREATER PROBABILITY) INCURRED IN OR CAUSED BY THE SPECIFIC IN-SERVICE ILLNESS, EVENT, OR INJURY DURING SERVICE. The veteran served in the USA 5/9/1967 to 2/9/1970. The veteran has noted psoriasis with Dermatology consultation noted on 1/9/2020 reporting onset in 2013. The medical record however lacks sufficient information to support the psoriasis condition as having been incurred during the period of active service as well as any clinical visits for rashes. It is therefore noted THE VETERAN'S MEDICAL RECORDS SUPPORT THAT ANY CURRENTLY DIAGNOSED CONDITION(S) RELATED TO THE VETERAN'S CLAIMED SKIN CONDITION/ RASH, IS LESS LIKELY THAN NOT (50 PERCENT OR GREATER PROBABILITY) INCURRED IN OR CAUSED BY THE SPECIFIC IN-SERVICE ILLNESS, EVENT, OR INJURY DURING SERVICE. The examiner did not, as the Board ordered, discuss the Veteran's in-service skin rash. Therefore, the opinion is inadequate, and an addendum opinion is warranted. TDIU The TDIU issue is inextricably intertwined with the other four appellate issues. Therefore, the Board will remand it to allow for the development of the other issues. The matters are REMANDED for the following action: 1. Contact Dr. C.J.P., the Veteran's treating physician, who completed the December 2019 cardiac DBQ. Ask Dr. C.J.P. to confirm whether the August 20, 2019, echocardiogram discussed in his DBQ was performed on the Veteran or J.C., another Veteran patient. If Dr. C.J.P. is not available, contact another employee within the Veterans Health Administration that can answer this question. Document all correspondence and upload into the Veteran's claims file. 2. Obtain an addendum opinion from the examiner who performed the September 2021 cardiac examination, or if unavailable another qualified clinician. Schedule the Veteran for an examination only if deemed necessary by the clinician. The examiner must answer: a) You stated the Veteran's AF was both "associated" and "non associated" with the Veteran's CAD. Which is correct? Why? b) Is it at least as likely as not (50 percent probability) that the Veteran's CAD aggravates his AF? Why or why not? 3. Obtain an addendum opinion from the examiner who performed the September 2021 skin examination. The examiner must answer: a) Is it at least as likely as not (50 percent probability) that the Veteran's skin disorder began during, or was otherwise caused by, military service? Why or why not? In answering this question, the examiner MUST discuss the skin rash that manifested and was treated during active-duty service in July 1967. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.