Citation Nr: 21063143 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 15-08 973A DATE: October 13, 2021 REMANDED Entitlement to service connection for a neurological and/or muscle disease manifested by muscle pain, claimed as due to in-service exposure to an herbicide agent, asbestos, anthrax vaccinations, bromide tablets, and/or as due to undiagnosed illness or other qualifying chronic disability (hereinafter 'muscle disorder') is remanded. Entitlement to an evaluation in excess of 30 percent for service-connected chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to eligibility for specially adapted housing is remanded. Entitlement to eligibility for a special home adaptation grant is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January September 1960 to October 1980, and he contends that he has additional service of an unconfirmed nature in the Air Force Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions from Regional Offices (ROs) of the Department of Veterans Affairs (VA). Specifically, April 2013 and June 2016 rating decisions denied service connection for the muscle disorder and higher rating for the service-connected COPD. In a February 2018 rating decision, the RO denied claims for eligibility for specially adapted housing and a special home adaptation grant. Appeals from both decisions were separately and properly perfected. The claims for eligibility for specially adapted housing and a special home adaptation grant were awaiting a Board hearing. In a September 2021 statement, the Veteran requested that this hearing request be canceled. As the two appeals are now both certified and properly perfected and no longer waiting a Board hearing, the two appeals are now properly merged for purposes of Board review. Therefore, the Board has appropriate jurisdiction on these matters. In May 2019, the Veteran participated in a Travel Board hearing conducted by the undersigned Veterans Law Judge (VLJ) at the RO as for the issues of service connection for the muscle disorder and higher rating for COPD. A transcript of this hearing has been associated with the Veteran's file. By way of history, the claims for service connection for the muscle disorder and higher rating for COPD were remanded in an October 2019 Board decision. However, although the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so that he is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. The Board finds that all of the 2019 directives were not substantially complied with, so the Board must again remand the matters. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Muscle Disorder. The Veteran contends that his COPD is due to his military service, to include environmental exposures, including herbicide agents, asbestos, anthrax vaccinations, bromide tablets, and/or as due to undiagnosed illness or other qualifying chronic disability. Specifically, the record reflects that the Veteran has consistently asserted diffuse muscle pain and the presence of atrophic muscle fibers throughout his body. Diagnoses of fibromyalgia and "angular atrophic muscle fibers" were rendered upon biopsy in March 2012. The post remand May 2021 examination confirmed the diagnosis of muscle wasting and atrophy. As noted in the 2019 Board remand, the Veteran contended that the etiology of this disability is the result of in-service exposure to an herbicide agent and/or asbestosis both of which has been confirmed (emphasis added). However, there has been no medical opinion considering the Veteran's contentions that he was exposed to herbicide agents or asbestos. Regardless of pulmonary disabilities not being presumptive conditions, the Veteran's Agent Orange exposure and asbestos exposure has been conceded, but the RO did not address or develop the Veteran's claims based on his exposure to herbicide agents or asbestos. As such, the appeal has not yet been properly developed according to the procedures set forth in VA's Adjudication Procedure Manual directives governing the development of claims involving exposure to hazardous chemicals, including Agent Orange. Further, as noted in the 2019 remand, he has also consistently asserted that this disability is the result of various toxic exposures incurred during inactive service in the Air Force Reserves in Southwest Asia theater of operations during the Persian Gulf War, to include anthrax vaccinations, bromide pills, burn pits, from 1983 to 1990. Although the 2021 examiner opined the Veteran's anthrax vaccination is as likely as not the cause of his muscle disorder, the RO denied the claim as he received the vaccination subsequent to his active-duty service. That notwithstanding, concerning the Veteran's alleged service in Southwest Asia, the record specifically shows that the Veteran was transferred to the Air Force Retired Reserves upon release from active duty in 1980 and that he would be in the Reserves until 1990. The Veteran also has consistently stated that he remained in the Air Force Retired Reserves from 1983 to 1990, at which time he worked as a private contractor for the Department of Defense in Saudi Arabia. It was during this time that he incurred exposure to anthrax vaccinations and bromide pills, and thus, he avers that he is entitled to VA compensation and regulatory presumptions for injuries incurred during that time. However, although the Board specifically requested these records in the 2019 remand, the Board notes that the duty to assist was not completed prior to the claim returning to the Board. Rather, although the RO had requested the Veteran's Air Force records, the Board notes that the RO only sent requests to the Air Force Public Affairs office. Both that office and the Veteran specifically reported that there would be no records for the Veteran at that location as he had been on Reserve/inactive duty. There was no development further completed in order to confirm the nature of the Veteran's Air Force Reserve service throughout the 1980's and early 1990's, and the RO instead provided a statement that the records were not available, which is not accurate. Actions to confirm this service and the nature of such are imperative in the present case and MUST be completed. 2. COPD. As for the higher rating for COPD, in the 2019 Board remand, it was noted that the Veteran had a VA examination to determine the frequency and severity of the symptoms attributable to his service-connected COPD in May 2016. In the May 2019 Board hearing, he stated that the disability has worsened since his last VA examination. Further, in an October 2016 statement, the Veteran asserted that the pulmonary functioning testing (PFT) was not undertaken correctly. Following the 2019 Board remand, a May 2021 examination was scheduled to ascertain the current severity of the Veteran's COPD. However, this examination is inadequate for rating purposes. First, the examiner failed to provide an updated PFT but rather simply copied the results from the May 2016 examination. This fails to provide an accurate depiction of the current disability picture, and disregards the Veteran's October 2016 statement that the testing was not undertaken correctly. Because the Board's remand was not complied with, remand for a new examination is necessary. 3. Specially Adapted Housing and Special Home Adaptation Grant The Veteran also claims eligibility for specially adapted housing or a special home adaption grant. A certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.2101(a) may be extended when a veteran is permanently disabled from one of the following conditions which is the result of injury or disease incurred in or aggravated during active military service, or for which a veteran is entitled to receive compensation under 38 U.S.C. § 1151: (1) the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) the loss or loss of use of one lower extremity together with the loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. Here, the Veteran is 100 percent service connected, and has been deemed permanently and totally disabled. First, as a decision on the remanded issue of entitlement to service connection for a muscle disorder could significantly impact a decision on the issue of eligibility for specially adapted home and a special home adaptation grant, the issues are inextricably intertwined. A remand of these claims is therefore also required. Further, the Veteran has not been afforded recent VA examinations to determine the level of pain, weakness, and his ability to ambulate based on his service-connected disabilities. As such, remand is necessary to adequately develop the Veteran's claims for specially adapted housing or a special home adaption grant. In providing an opinion, the examiner is asked to consider VA regulations which state that a "loss of use" exists when there is "deprivation of the ability to avail oneself" of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). The Board will therefore remand these issues to afford the Veteran an opportunity to attend a VA examination that will assess the full severity and symptomatology associated with his service-connected disabilities. Additionally, the examination(s) and medical opinion(s) should also include the combined effect of the Veteran's service-connected disabilities on his ability to use his feet/arms. The matters are REMANDED for the following action: 1. The RO must contact the Defense Finance and Accounting Service, the National Personnel Records Center (NPRC), the Air Force Reserves, and any other appropriate repository and request the Veteran's pay stubs for his service in the Air Force Reserves, including the Retired Reserves, from 1980 to 1990. Attempts to secure the pay stubs should be clearly documented in the file, along with any negative responses. The RO must note that their initial requests were sent to the wrong department as specifically pointed out by both the Veteran and the Air Force office that they sent the letters. The RO must send requests to the proper entity note that the Veteran's military personnel records specifically show he was on inactive Reserves until 1990. 2. Based on the information obtained from the above instructions, the RO must verify the exact dates of each period of ACDUTRA, INACDUTRA, and inactive service during his service in the Air Force Reserves from 1980 to 1990. The AOJ should prepare a summary of this information and associate it with the claims file. 3. Schedule the Veteran for a VA respiratory examination to determine the current severity of his service-connected COPD. The entire claims file must be made available to and reviewed by the examiner in conjunction with the examination, and a complete rationale must be provided for any opinion rendered. All necessary testing must be accomplished, to include pulmonary function tests (PFTs) with pre-bronchodilator and post-bronchodilator FEV-1, FEV-1/FVC, and DLCO (SB) results; if the examiner determines that post-bronchodilator testing should not be done, he or she should clearly state why this is the case. The examiner must note that the May 2016 PFT is inadequate for rating purposes to ascertain the current level of disability as the Veteran has credibly stated his condition has worsened since that time. The examiner must fully describe the frequency and severity of the manifestations of the Veteran's service-connected COPD. If the examiner cannot provide any opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiners shall 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 the particular question. 4. Thereafter, the RO must schedule the Veteran a VA examination to determine the nature and etiology of any neurological and/or muscle disease manifested by diffuse muscle pain and nodules. The complete electronic record must be made available to, and reviewed by, the VA examiner(s) prior to conducting the examination(s). All necessary studies and tests should be conducted. The examiner should review the claims file and then opine as to: (a.) whether it is at least as likely as not (50 percent probability or greater) that the Veteran's muscle disorder had its onset during the Veteran's active-duty service or are otherwise the result of his conceded in-service exposure to herbicide agents (b.) whether it is at least as likely as not (50 percent probability or greater) that the Veteran's muscle disorder had its onset during the Veteran's active-duty service or are otherwise the result of his conceded in-service exposure to asbestos? The examiner is advised that the Veteran is competent to report his symptoms and reported activities and such reports must be considered and compared to other evidence of record. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner is unable to opine without resorting to speculation, he or she should provide a thorough rationale as to why that conclusion was ultimately reached. 5. Then, schedule the Veteran an examination to ascertain the current severity of his service-connected disabilities. The claims file must be made available to the examining clinician in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must address the following: (a.) whether, due to the service-connected disabilities, to include the right upper and right lower extremity radiculopathy and neuropathy and the neck and back disabilities, the Veteran has loss of use of either arm or hand or feet. By VA regulation, a "loss of use" exists when there is "deprivation of the ability to avail oneself" of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). The examiner is asked to answer: (b.) Whether the Veteran has such diminished ability to use his lower extremities/upper extremities that he would be equally or better served by an amputation with prosthesis? (c.) If answered in the negative, the examiner should state in what way(s) the Veteran's remaining functional capacity (e.g. with respect to balance, propulsion, etc.) is superior. (d.) If answered in the positive, the examiner must provide an opinion as to whether any service-connected disability alone is sufficient to result in this level of diminished function (i.e. better served by amputation with use of suitable prosthesis). The examiner should note that the Veteran is service connected for prostatitis, degenerative joint disease of the thoracic and lumbar spines; inflammatory bowel disease/colitis; COPD; degenerative joint disease of the cervical spine; diabetes mellitus type II; arthritis in the left knee; radiculopathy of the left lower extremity; arthritis of the left wrist and left shoulder; swollen and tender lymph glands in the neck; peripheral neuropathy of the left upper extremity and right upper extremity; and peripheral neuropathy of the right lower extremity. He is also service connected but noncompensable with hemorrhoids; left leg scar; appendectomy; left finger and leg cyst excision residuals; and left lower extremity peripheral neuropathy. He has been permanently and totally disabled since August 2007. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner is unable to opine without resorting to speculation, he or she should provide a thorough rationale as to why that conclusion was ultimately reached. 6. After completing the above actions, and any other further development deemed necessary, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.