Citation Nr: 21065362 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-40 576 DATE: October 26, 2021 REMANDED Entitlement to service connection for a cardiovascular disorder is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for bowel incontinence is remanded. Entitlement to an evaluation in excess of 40 percent for resection of the large intestine is remanded. Entitlement to an evaluation in excess of 20 percent for right ankle disability is remanded. Entitlement to a compensable evaluation for right ankle scar is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active service from March 1981 to March 1985 and from June 1985 to October 1992. The Veteran testified at a hearing before the undersigned in February 2021. A transcript of the hearing has been associated with the file. At the hearing the Veteran reported that his intestinal disability prevented him from working a full-time job. As such, a claim for TDIU has been raised and is part of the increased ratings on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue has been included above. Additional evidence added to the record, including VA treatment records, has not been addressed in a Supplemental Statement of the Case (SSOC). As the claims are being remanded for additional development, this evidence will be considered in a SSOC. 38 C.F.R. §§ 19.31, 19.37. 1. Entitlement to service connection for a cardiovascular disorder is remanded. 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to service connection for a right hip disability is remanded. 4. Entitlement to service connection for a left hip disability is remanded. 5. Entitlement to service connection for a right knee disability is remanded. 6. Entitlement to service connection for a left knee disability is remanded. 7. Entitlement to service connection for bowel incontinence is remanded. The claims must be remanded to obtain outstanding treatment records and adequate medical opinions. At the hearing, the Veteran and his representative argued that the claims were actually for all joints of the lower extremities, that the disabilities were related to his Gulf War service, and that they are related directly to his active service. The representative also argued that the disabilities could be characterized as chronic fatigue syndrome or fibromyalgia and that the Veteran's claimed cardiac disability is actually a respiratory disability as a symptom of his service in the Persian Gulf. These disabilities were not considered on previous VA examinations. The Veteran's representative further argued that his service-connected right ankle disability impacted his other orthopedic disabilities. The Veteran's representative has argued that the Veteran's cardiovascular disability may be related to exposure to asbestos in service and identified medical literature. It was noted at the hearing that exposure to asbestos has been conceded. Finally, it is was argued that the Veteran's bowel incontinence was a component of the Veteran's service-connected intestinal disability. After the hearing, the representative submitted medical articles for consideration. The Veteran was afforded VA examinations in July 2017; however, the opinions provided are not adequate. The examination reports do not discuss whether the Veteran has a cardiovascular disability related to any exposure to asbestos in service, do not discuss whether the orthopedic disabilities are due to physical activity in service or related to his service-connected right ankle disability, and do not consider whether the disabilities represent chronic fatigue syndrome and/or fibromyalgia. Although the intestine examination identifies incontinence, it is unclear whether the Veteran has any bowel incontinence disability separate from his service-connected intestinal disability. The examination on remand should identify all lower extremity muscle and joint disabilities, and respiratory disability, and render an opinion regarding whether any identified disability is related to any exposure during service in the Persian Gulf and/or exposure to asbestos. November and December 2015, and April and September 2017 VA treatment records indicate that outside medical records were associated with the Veteran's record, including orthopedic treatment records, and records from Cape Fear Cardiology. An October 2019 VA treatment record identifies that an emergency room note from South Georgia Medical Center was scanned into the Veteran's record. A January 2020 VA treatment record identifies that an emergency room note from Brooks County Hospital was scanned into the Veteran's record. Review of the claims file does not show these treatment records. On remand, attempts must be made to obtain all treatment records regarding the Veteran that are scanned into CPRS and VISTA Imaging. See 38 C.F.R. § 3.159. The Veteran receives consistent treatment from VA. However, the last records associated with the file are dated in March 2021. Any subsequent treatment records should be obtained. 8. Entitlement to an evaluation in excess of 40 percent for resection of the large intestine is remanded. The claim must be remanded to obtain a current examination because the Veteran testified that his disability has worsened since the last examination in July 2017. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121 (1991). At the 2017 examination, the Veteran reported that he had occasional incontinence due to urgency, and stools were loose, frequent and several times a day. The examiner characterized the symptoms as moderate. At the recent hearing, the Veteran testified that his leakage, involuntary bowel movements, and incontinence caused him to almost have no daily activities. He restricted his eating and the symptoms impacted his ability to work. 9. Entitlement to an evaluation in excess of 20 percent for right ankle disability is remanded. 10. Entitlement to a compensable evaluation for right ankle scar is remanded. The claims must be remanded to obtain a current examination because the Veteran testified that his disabilities have worsened since the last examination in July 2017. Id. At that time, the examiner reported that the Veteran had stress fracture of the right lower leg, that his ankle had loss of strength and sometimes had limited weight bearing due to pain. The examiner identified the Veteran's scar but did not identify any physical findings of pain or instability. At the hearing, the Veteran said he had an impairment with the tibiofibular joint and had malunion and numbness and tingling in the scar. 11. Entitlement to a TDIU due to service-connected disabilities is remanded. A remand of the claim for TDIU is required as inextricably intertwined with the remanded claims. To date he has not submitted a VA Form 21-8940, Application for TDIU. On remand, he should be asked again to submit the completed form. The matters are REMANDED for the following action: 1. Take all appropriate action to associate with the claims file all outside treatment records scanned into CPRS and VISTA Imaging, including records from Cape Fear Cardiology, South Georgia Medical Center, and Brooks County Hospital. 2. Obtain and associate with the claims file the Veteran's VA treatment records for the period from March 2021 to the present. 3. Ask the Veteran to complete a VA Form 21-4142 for all private providers, including Cape Fear Cardiology, South Georgia Medical Center, and Brooks County Hospital. Make two requests for the authorized records from all private providers unless it is clear after the first request that a second request would be futile. 4. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 5. Thereafter, schedule the Veteran for examinations (or telehealth interviews, review of the records, etc., if in-person examinations are not feasible) to determine the nature and etiology of any cardiovascular, bowel incontinence, back, right hip, left hip, right knee, left knee, and any other lower extremity disabilities found to be present. Copies of all pertinent records must be made available to the examiners for review. Based on the examinations and reviews of the record, the examiners must answer the following: (a) Identify all lower extremity joint disabilities. (b) Identify whether the Veteran's lower extremity disabilities represent chronic fatigue syndrome and/or fibromyalgia. (c) Identify whether the Veteran has a respiratory disability that is separate from or a symptom of a cardiovascular disability. (c) Identify all bowel incontinence disabilities and opine whether they represent separate disabilities or symptoms of the Veteran's service-connected intestinal resection. (d) Is it at least as likely as not that any diagnosed cardiovascular, back, right hip, left hip, right knee, left knee, and any other lower extremity disabilities, as well as any separate respiratory disability and bowel incontinence disabilities found to be present are related to an in-service injury, event, or disease? In rendering the opinions the examiner must comment on the medical articles of record and the Veteran's reported exposure to asbestos in service. (b) Is it at least as likely as not that any diagnosed back, right hip, left hip, right knee, left knee, and any other lower extremity disabilities found to be present is (i) caused by or (ii) aggravated by any service-connected disability, including the right ankle disability? Aggravation here is defined as any increase in disability. A complete rationale should be provided for all opinions expressed. 6. Thereafter, schedule the Veteran for examinations (or telehealth interviews, review of the records, etc., if in-person examinations are not feasible) by appropriate clinicians to determine the current severity of his residuals of resection of the large intestine, right ankle disability, and right ankle scar. The examiners should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The examiner must complete the corresponding VA disability benefits questionnaire (DBQ), provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must test the Veteran's right ankle in active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the resection of the large intestine and right ankle alone and discuss the effect of the disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.