Citation Nr: 21066759 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-24 449 DATE: November 2, 2021 ORDER Service connection for pneumonia is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected chronic obstructive pulmonary disease (COPD), chronic bronchitis, maxillary sinusitis, pneumonia, tracheobronchomalacia, and/or tinnitus, is remanded. Entitlement to service connection for a skin disability, including skin cancer, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for chronic right bundle branch block, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for atrial dysrhythmia, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for a bladder disability, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for a male reproductive system disability, to include erectile dysfunction and Peyronie's disease, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for a left Achilles tendon tear is remanded. Entitlement to service connection for asthma, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT The evidence as to whether the Veteran's pneumonia is secondary to service-connected maxillary sinusitis is at least in equipoise. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for pneumonia have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from February 1954 to February 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from June 2014 and August 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. This case was previously before the Board in July 2020. The Board denied the Veteran's claims for service connection for pneumonia, sleep apnea, and a right knee disability. The remaining issues were remanded to the agency of original jurisdiction (AOJ) for additional development. The Veteran appealed the July 2020 denials to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied service connection for pneumonia, sleep apnea, and a right knee disability and remanding those issues for readjudication. As to the claims remanded for additional development in the July 2020 Board decision, after taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See June 2021 supplemental statement of the case (SSOC). In August 2021, the Veteran submitted a VA Form 20-0995 (Decision Review Request: Supplemental Claim) that included the matter of his entitlement to service connection for sleep apnea. In doing so, the Veteran did not check the box on the form indicating a desire to opt that issue into the Appeals Modernization Act review system. In addition, the submission was received more than 60 days after issuance of the June 2021 SSOC. Under the circumstances, the Board finds that the issue properly remains on appeal in the legacy system. Entitlement to service connection for pneumonia. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, there is no dispute that the Veteran was diagnosed with pneumonia during the period on appeal. See, e.g., August 2019 VA examination (describing the condition as chronic intermittent pneumonia). In addition, he is presently service connected for maxillary sinusitis. In February 2010, the Veteran's treating physician, Dr. R.M., discussed the treatment history and severity of the Veteran's sinusitis. In a reasoned opinion, Dr. R.M. stated, "His chronic sinus problems have affected his lungs and have caused bronchitis and bronchial pneumonia." The Board finds that the evidence supports the Veteran's claim. The February 2010 opinion from Dr. R.M. was made with an awareness of the Veteran's medical history and is supported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). As such, it is entitled to significant probative weight. The Board is cognizant of the fact that an August 2019 VA examiner provided a negative nexus opinion. However, that examiner opined that the Veteran's pneumonia was not directly related to service. No opinion as to secondary service connection was provided. In light of the foregoing, the Board finds that the pneumonia noted during the appeal period is related to the Veteran's service-connected maxillary sinusitis. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appeal of this issue is granted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected COPD, chronic bronchitis, maxillary sinusitis, tracheobronchomalacia, pneumonia, and/or tinnitus, is remanded. In the JMPR filed with the Court, the parties to the appeal agreed that the Board erred by not ensuring that VA afforded the Veteran an adequate medical opinion regarding his right knee disability. Specifically, the parties agreed that an August 2019 VA examiner failed to address the Veteran's credibly reported in-service right knee symptoms, his right knee symptoms right after service, and his continuing right knee symptoms since service. The parties to the JMPR also found that the Board erred in adjudicating the sleep apnea claim by not providing adequate reasons and bases. Specifically, the parties agreed that the Board failed to address whether a new medical opinion was warranted to determine whether any service-connected respiratory condition aggravated sleep apnea, under circumstances where the August 2019 examiner did not address the matter. In light of the points agreed upon in the JMPR, the Board finds that additional development to obtain new medical opinions is required. In doing so, the Board acknowledges that the Veteran underwent a new sleep apnea examination in September 2021. However, the medical opinion obtained in September 2021, like the August 2019 opinion, is not sufficient to comply with the terms of the JMPR. The September 2021 opinion did not provide any opinion with respect to whether the Veteran's sleep apnea was secondary to his sinusitis and did not set out any reasoned analysis on the question of whether any other service-connected respiratory condition aggravated sleep apnea. 3. Entitlement to service connection for a skin disability, including skin cancer, to include as due to exposure to herbicide agents, is remanded. 4. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded. 5. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded. 6. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded. 7. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded. The Board finds deficiencies in May and June 2021 VA medical opinions regarding the Veteran's claimed disabilities. As to the skin disability, the examiner opined that the Veteran's current skin disability was less likely than not related to his conceded in-service exposure to Agent Orange. The examiner reasoned that there was no correlation between the Veteran's current rashes and herbicide exposure. In so doing, however, the examiner did not comment on the medical significance, if any, of the lesions the Veteran developed during service. See January 1958 service treatment record (STR). As for the claimed peripheral neuropathy, the examiner opined that the current peripheral neuropathy of the upper and lower extremities was less likely than not related to herbicide exposure. The examiner's rationale was that if the neuropathy had to be present within one year of service, it could not be related to herbicide exposure. In arriving at that conclusion, the examiner did not comment on the medical significance, if any, of the Veteran's various in-service complaints of pain and weakness in the left arm and legs or radicular neuralgia around the left thorax. See January 1958 STR (radicular neuralgia around the left thorax); September 1967 STR (pain in left arm); February 1970 STR (pain in left shoulder, weakness in left arm); August 1972 STR (pain in both knees); and January 1974 STR (pain in left shoulder). Under the circumstances, new opinions are required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 8. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. As to hypertension, the 2021 examiner opined that the Veteran's hypertension was less likely than not related to his exposure to herbicides. In doing so, the examiner cited to medical literature setting out the common etiologies of hypertension and found that Agent Orange was not among the causes. However, the examiner did not provide any further rationale or comment on the significance of Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS), which found "sufficient evidence" of an association for hypertension and monoclonal gammopathy of undetermined significance (MGUS) and exposure to Agent Orange and other herbicides used during the Vietnam War. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and tactical herbicide exposure. Because the examiner's opinion is insufficient, a new medical opinion must be obtained. 9. Entitlement to service connection for chronic right bundle branch block, to include as due to exposure to herbicide agents, is remanded. 10. Entitlement to service connection for atrial dysrhythmia, to include as due to exposure to herbicide agents, is remanded. As to claimed heart conditions, the 2021 examiner opined that the Veteran's conditions were less likely than not related to his exposure to herbicides. In doing so, the examiner cited to medical literature setting out the common etiologies of the condition and found that Agent Orange was not among the causes. However, the examiner did not provide an any further rationale or comment on the reports of chest pain during service. See January 1958 STR (occasional sharp precordial chest pain); March 1970 STR (chest pain on and off past year); June 1972 STR (history of pains in left chest); November 1973 retirement examination (noting pain or pressure in chest). Because the examiner's opinion is insufficient, a new medical opinion must be obtained. 11. Entitlement to service connection for a bladder disability, to include as due to exposure to herbicide agents, is remanded. 12. Entitlement to service connection for a male reproductive system disability, to include erectile dysfunction and Peyronie's disease, to include as due to exposure to herbicide agents, is remanded. The Veteran has advanced the theory that his bladder disability is related to his service-connected lumbosacral strain. See June 2014 correspondence. To date, no medical opinion has been obtained regarding secondary service connection. As such, additional development is necessary. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The issue of entitlement to service connection for a male reproductive system condition is inextricably intertwined with the claim for service connection for a bladder disability, as the Veteran has asserted that his erectile dysfunction is related to the claimed bladder disability. See April 2020 correspondence. As such, the claim for service connection for a male reproductive system condition will be remanded as well. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). 13. Entitlement to service connection for a left Achilles tendon tear is remanded. The Veteran seeks to establish service connection for a left Achilles tendon tear, contending that such disability is related to medications prescribed for his service-connected COPD, bronchitis, and tracheobronchomalacia. See April 2020 correspondence. Pursuant to the July 2020 Board remand, a VA examiner opined in May 2021 that the left Achilles tendon tear was less likely than not related to service. In doing so, he indicated that the Veteran "was taking Levaquin frequently for lung infections and this could class of drug is known to cause Achilles' tendon tears." In a June 2021 addendum, however, the examiner indicated that he was mistaken and opined that no lung condition of any type could affect the Achilles tendon. The Board finds this opinion to be insufficient for adjudication purposes, as the examiner failed to address the aggravation prong of secondary service connection. See Allen v. Brown, 7 Vet. App. 439 (1995). Additionally, while the examiner concluded that no lung condition itself could cause an Achilles tendon tear, he did not clarify whether medications taken for a lung condition could cause an Achilles tear. Under the circumstances, a new opinion is required. 14. Entitlement to service connection for asthma, to include as due to exposure to herbicide agents, is remanded. In regard to the claim for asthma, the May 2021 examiner opined that there was no current diagnosis of asthma; rather, he indicated that a pulmonology work-up shows tracheobronchial malacia which could mimic asthma, but since he was not using an inhaler, he did not have asthma. The opinion is inadequate as it does not reconcile this finding with other VA and private treatment records showing a diagnosis of asthma. See Barr, supra. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's right knee disability. The electronic claims file must be made available to the examiner for review. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any diagnosed right knee disability had its onset in, or is otherwise attributable to, the Veteran's periods of active service. In so doing, the examiner should discuss the Veteran's credibly reported in-service right knee symptoms, his right knee symptoms right after service, and his continuing right knee symptoms since service. See February 1974 VA Form 21-526e; December 1974 VA general medical examination; January 2015 statement. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 3. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's sleep apnea. The electronic claims file must be made available to the examiner for review. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's sleep apnea has been (a) caused or (b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by any of his service-connected respiratory disorders (which now include COPD, chronic bronchitis, maxillary sinusitis, pneumonia, and tracheobronchomalacia) or by his service-connected tinnitus. In so doing, the examiner should discuss the medical literature the Veteran's representative has cited in support of the contention that sinusitis can aggravate sleep apnea. See December 2017 Informal Hearing Presentation. The examiner should also discuss the material of record, marked as received in August 2021, entitled, "Veteran Disability and Long Term Disability Lawyer," which indicates that there may be a link between tinnitus and sleep apnea. The Board notes that secondary service connection does not require permanent worsening of the secondary condition; rather, any incremental increase in disability is sufficient, regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 4. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's skin disability. The electronic claims file must be made available to the examiner for review. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any diagnosed skin disability had its onset in, or is otherwise attributable to, the Veteran's periods of active service, to include as due to his presumed exposure to herbicide agents. In so doing, the examiner should discuss the medical significance, if any, of the lesions the Veteran developed during service. See January 1958 STR. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 5. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's bilateral upper and lower extremity peripheral neuropathy. The electronic claims file must be made available to the examiner for review. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any currently diagnosed upper and/or lower extremity peripheral neuropathy had its onset in, or is otherwise attributable to, the Veteran's periods of active service, to include as due to his presumed exposure to herbicide agents. In so doing, the examiner should discuss the medical significance, if any, of the Veteran's various in-service complaints of pain and weakness in the left arm and legs and radicular neuralgia around the left thorax. See January 1958 STR (radicular neuralgia around the left thorax); September 1967 STR (pain in left arm); February 1970 STR (pain in left shoulder, weakness in left arm); August 1972 STR (pain in both knees); and January 1974 STR (pain in left shoulder). The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 6. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's hypertension. The electronic claims file must be made available to the examiner for review. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any currently diagnosed hypertension had its onset in, or is otherwise attributable to, the Veteran's periods of active service, to include as due to his presumed exposure to herbicide agents. In so doing, the examiner must address the NAS finding that there is "sufficient" evidence of an association between exposure to herbicide agents and hypertension. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 7. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's heart disorders, to include atrial dysrhythmia and chronic right bundle branch block. The electronic claims file must be made available to the examiner for review. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any currently diagnosed heart disability, to include atrial dysrhythmia and chronic right bundle branch block, had its onset in, or is otherwise attributable to, the Veteran's periods of active service, to include as due to his presumed exposure to herbicide agents. In so doing, the examiner should discuss the medical significance, if any, of the Veteran's reports of chest pain during service. See January 1958 STR (occasional sharp precordial chest pain); March 1970 STR (chest pain on and off past year); June 1972 STR (history of pains in left chest); November 1973 retirement examination (noting pain or pressure in chest). The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 8. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's bladder disability. The electronic claims file must be made available to the examiner for review. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any currently diagnosed bladder disability has been (a) caused or (b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected lumbosacral strain and/or dorsal osteoarthritis. The Board notes that secondary service connection does not require permanent worsening of the secondary condition; rather, any incremental increase in disability is sufficient, regardless of its permanence. See Ward v. Wilkie, supra. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 9. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's left Achilles tendon tear. The electronic claims file must be made available to the examiner for review. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any left Achilles tendon tear has been (a) caused or (b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected COPD, chronic bronchitis, pneumonia, and tracheobronchomalacia, to include medications prescribed therefor. The Board notes that secondary service connection does not require permanent worsening of the secondary condition; rather, any incremental increase in disability is sufficient, regardless of its permanence. See Ward v. Wilkie, supra. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 10. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's asthma. The electronic claims file must be made available to the examiner for review. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has had asthma at any time since June 2014 (when he filed his claim for service connection) and, if so, whether it is also at least as likely as not that asthma had its onset in, or is otherwise attributable to, the Veteran's periods of active service, to include as due to his presumed exposure to herbicide agents. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 11. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a SSOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.