Citation Nr: 21067001 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-35 514 DATE: November 3, 2021 REMANDED Entitlement to service connection for cyst on back is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for cranial hemorrhage is remanded. REASONS FOR REMAND The Veteran served on active duty service from June 1967 to January 1969, including service at the Korean Demilitarized Zone in a unit that is presumed to have been exposed to herbicide agents. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at a February 2021 virtual Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. These matters were remanded by the Board in April 2021 for additional evidentiary development. A review of the electronic claims file reveals that the VA medical opinions that were obtained are incomplete and do not substantially comply with the Board's April 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the claims must be remanded for corrective action. 1. Entitlement to service connection for cyst on back is remanded. In the April 2021 decision, the Board acknowledged the Veteran's competent and credible lay reports that he had a cyst on his back. The Board remanded the claim for a VA examination to determine whether the Veteran's back cyst constituted a valid clinical diagnosis for VA compensation purposes, and if so, whether the disability was the result of his presumed in-service exposure to herbicide agents. At the February 2021 Board hearing, the Veteran testified that he developed a back cyst around the age of 40, which was clinically diagnosed 4 or 5 years ago, and surgically removed. He testified that another cyst developed after the surgical removal. The Veteran was afforded a VA examination in June 2021 to assess the nature and severity of his claimed disability. The Veteran told the VA examiner that he first noticed a lump on his back in 2015, and it was removed in 2018. The VA examiner confirmed that the Veteran was status post benign lipoma removal, resulting in a 3 x 0.2 cm scar on the mid back. Contrary to the Veteran's allegations, the VA examiner found no evidence of cyst reoccurrence. The VA examiner concluded that the Veteran's cyst disability was fully resolved, and as such, she declined to answer the Board's medical questions. However, the current disability element of a service connection claim is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of the claim, even if the disability has since resolved. See McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). As the VA examiner failed to address whether the Veteran's back cystwhich was present during the appellate period prior to its removalwas etiologically related to his presumed herbicide agent exposure, the claim must be remanded to obtain an addendum VA medical opinion addressing this inquiry. To aid the VA examiner in assessing the nature of the Veteran's back cyst disability, the RO is requested to contact the Veteran and solicit information regarding any outstanding medical records relevant to the Veteran's back cyst disability, to include the records from the provider who excised his mid back benign lipoma in 2018. 2. Entitlement to service connection for a heart disability is remanded. In the April 2021 decision, the Board remanded this claim for a VA examination to determine whether the Veteran's mild aortic calcification medically constituted ischemic heart disease, and if not, whether this condition (and any other cardiac condition diagnosed by the VA examiner) was etiologically related to the Veteran's conceded in-service herbicide agent exposure. A June 2021 VA examiner opined that the Veteran's mild aortic calcification did not qualify as ischemic heart disease within the generally accepted medical definition. The VA examiner explained that ischemic heart disease is a condition of recurring chest pain or discomfort that occurs when a part of the heart does not receive enough blood. This condition occurs most often during exertion or excitement when the heart requires greater blood flow. The VA examiner explained that mild aortic calcification is often asymptomatic, and there was no evidence that the Veteran's mild calcification was causing any disruption of blood flow to the heart. This explanation resolves the issue of whether the Veteran's mild aortic calcification is a form of ischemic heart disease. The VA examiner was requested to address whether the Veteran's mild aortic calcification was etiologically related to his in-service herbicide agent exposure. In answering this question, the VA examiner merely stated that there is no evidence that aortic calcification is due to herbicide agent exposure, as it is not a form of ischemic heart disease. In addition to being wholly conclusory, this medical opinion is insufficient for adjudicative purposes because the examiner failed to consider whether the Veteran's current cardiac disability was etiologically related to his active duty, irrespective of the presumptive service connection conditions set forth in 38 C.F.R. § 3.309(e). Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The claim must be remanded for an addendum VA medical opinion that fully addresses this theory of entitlement. At the June 2021 VA examination, the Veteran was diagnosed with atherosclerotic heart disease due to elevated lipids. The VA examiner stated that the date of diagnosis was 2015, although it is unstated how she reached this conclusion. The VA examiner indicated that this disability was not a form of ischemic heart disease; however, this statement is in direct conflict with the provisions of 38 C.F.R. § 3.309(e) which explicitly lists atherosclerotic heart disease as a form of ischemic heart disease. The Board has fully reviewed the electronic claims file and finds no further reference to atherosclerotic heart disease in the Veteran's treatment records during the pendency of the appeal. A private record from December 2013 contains chest radiograph results, where the impression was no acute cardiopulmonary disease, but someone handwrote on the printed medical record, "min ASHD" which could be a reference to atherosclerotic heart disease. This record is of no probative value, given that it predates the appeal period by nearly 2 years, it is unclear what ASHD actually refers to, and it is unclear why the record contains a handwritten annotation describing ASHD when the printed impression was no acute cardiopulmonary disease. Furthermore, a facial review of this record clearly contains two different types of handwriting. These evidentiary issues render the medical record of null probative value in this appeal. As the record contains no clear evidence of a diagnosis of atherosclerotic heart disease in the treatment records covering the pendency of the claim, and the June 2021 VA examination report is confusing and conflicting, to the extent that the VA examiner simultaneously diagnosed atherosclerotic heart disease (a form of ischemic heart disease pursuant to regulation), but denied the presence of any cardiac disabilities constituting ischemic heart disease, the Board finds that a remand is appropriate for further analysis on whether the Veteran has experienced ischemic heart disease during the period on appeal. To aid the VA examiner in assessing the nature of the Veteran's current cardiac disability, the RO is requested to contact the Veteran and solicit information regarding any outstanding medical records relevant to the Veteran's heart disability. 3. Entitlement to service connection for vertigo is remanded. In the April 2021 decision, the Board remanded the claim seeking entitlement to service connection for vertigo for a VA examination to assess whether the Veteran's credibly and competently reported symptoms of dizziness and balance issues constituted a valid clinical diagnosis, and if so, whether the disability was the result of in-service exposure to herbicide agents or proximately due to, the result of, or aggravated by the Veteran's service-connected bilateral hearing loss and tinnitus. The Veteran attended a VA examination in June 2021, where he was diagnosed with benign paroxysmal positional vertigo. The Veteran told the VA examiner that he experienced issues with bumping into objects and furniture, and he could not turn his head while walking without getting dizzy and losing balance. The VA examiner explained that the Veteran's symptoms of dizziness, balance issues, and disequilibrium supported the diagnosis of benign paroxysmal positional vertigo and limited his ability to bend, stand up quickly, lift heavy objects, operate machinery, and turn his neck quickly. This explanation favorably resolves the issue of whether the Veteran has experienced a current disability of vertigo for VA compensation purposes. Regarding the contention that the Veteran's vertigo was secondary to his service-connected bilateral hearing loss and tinnitus under 38 C.F.R. § 3.310, the VA examiner issued a negative nexus opinion, stating that the Veteran's vertigo appears to be positional, which has no bearing on the hearing loss or tinnitus he suffers from, which is constant. The Board finds this medical opinion to be incomplete, insofar as it is conclusory and not fully articulated. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The VA examiner failed to provide any in-depth explanation as to why bilateral hearing loss or tinnitus are unrelated to positional vertigo, or why these service-connected disabilities cannot medically cause or aggravate his symptoms of dizziness and disequilibrium. Regarding the contention that the Veteran's vertigo may be related to the Veteran's conceded in-service exposure to herbicide agents, the VA examiner issued a negative nexus statement simply opining that there is no evidence to link the Veteran's vertigo to herbicide agent exposure. It is unclear whether the VA examiner meant that the electronic claims file lacked evidence linking vertigo to herbicide agent exposure, or whether the medical community, at large, has found no association between vertigo and herbicide agent exposure. The VA examiner's opinion is wholly conclusory and insufficient for adjudicative purposes. See Stefl, 21 Vet. App. at 125 ("[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion."). Based on the foregoing, the Board finds that the Veteran's claim seeking entitlement to service connection for vertigo must be remanded to obtain an addendum VA medical opinion that fully and adequately addresses whether the Veteran's vertigo is secondary to his service-connected bilateral hearing loss and tinnitus under 38 C.F.R. § 3.310 or whether it is caused by his conceded in-service herbicide agent exposure. 4. Entitlement to service connection for cranial hemorrhage is remanded. In April 2021, the Board remanded the claim seeking entitlement to service connection for cranial hemorrhage for a VA examination to investigate the Veteran's claims that this disability arose as a result of a fall alleged to have been caused by the Veteran's yet-to-be service-connected vertigo and/or his service-connected bilateral hearing loss and tinnitus. The June 2021 VA examiner opined that based on the Veteran's medical history it was at least as likely as not that his diagnosed vertigo contributed to the March 2014 fall from his bed, which resulted in a cranial hemorrhage. The Board finds this opinion to be persuasive given the Veteran's compelling hearing testimony that balance issues resulted in the fall that caused his cranial hemorrhage. As the Veteran is not yet service-connected for vertigo, this claim seeking entitlement to service connection for cranial hemorrhage is remanded as inextricably intertwined with the vertigo claim. The June 2021 VA examiner also opined that based on the Veteran's medical history it was less likely than not that his service-connected bilateral hearing loss and tinnitus contributed to the Veteran's March 2014 fall from his bed, which resulted in a cranial hemorrhage. The VA examiner's opinion was conclusory, insofar as she failed to sufficiently explain why the Veteran's service-connected bilateral hearing loss and tinnitus could not have resulted in the balance issues and disequilibrium that precipitated his fall. As such, the claim is remanded for an addendum opinion that more appropriately considers this allegation. The Board has declined to seek opinions based on an secondary service connection aggravation theory, as it does not make logical sense that a medical condition could aggravate a fall (i.e., a physical force from outside of the body). Lastly, the RO is requested to obtain any additional VA treatment records from March 2020 to the present. 38 C.F.R. § 3.159(c)(2) and (3). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2020 to the present. 2. Contact the Veteran and request that he identify any outstanding medical treatment records relevant to his claims, to include those discussing his heart condition and the removal of his benign lipoma on the back in 2018. If the Veteran is able to identify the custodian of these records, and provides the requisite authorization, the RO should undertake reasonable efforts to obtain these outstanding treatment records. These efforts should include at least one follow-up request if the records are not received, or a finding that a follow-up request would be futile, as well as the required notice to the Veteran and his representative. 3. To the extent possible, the below referenced addendum medical opinions should be completed by an appropriate VA examiner other than the individual who conducted the June 2021 VA examinations. 4. Obtain an addendum VA medical opinion addressing the etiology of the Veteran's benign lipoma on the back, which was removed in 2018 according to the Veteran's lay reports. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiry: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's benign lipoma of the back, which was excised in 2018 according to the Veteran's lay reports, is the result of the Veteran's in-service exposure to herbicide agents? The examiner is advised that simply stating that a back cyst/lipoma is not on the list of diseases presumptively associated with herbicide agent exposure is not a sufficient rationale for a negative opinion. 5. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the etiology of the Veteran's current cardiac disability. The need for an additional in-person examination shall be left to the discretion of the VA examiner. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) During the appellate period, is it at least as likely as not (50 percent probability or greater) that the Veteran has suffered from some form of ischemic heart disease? In answering this question, the VA examiner is requested to reconcile the conflict in the June 2021 VA examination report. Despite no reference to atherosclerotic heart disease in the Veteran's treatment records during the appeal period, the VA examiner diagnosed the Veteran with atherosclerotic heart disease (a form of ischemic heart disease under 38 C.F.R. § 3.309(e)), but simultaneously stated that the Veteran did not experience any cardiac disabilities that constituted ischemic heart disease. (b.) If the Veteran has not suffered from any form of ischemic heart disease during the appellate period, is it at least as likely as not (50 percent probability or greater) that the Veteran's mild aortic calcification (or any other diagnosed cardiac disability) is the result of presumed in-service herbicide agent exposure? The examiner is advised that simply stating that mild aortic calcification is not on the list of diseases presumptively associated with herbicide agent exposure is not a sufficient rationale for a negative opinion. 6. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the etiology of the Veteran's diagnosed vertigo disability. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's benign paroxysmal positional vertigo is the result of in-service exposure to herbicide agents? The examiner is advised that simply stating that vertigo is not on the list of diseases presumptively associated with herbicide agent exposure is not a sufficient rationale for a negative opinion. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's benign paroxysmal positional vertigo is proximately due to, the result of, or aggravated by (i.e., underwent any incremental increase in disability, regardless of its permanence) the Veteran's service-connected bilateral hearing loss and tinnitus? 7. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the etiology of the Veteran's cranial hemorrhage. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiry: (a.) Is it at least as likely as not (50 percent probability or greater) that the fall that resulted in the Veteran's cranial hemorrhage was proximately due to his service-connected bilateral hearing loss and tinnitus? In answering this question, the VA examiner is requested to address whether there is any medical basis to support the allegation that bilateral hearing loss and tinnitus can result in balance problems or disequilibrium in the Veteran's case. 8. The RO is requested to ensure that all medical opinions are supported by a complete explanatory rationale based on the respective VA examiner's medical expertise; the VA examiner's clinical experience; current medical principles; and citations to the record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.