Citation Nr: 21069835 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-31 792 DATE: November 19, 2021 REMANDED Entitlement to service connection for a pulmonary disorder (claimed as chronic obstructive pulmonary disease (COPD)) is remanded. Entitlement to service connection for bilateral hip/thigh disability (claimed as a pelvic injury and right thigh fracture) is remanded. Entitlement to service connection for bilateral foot disability is remanded. Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for bilateral upper extremity nerve disorder is remanded. Entitlement to a separate disability rating for left lower extremity radiculopathy associated with the service-connected lumbar spine disability is remanded. Entitlement to a total evaluation based on individual unemployability (TDIU), to include consideration of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1978 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision. In February 2019, the Board remanded this matter for further development. REASONS FOR REMAND 1. Entitlement to service connection for a pulmonary disorder (claimed as COPD) is remanded. 2. Entitlement to service connection for bilateral hip/thigh disability (claimed as a pelvic injury and right thigh fracture) is remanded. 3. Entitlement to service connection for bilateral foot disability is remanded. 4. Entitlement to service connection for cervical spine disability is remanded. 5. Entitlement to service connection for bilateral upper extremity nerve disorder is remanded. 6. Entitlement to a separate disability rating for left lower extremity radiculopathy associated with the service-connected lumbar spine disability is remanded. 7. Entitlement to a TDIU, to include consideration of SMC pursuant to 38 U.S.C. § 1114(s), is remanded. These matters must be remanded to obtain potentially relevant records from the Social Security Administration (SSA). Review of the Veteran's claims file shows that the Veteran is in receipt of SSA disability. See May 2012 determination; March 2017 VA Psychiatric Examination. Although the SSA disability determination is in the claims file, the underlying medical records (which reference conditions now on appeal according to the descriptions in the determination) are not. These records should be obtained. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Pulmonary Disorder The Veteran seeks service connection for a pulmonary disorder and received treatment for chest pain and coughing up blood in service. In February 2019, the Board remanded to obtain VA medical opinion regarding whether the Veteran has a current pulmonary or respiratory disability incurred in service or related to service. The examiner was specifically asked to opine as to whether the Veteran has asthma given notations of a history of asthma/COPD in current treatment records and an assessment of asthma during service. A September 2019 VA contract examiner diagnosed the Veteran with COPD and restrictive lung disease secondary to obesity and opined that these conditions are less likely than not incurred in or related to service, to include the in-service chest pain and coughing up blood. The examiner explained that the Veteran's COPD is most likely due to his smoking history and that his restrictive lung disease is secondary to his obesity. The examiner explained that the August 1980 in-service complaint was attributed to asthma, which is not a current condition and that another in-service complaint was attributed to pharyngitis and rhinitis with epistaxis. Although the September 2019 VA contract examiner found no current asthma diagnosis, the Veteran has been treated for asthma exacerbations during the claim period. See March 2019 VA Treatment Record (noting Veteran's emergency room treatment for COPD and asthma exacerbations). VA treatment records note a history of chronic COPD, asthma, and bronchitis and the Veteran was also treated for a bronchitis exacerbation during the claim period. See March 2019 VA Treatment Record. The VA contract examiner did not address these asthma and bronchitis exacerbations within the claim period. Accordingly, remand is appropriate to obtain additional VA medical opinion. As the COPD and restrictive lung disease opinion relies in part on the lack of a current asthma diagnosis, an addendum opinion should be obtained considering the full factual picture. Bilateral Hip/Thigh The Veteran seeks service connection for bilateral hip/thigh disability, asserting that such disability is related to a reported right thigh fracture in 1979 and a pelvic injury in 2001 (which would be after service). In February 2019, the Board remanded to obtain VA medical opinion regarding whether the Veteran has a current hip/thigh disability that was incurred in service, is related to service, or is secondary to his service-connected lumbosacral spine disability. The Veteran underwent VA contract examination in September 2019. The VA contract examiner noted trochanteric pain syndrome, avascular necrosis of the right hip, and right hip core decompression surgery. The VA contract examiner opined that the Veteran's hip disability is less likely than not due to or aggravated by his lumbosacral spine disability. The VA contract examiner explained that the bilateral trochanteric pain syndrome is due to inflammation of the trochanteric bursa due to overuse. The VA contract examiner also explained that a pelvic injury (which the Veteran reported was incurred in service) was the most likely cause for his avascular necrosis and resulting decompression surgery. The VA contract examiner did not provide an adequate rationale for the opinion that the Veteran's current avascular necrosis and resulting decompression surgery are related to an in-service injury where the Veteran landed on his buttocks. The VA contract examiner also did not opine as to whether the Veteran's other hip disability (trochanteric pain syndrome) had an onset in service or is related to service, to include addressing in-service complaints, as directed in the February 2019 Board remand. Accordingly, remand is appropriate to obtain additional medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, while the Veteran's later service treatment records note that the Veteran fell and received treatment in February 1976, the February 1967 service treatment records are not in the claims file. While this matter is on remand, any appropriate efforts should be made to obtain these records. Bilateral Foot Disability The Veteran seeks service connection for bilateral foot disability, asserting that such disability is related to service. In February 2019, the Board remanded to obtain VA medical opinion regarding whether the Veteran's bilateral foot disability was incurred in service, is related to service, or is secondary to his service-connected lumbosacral spine disability. The Veteran underwent VA contract examination in September 2019. The VA contract examiner noted no feet diagnoses. The VA contract examiner opined that it is less likely than not the Veteran had a foot disability due to or aggravated by his service-connected lumbosacral spine disability because there was no evidence of a current foot disorder found on examination. However, a January 2020 VA treatment record shows several diagnoses for the Veteran's feet, including bilateral pes planus and peripheral neuropathy related to radiculopathy. As noted in the February 2019 Board remand, a June 2013 VA treatment record noted acquired deformities of the foot and indicated that the Veteran's foot pain was probably related to his lower back pain. Accordingly, remand is appropriate to obtain further VA medical opinion regarding whether the Veteran has a foot disability with an onset in service, related to service, or secondary to his service-connected lumbosacral spine disability, as directed in the February 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). Cervical Spine Disability The Veteran seeks service connection for a cervical spine disability, asserting that such disability began during service or is related to a reported in-service 1979 neck injury during his service in Germany. In February 2019, the Board remanded to obtain VA medical opinion regarding whether the Veteran's cervical spine disability was incurred in service, is related to service, or is secondary to his service-connected lumbosacral spine disability. A September 2019 VA contract examiner opined that the Veteran's cervical spine disability is less likely than not due to or aggravated by his lumbosacral spine disability. The VA contract examiner explained that there is no evidence that lumbosacral arthritis would lead to cervical degenerative disc disease and that the Veteran's cervical degenerative disc disease is most likely part of the normal aging process. However, the VA contract examiner did not opine as to whether the Veteran's cervical spine disability had an onset in service or is related to service, to include addressing in-service complaints, as directed in the February 2019 Board remand. Accordingly, remand is appropriate to obtain such medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). Left Lower Extremity Radiculopathy The Veteran complains of bilateral leg pain and is service connected for lumbar spine disability. In February 2019, the Board remanded for a VA examination to determine if the Veteran has radiculopathy of any extremity related to his service-connected lumbar spine disability. A September 2019 VA contract examiner noted radiculopathy of the right lower extremity but no radiculopathy of the left lower extremity. At the time of the examination, the Veteran complained only of pain shooting down the right leg. A July 2020 rating decision granted service connection for right lower extremity radiculopathy. However, a January 2020 VA treatment record notes the Veteran's reports of bilateral leg and back pain which is progressively worse. Given the Veteran's recent reports of bilateral leg pain, remand is warranted for VA medical opinion regarding whether the Veteran has had left lower extremity radiculopathy associated with the service-connected lumbar spine disability at any time during the claim period. TDIU/SMC As noted by the Board in the February 2019 remand, the Veteran is in receipt of a 100 percent rating for his psychiatric disorder and may receive additional compensation if he is entitled to TDIU on the basis of another, separate disability. See Bradley v. Peake, 22 Vet. App. 280 (2008); 38 U.S.C. § 1114(s). The issue of such entitlement is inextricably intertwined with the issues being remanded and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). While this matter is on remand, outstanding private and VA treatment records should be obtained, including VA treatment records from June 2020 to the present. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims. 2. Take any appropriate actions to obtain February 1967 service treatment records (referenced in a November 1980 service treatment record) following the Veteran's fall from a truck where he landed on his buttocks. 3. Contact SSA and request all relevant records relating to the Veteran which are in SSA's possession. A copy of any requests sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide such records. 4. Obtain any additional VA treatment records, to include VA treatment records from June 2020 to the present. Associate with the claims file all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran's claims file. 5. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any pulmonary and respiratory disability present at any time during the claim period even if resolved. The examiner must specifically address the March 2019 VA treatment records noting asthma and bronchitis exacerbations and the notation of chronic COPD, asthma, and bronchitis. For each disability, the examiner should opine regarding whether it is at least as likely as not that the disability: (a) had an onset in service; or (b) is otherwise related to service. The examiner should consider all medical and lay evidence of record. The examiner must specifically address the Veteran's service treatment records noting chest pain and coughing, including the September 1975, December 1976, May 1977, August 1977, February 1979, January 1980, and August 1980 STRs, and the April 1981 Report of Medical History, completed by the Veteran at service separation, which shows that the Veteran checked "YES" for asthma, shortness of breath, pain or pressure in chest, and chronic cough. The examiner is asked to explain the reasons behind any opinions expressed. 6. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not that the Veteran's hip disabilities: (a) had an onset in service; or (b) are otherwise related to service. The examiner should consider all medical and lay evidence of record. The examiner must specifically address the September 2019 VA contract examiner's opinion, the Veteran's August 1976 fall from a tower resulting in a back injury and February 1976 slip and fall off a truck onto his buttocks, the service treatment records noting hip complaints, including the February 1981, April 1981, and November 1980 STRS, the October 1980 in-service x-ray showing osteitis condensans ilii, and the April 1981 Report of Medical History, completed by the Veteran at service separation, which shows that the Veteran complained of pain in his hip joints. The examiner is asked to explain the reasons behind any opinions expressed. 7. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any right and left foot disability present at any time during the claim period even if resolved. For each disability, the examiner should opine regarding whether it is at least as likely as not that the disability: (a) had an onset in service; (b) is otherwise related to service; or (c) is caused by or aggravated by the Veteran's service-connected lumbosacral spine disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record. The examiner must specifically address the June 2013 VA treatment record which noted that the Veteran's right foot pain was probably related to his lower back pain and the January 2020 VA treatment record showing foot diagnoses. The examiner is asked to explain the reasons behind any opinions expressed. 8. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any cervical spine disability, to include degenerative disc disease, present at any time during the claim period. For each disability, the examiner should opine regarding whether it is at least as likely as not that the disability: (a) had an onset in service; (b) manifested to a compensable degree within a year of separation from service (June 1982); or (c) is otherwise related to service. The examiner should consider all medical and lay evidence of record. The examiner must specifically address the Veteran's April 1975, April 1976, and November 1980 service treatment records noting back pain which moved up, radiated out to his shoulders, or was present in his upper back. The examiner is asked to explain the reasons behind any opinions expressed. 9. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not that the Veteran has had left lower extremity radiculopathy/neuropathy associated with the service-connected lumbar spine disability at any time during the claim period, even if resolved. The examiner should consider all medical and lay evidence of record. The examiner must specifically address the Veteran's reports of bilateral leg pain, including as noted recently in the January 2020 VA treatment record. The examiner is asked to explain the reasons behind any opinions expressed. 10. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Purcell, Amy 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.