Citation Nr: 21070395 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 09-35 042 DATE: November 23, 2021 REMANDED Entitlement to service connection for bunions is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for an unspecified chronic virus, to include Lyme Disease and/or Epstein-Barr virus, is remanded. Entitlement to service connection for a neurological eye disability, to include as due to radiation exposure, is remanded. Entitlement to service connection for sciatica (excluding peripheral neuropathy) is remanded. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), asthma, and/or small-airway disease and as due to radiation exposure, is remanded. Entitlement to service connection for lower extremity stress fracture residuals is remanded. Entitlement to service connection for stress incontinence, to include as secondary to lower extremity stress fracture residuals, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1986 to June 1990. She testified during a videoconference hearing before the undersigned Veterans Law Judge of the Board in March 2011. The transcript of the proceeding is of record. Most recently, in April 2018, the Board remanded these claims back to the local Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ), to obtain VA examinations and needed medical opinions concerning the etiologies of these claimed disabilities. To this end, the Veteran underwent VA examinations in October 2019, February 2020, and March 2020; however, as will be discussed, the reports of the evaluations do not provide the necessary information to address the determinative issue of causation, so the additional development directed to occur on remand regarding these claims has not been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Nevertheless, following the Board's most recent April 2018 remand and after review of an April 2020 VA examination, the RO (AOJ) granted service connection in a June 2020 rating decision for right knee meniscus tear, status post meniscus tear repair, and assigned an initial 10 percent rating retroactively effective from March 20, 2006. If, in response, the Veteran disagrees with the initial rating and/or effective date for this now service-connected disability, she must separately appeal these "downstream" issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for bunions is remanded. An exam scheduling request summary shows that the Veteran was scheduled for a VA examination to determine the nature and etiology of her bunions, but that the examination was canceled due to her failure to attend. However, a June 2020 VA Form 27-0820, Report of General Information shows that the Veteran called to inquire about the status of the examination and after learning it was canceled, requested that it be rescheduled. A preliminary review of the claims file reveals that the examination has not yet been rescheduled. Therefore, on remand, the Veteran should be afforded a new VA examination. 2. Entitlement to service connection for a left knee disability is remanded. A February 2020 VA examiner noted that the Veteran has osteoarthritis of the left knee but concluded that it was less likely than not related to her military service because minor degenerative changes are to be expected at her age. In doing so, the examiner failed to provide an adequate rationale for this conclusion or consider the Veteran's in-service complaints of bilateral lower leg tenderness which was diagnosed as overuse syndrome and patellofemoral syndrome. As such, a supplemental medical opinion is necessary to consider this information. 3. Entitlement to service connection for an unspecified chronic virus, to include Lyme Disease and/or Epstein-Barr virus, is remanded. As noted in the April 2018 Board remand, the November 2016 VA examination report shows a diagnosis of central nervous residuals of Lyme disease, dated in 1990 and 2009. The October 2019 VA examiner noted that review of the claims file shows the Veteran reporting positive Lyme titers in March or April 1990, but that medical documentation confirming the diagnosis is unavailable. On the contrary, VA treatment records show that the Veteran attributed the circular rash to radiation overexposure. However, in making this determination, the October 2019 VA examiner discredited the Veteran's lay testimony. Notably, the Veteran has recalled the course of her alleged Lyme disease with stunning consistency over the course of more than 30 years, and across several different settings (i.e., clinical evaluation, in support of compensations claims, and during sworn testimony). She alleges, with specificity, that she sustained a tick bite to her abdomen in 1989 that developed into a circular rash, that doctors initially did not feel her symptoms were consistent with Lyme disease, that she subsequent developed systemic, flu-like symptoms, and that she was soon privately tested and diagnosed with Lyme disease in 1990. Crucially, the symptoms she provides in this timeline are observable by lay persons. Thus, while she may not be competent to self-diagnose Lyme disease, she is certainly competent to report the pertinent symptoms she experienced at the time and, in turn, the examiner should have considered such statements as evidence, in and of themselves, in support of her claim. In addition, while the examiner noted that the Veteran suffered from joint paints, arthralgias, fibromyalgia, and fibrositis, he did not explain whether these conditions were symptomatic of any chronic viruses, infections, diseases, other than Lyme disease, nor provide a rationale as to why they were not caused by the Veteran's documented exposure to non-ionizing radiation. Therefore, remand is warranted to obtain additional medical comment. 4. Entitlement to service connection for a neurological eye disability, to include as due to radiation exposure, is remanded. An October 2019 VA examiner diagnosed the Veteran with Fuch's dystrophy, bilateral cataracts, and bilateral dermatochalasis, and noted that Fuch's dystrophy is an autosomal dominant genetic disorder, which typically does not become symptomatic until the age of 40. Therefore, the VA examiner determined that the condition does not appear to have been aggravated by the Veteran's military service. In a July 2020 addendum medical opinion, the examiner clarified that the Veteran's Fuch's dystrophy is a congenital defect, but conversely noted that it is at least as likely as not related to the Veteran's non-ionizing radiation exposure or eye-related notations therein. Not only is this conclusion contradictory, but it also does not explain whether the Veteran's Fuch's dystrophy was at least as likely as not subject to a superimposed disease or injury during active military service that resulted in disability apart from the congenital or developmental defect. Furthermore, neither the October 2019 VA examination, nor July 2020 addendum medical opinion address the etiology of the Veteran's cataracts and whether they are related to her military service. As such, the Board finds that remand for a supplemental VA medical opinion is necessary. 5. Entitlement to service connection for sciatica (excluding peripheral neuropathy) is remanded. Following the April 2018 Board remand, the Veteran was to undergo a VA examination to determine whether her claimed sciatica was related to her military service, to include her in-service complaints of mid-thoracic numbness and documented radiation exposure. The Veteran underwent a VA examination in February 2020; however, the Board finds it inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F.R. § 3.159(c)(4). Although the VA examiner noted that the Veteran experiences right-side sciatic nerve involvement, his medical opinion addressed the thoracolumbar spine, not the etiology of her claimed sciatica. In doing so, the February 2020 examiner stated that the Veteran's low back disability is unrelated to service because there is no evidence of diagnosis or treatment of a low back disability in service. This conclusion is based on the same inaccurate factual premise of the prior November 2016 VA examiner as the Veteran was in fact treated for low back complaints on several occasions during service. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that a physician's opinion based on an inaccurate factual premise is of little probative value). As such, supplemental medical comment is necessary on remand. 6. Entitlement to service connection for a respiratory disability, to include COPD, asthma, and/or small-airway disease and as due to radiation exposure, is remanded. A March 2020 VA examiner confirmed the Veteran's diagnosis of asthma but concluded that x-ray or pulmonary function tests (PFTs) results as well as a review of the Veteran's claims file and two-hour history and physical examination do not support a diagnosis of COPD. Therefore, the COPD is less likely than not related to the Veteran's military service. In an October 2020 addendum medical opinion, the examiner further opined that there is insufficient data to support that the Veteran's asthma resulted from any in-service exposure to environmental agents. The Board finds this conclusion inadequate, however, as it provides no rationale for the conclusion. In Neives-Rodriguez, the U.S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that most of the probative value of an opinion comes from the discussion of its underlying reasoning, so a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As such, supplemental medical comment is necessary. 7. Entitlement to service connection for lower extremity stress fracture residuals is remanded. Regarding the issue of entitlement to service connection for lower extremity stress fracture residuals, a March 2020 VA examiner that there is no current diagnostic findings to confirm a current diagnosis of medial-tibial stress syndrome. However, the examiner failed to address whether there are current residuals of stress fractures to the pelvis, hips, ankles, or feet, as directed in the prior April 2018 Board remand. As such, a supplemental VA medical opinion is necessary to address these contentions. 8. Entitlement to service connection for stress incontinence, to include as secondary to lower extremity stress fracture residuals, is remanded. Following the April 2018 Board remand, the Veteran was scheduled for a VA examination as to the etiology her stress incontinence. However, a preliminary review of the record reveals that she declined to attend the scheduled examination and therefore the request was canceled. Normally, when a Veteran does not attend a scheduled examination, a decision will be made on the evidence of record. See 38 C.F.R. § 3.655. However, in this case, as the Veteran is alleging that her stress incontinence is secondarymeaning caused or aggravated byher claimed lower extremity stress fracture residuals, any decision with respect to that claim remanded herein may affect the Veteran's claim for service connection for stress incontinence. These issues are inextricably intertwined because a hypothetical grant of service connection, or additional evidentiary development during the VA examination for the Veteran's lower extremity stress fracture residuals claim, could significantly change the adjudication of the stress incontinence issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of entitlement to stress incontinence must be deferred until the intertwined issue is either resolved or prepared for appellate consideration. Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, these claims are REMANDED for the following still additional development and consideration: 1. Afford the Veteran a VA medical examination with a podiatrist to determine the nature and etiology of her claimed bunions. A copy of this remand and all relevant medical and other records should be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and complete all necessary testing and evaluation, including required by the current DBQ format. Based on a review of the results of the Veteran's physical examination, her lay statements regarding the history of her bunions, and consideration of all other relevant evidence in the claims file, the examiner is asked to answer the following questions: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's bunions began during her service or are otherwise related or attributable to a disease, an event, or an injury in service? When responding, whether favorably or unfavorably, the examiner must provide explanatory rationale for all medical opinions provided or conclusions preferably citing to supporting evidence in the file and/or accepted medical authority. The examiner is also advised that the Veteran is competent to report her symptoms and history, and her reports must be specifically considered in formulating all opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason or explanation for doing so. 2. Obtain supplemental, i.e., addendum medical opinions concerning the nature and etiology of the Veteran's left knee, unspecified chronic virus, claimed as Lyme disease, neurological eye disability, sciatica, respiratory disability, and lower extremity stress fracture residuals. If needed to respond to the questions being asked, schedule her for another VA examination to obtain this needed additional comment concerning the nature and etiology of these claimed conditions. Based on the Veteran's statements regarding the development and treatment of these claimed disabilities, and after review of the relevant evidence in the claims file, including a complete copy of this remand and the Board's prior remand, the examiner is asked to answer the following questions: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee degenerative joint disease (DJD), or any other diagnosed knee disability, began during her service from April 1986 to June 1990, or initially manifested within a year of her discharge so by June 1991, or is otherwise related or attributable to her service, to include notations of stress fractures and knee complaints therein (e.g., overuse syndrome and patellofemoral syndrome)? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran contracted Lyme disease during service? In so finding, the examiner must consider and discuss the significance of the Veteran's competent allegations that she sustained a tick bite in 1989 that developed into a circular rash, was not felt to be consistent with Lyme disease initially but later progressed to involve systemic flu-like symptoms, and was diagnosed as Lyme disease privately in 1990 (and their consistency with the expected presentation of Lyme disease, among any other medical factors that are felt to be pertinent). (c.) Does the Veteran have any chronic viruses, infections, diseases, or other disabilities documented in the record or found on examination other than Lyme disease? In so finding, the examiner should include consideration of whether there is demonstrable disabling pathology for which no known clinical diagnosis applies. (d.) For each such disability identified, is it at least as likely as not (a 50 percent probability or greater) that such disability is related to the Veteran's service, to specifically include (but not limited to) notations of joint paints, arthralgias, fibromyalgia, and fibrositis OR the documented exposure to non-ionized microwave radiation therein? (e.) Assuming, as the prior examiner concluded, the Veteran's Fuch's dystrophy is a congenital defect, it is at least as likely as not (a 50 percent probability or greater) that such disability was subject to a superimposed disability or injury during service, to include (but not limited to) as a result of confirmed non-ionizing microwave radiation exposure OR eye-related notations? (f.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's sciatica began during her service, or is otherwise related or attributable to her service, to include in-service notations of mid-thoracic numbness and documented radiation exposure? (g.) Assuming, as the prior examiner concluded, that the Veteran's only confirmed respiratory diagnosis is asthma, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's asthma began during her service or is otherwise related or attributable to her service, notations of respiratory complaints, treatment, and diagnoses and documented non-ionized microwave radiation exposure therein? (h.) During the period on appeal, did the Veteran exhibit symptoms that indicate lower extremity stress fracture residuals, to include the pelvis, hips, upper and lower legs, ankles, or feet? If so, please identify all such residuals. In particular, the examiner should note whether there are pubic ramus stress fracture residuals. (i.) If so, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's lower extremity stress fracture residuals began during her service or are otherwise related or attributable to her service, to include numerous in-service notations of stress fractures? The examiner must provide a complete rationale for any opinion provided. The absence of evidence of treatment for these disabilities in the Veteran's service treatment records cannot, standing alone, be a sufficient rationale for providing a negative opinion. The examiner is also advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. It is essential the examiner provide rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.