Citation Nr: 21071869 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-58 654A DATE: December 1, 2021 ORDER Entitlement to service connection for rheumatoid arthritis of the hands, ankles, and toes is granted. REMANDED Entitlement to service connection for Alzheimer's disease is remanded. Entitlement to an increased rating in excess of 10 percent for cervical spine degenerative disc disease (DDD) is remanded. FINDING OF FACT The Veteran's rheumatoid arthritis of the hands, ankles, and toes is etiologically related to active service. CONCLUSION OF LAW The criteria to establish service connection for rheumatoid arthritis of the hands, ankles, and toes have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to March 2001. The Veteran appealed a July 2014 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans' Appeals (Board) hearing was held in August 2021. A transcript is of record. A veteran is entitled to Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has rheumatoid arthritis. See November 2018 Dr. W.T. letter. The Veteran identified that he has had pain, stiffness, and swelling in the hands, ankles, and toes since service. See August 2021 Board Hearing Tr. at 15-16. The Veteran is competent to attest to the location and existence of his joint pain since service. The Board finds his assertions credible. Dr. W.T.'s November 2018 letter found that the Veteran's rheumatoid arthritis began in 1998 during military service. The Board find's Dr. W.T.'s opinion probative. The Board finds that the evidence is at least in equipoise as to whether the Veteran's rheumatoid arthritis had its onset in service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's rheumatoid arthritis originated during service. Accordingly, service connection for rheumatoid arthritis of the hands, ankles, and toes is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Alzheimer's Disease The Veteran noted he started having behavioral and memory problems during service. See August 2021 Board Hearing Tr. at 27, 30. The Veteran also noted that he had insomnia and night sweats. See September 2014 notice of disagreement (NOD). The Veteran is competent to attest to such symptoms during service. However, the Veteran has not been afforded an examination regarding his Alzheimer's disease and no etiology opinion has been rendered. The Board finds remand is required to afford the Veteran an examination and to determine the nature and etiology of his Alzheimer's disease. 2. Neck Condition The Veteran stated that his neck condition has gotten worse since his last examination. See August 2021 Board Hearing Tr. at 6. Where a Veteran contends that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). On remand, the AOJ should afford the Veteran a new examination to determine the current severity of his neck condition. Additionally, the July 2014 examination did not adequately account for flare-ups. The July 2014 examiner noted flare-ups and that the Veteran cannot move his head, but noted that the Veteran was not having a flare-up that day and it would be only speculative to report limits in functional ability. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." 29 Vet. App. 26, 35 (2019). Overall, the July 2014 examiner did not obtain sufficient details regarding flare-ups for the Board to make a fully informed decision. As such, the July 2014 examination is inadequate for rating purposes and a new examination is warranted. Furthermore, the Veteran noted potential associated radicular symptoms. See August 2021 Board Hearing Tr. at 10. The examiner on remand should determine the nature and etiology of such symptoms. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his Alzheimer's disease and neck condition that are not already of record, to include records from Dr. Posas noted during the August 2021 Board hearing. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of his Alzheimer's disease. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's Alzheimer's disease was incurred in, or otherwise related, to his time on active service? The examiner is to consider the Veteran's alleged in-service symptoms of behavioral changes, memory issues, insomnia, and night sweats. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the development in #1 above is completed, schedule the Veteran for an examination to determine the current severity of his cervical spine DDD. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran's condition and discuss the effect of the Veteran's condition 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). The examiner is also to determine whether the Veteran has any associated radicular symptoms and, if so, the examiner should describe such symptoms and their severity. (Continued on the next page) 4. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, Associate 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.