Citation Nr: 21075298 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-29 699 DATE: December 20, 2021 ORDER Entitlement to an initial 30 percent rating for residuals of a cold injury to the right hand for the appeal period prior to March 15, 2018 is granted. Entitlement to an initial 30 percent rating for residuals of a cold injury to the left hand for the appeal period prior to March 15, 2018 is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for Barret's esophagus, to include as secondary to service-connected disabilities is remanded. Entitlement to an initial rating higher than 30 percent for residuals of a cold injury to the right hand is remanded. Entitlement to an initial rating higher than 30 percent for residuals of a cold injury to the left hand is remanded. FINDINGS OF FACTS 1. Resolving reasonable doubt in the Veteran's favor, his residuals of cold injury of the right hand are manifested by arthralgia or other pain, numbness, sensitivity to cold, hyperhidrosis, and arthritis. 2. Resolving reasonable doubt in the Veteran's favor, his residuals of cold injury of the left hand are manifested by arthralgia or other pain, numbness, sensitivity to cold, hyperhidrosis, and arthritis. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating for residuals of cold injury of the right hand, for the appeal period prior to March 15, 2018, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code (DC) 7122. 2. The criteria for an initial 30 percent rating for residuals of cold injury of the left hand, for the appeal period prior to March 15, 2018, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, DC 7122. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1963 to March 1965. The claims regarding hypertension, GERD, and Barret's esophagus were appealed to the Board of Veterans' Appeals (Board) from an April 2015 rating decision. The Veteran filed a notice of disagreement (NOD) in May 2015, which resulted in a January 2018 statement of the case (SOC). Thereafter, the Veteran filed a substantive appeal in January 2018. The claims were before the Board in June 2018 and remanded for further development. As to the claims regarding increased rating for residuals of cold injuries of the right and left hands, those claims were before the Board in December 2019. At that time, the Board denied rating higher than 20 percent, for each hand, for the appeal period prior to March 15, 2018, and granted 30 percent, for each hand, for the appeal period after March 15, 2018. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which vacated the decision and remanded the claims back to the Board in an April 2021 Memorandum Decision. 1. Entitlement to an initial 30 percent rating for residuals of a cold injury to the right hand for the appeal period prior to March 15, 2018 is granted. 2. Entitlement to an initial 30 percent rating for residuals of a cold injury to the left hand for the appeal period prior to March 15, 2018 is granted. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In this case, the Veteran's cold injury residuals of the right and left hands are assigned 20 percent, each, for the appeal period prior to March 15, 2018 and 30 percent, each, thereafter, under DC 7122. Under DC 7122, a 20 percent disability rating is warranted if there is arthralgia or other pain, numbness or cold sensitivity, plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis or x-ray study abnormalities such as osteoporosis, subarticular punched out lesions or osteoarthritis. A 30 percent disability rating is warranted if there is arthralgia or other pain, numbness or cold sensitivity, plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis or x-ray abnormalities such as osteoporosis, subarticular punched out lesions or osteoarthritis. In December 2019, the Board denied rating higher than 20 percent for the appeal period prior to March 15, 2018. As noted above, in April 2021, the Court vacated the Board's decision and remanded the claims. The Court found that the Board erred when it failed to explain why it did not consider the Veteran's arthritis as manifestation of his cold injury. To that end, during an April 2017 evaluation, the Veteran reported suffering from pain in the tips of his fingers and the joints of his fingers, which was worse with cold weather. He described the pain as dull and burning. He also averred experiencing numbness, tingling or a pins and needle sensation, weakness of the hands, sensitivity to cold, excessive sweating of the affected areas as well as arthritis of the affected areas. A December 2017 VA examination reflects that the Veteran had arthralgia or other pain, numbness, sensitivity to cold and hyperhidrosis. In addition, the examiner stated that the Veteran had pain, which was less likely due to his cold injury and more likely due to his arthritis. Thus, the April 2017 and December 2017 evaluations both reflect that the Veteran had arthritis in the areas affected by his cold injury (his hands). Therefore, the Board concludes that the medical evidence of record creates equipoise as to whether residuals of cold injuries of the bilateral hands were manifested by arthritis prior to March 15, 2018. Under such circumstances, the Board resolves reasonable doubt in the Veteran's favor and finds that his symptoms include arthralgia or other pain, numbness, sensitivity to cold, hyperhidrosis and arthritis. Accordingly, the Veterans right hand and left hand cold injury residuals are manifested by symptoms that approximate a level contemplated by 30 percent under DC 7122 for the appeal period prior to March 15, 2018. As previously noted, 30 percent disability rating is the maximum rating possible under DC 7122. Nevertheless, the Veteran has symptoms such as weakness and changes in thickness of skin that may be related to his cold injuries of the hands. Such symptoms are not specifically contemplated by DC 7122 and may be entitled to a separate disability rating under a different DC. However, as explained in detail below, a medical opinion as to whether the Veteran's weakness and changes in thickness of skin are related to his cold injuries is necessary before the Board can consider assigning a disability rating for such symptoms. Therefore, the claims for entitlement to rating higher than 30 percent for cold injury residuals of the right and left hands are remanded. REASONS FOR REMAND 3. Entitlement to service connection for hypertension, to include as secondary to major depressive disorder is remanded. The Veteran asserts that his hypertension is secondary to his service-connected psychiatric disorder or "any medications (or any other therapeutic treatment)" prescribed for treatment of any of his service-connected conditions. See June 2014 Statement in Support of Claim. In June 2018, the Board remanded the claim regarding hypertension asking specifically for opinions as to "whether hypertension is at least as likely as not (1) proximately due to another medical condition, such as PTSD, or (2) aggravated beyond its natural progression by a different medical condition, such as PTSD." Pursuant to the Board's directive, the Veteran underwent a VA examination in April 2019, where the examiner remarked that "there is no medical literature that supports that PTSD is the cause of essential [hypertension]." The Board cannot rely on this opinion because the Veteran's service-connected disability is major depressive disorder, not PTSD. Thereafter, another nexus opinion was obtained in August 2020. In that opinion, the examiner wrote "[n]one of the [V]eteran's [service-connected] conditions is likely to cause essential hypertension, which by definition, is a primary condition and not a secondary condition. Psychological conditions, to include PTSD and related comorbidities of anxiety and depression, etc. do not cause hypertension. Anxiety may temporarily elevate blood pressure, but will not cause or permanently aggravate hypertension. This is accepted medical knowledge and practice, supported by standard texts, such as Cecil." The examiner further explained that the Veteran's blood pressure is well controlled by one medication and there was no evidence of aggravation beyond its natural course. As the examiner found that the Veteran's blood pressure is controlled and therefore not aggravated, the Board finds substantial compliance with prior remand directive regarding aggravation. There is no error in the absence of an opinion applying the exact legal standard (less likely than not) with respect to aggravation. Logically, if the examiner found no aggravation, there is no need for an opinion about aggravators. As to secondary causation, the examiner was asked to address PTSD specifically in the prior Board remand, though no mental health disability was service-connected at the time. While the Veteran originally claimed entitlement to service connection for PTSD, the disability for which service connection was ultimately granted is major depressive disorder. See August 2021 rating decision. A June 2021 VA examiner concluded that the Veteran's hypertension is less likely than not proximately due to or the result of his service-connected major depressive disorder. The examiner wrote: "[a]ccording to medical literature, ... studies for association between hypertension and depression have not produced consistent results. Some antidepressant medications can increase blood pressure slightly in some studies but other studies did not show any elevation in blood pressure. Depression with anxiety can increase blood pressure, whereas depression will typically decrease blood pressure in some studies reported." The examiner further explained "[a]ccording to medical literature, elevated blood pressure may be temporary elevated due to depression and with medications depression is treated [with,] but not cause permanent elevation in blood pressure." It is unclear to the Board why the examiner appears to assign higher persuasive value to the studies that did not find a relationship between hypertension and major depressive disorder. Finally, the record does not have a VA medical opinion that considers medications or treatment prescribed to the Veteran's service-connected disabilities other than his psychiatric disorder. Based on the foregoing, the Board finds that a remand to obtain another opinion is necessary before the claim can be adjudicated. 4. Entitlement to service connection for GERD, to include as secondary to a service-connected disability is remanded. 5. Entitlement to service connection for Barret's esophagus, to include as secondary to a service-connected disability is remanded. Pursuant to the Board's previous remand directive, the Veteran was provided a VA examination in April 2019. That examiner concluded that the "Veteran's GERD and Barrett's esophagus are less likely than not due to or the result of [posttraumatic stress disorder]." The examiner reasoned that the Veteran has risk factors, such as obesity and smoking, which are more likely the cause of his GERD. The examiner also explained that the Veteran's GERD and advanced age is the likely risk factor for his Barrett's esophagus. Because the Veteran's service-connected disability is major depressive disorder, and not PTSD, this opinion is inadequate to adjudicate the claims. The Veteran underwent another VA examination in June 2021, where the examiner concluded that the Veteran's GERD and Barrett's esophagus are less likely than not proximately due to or the result of the Veteran's major depressive disorder. The examiner explained that GERD is caused by an acidic condition that are contained from stomach contents that back up into the esophagus which is the tube that goes from throat to stomach. Causes and risk factors of GERD is from obesity, smoking, certain medications that can cause reflux, delayed stomach emptying, eating large meals or late night. GERD can cause other complications such as Barret's [e]sophagus due to chronic inflammation of the esophagus. The June 2021 examiner provided an opinion supported by adequate rationale as to whether the Veteran's GERD and Barret's esophagus are caused by the service-connected major depressive disorder. As the examiner found that the Veteran's GERD is not aggravated at all beyond its natural progression, the Board finds substantial compliance with prior remand directive regarding aggravation. There is no error in the absence of an opinion applying the exact legal standard (less likely than not) with respect to aggravation. Logically, if the examiner found no aggravation, there is no need for an opinion about aggravators. However, the Veteran claimed that his acid reflux and gastrointestinal condition is "secondary to any medications (or any other therapeutic treatment) . . . prescribed in treatment of any service-connected condition." See July 2014 Statement in Support of Claim. The 2021 examiner endorsed that certain medications can cause reflux but there is no medical opinion that addresses this contention in the claims file. The Board will remand this issue for the narrow question of whether the GERD is caused by any of the medications prescribed to treat his service-connected disabilities. 6. Entitlement to rating higher than 30 percent for the residuals of a cold injury to the right hand is remanded. 7. Entitlement to rating higher than 30 percent for the residuals of a cold injury to the left hand is remanded. As noted above, in April 2021, the Court vacated the Board's December 2019 decision and remanded the claims. the Court found that the ratings the Board assigned did not contemplate the Veteran's symptoms of weakness and changes in thickness of skin. The Court noted that the March 2018 VA examiner attributed the Veteran's reduced grip to cold injury. As such, the Board should have contemplated whether such symptom can be adequately compensated under a different DC. As to the changes in the thickness of the skin, the Court found that the Board should have sought medical opinion as to whether such symptom is related to cold injury if it found the Veteran incompetent to establish a nexus between his skin problems and his cold injury. In April 2017, the Veteran reported weakness in the body affected by his cold injuries, and the March 2018 VA examiner noted that he had reduction in grip strength. After reviewing the record, the Board finds that a remand is necessary to obtain an opinion to determine if the Veteran's thickness of skin is related to residuals of cold injuries of the right and left hand before the claims can be adjudicated. The matters are REMANDED for the following action: 1. Forward the claims file to the VA examiner who provided the June 2021 medical opinion regarding the Veteran's hypertension or to a similarly qualified examiner. After reviewing the claims file, the examiner should answer the following question: (a) Is the Veteran's hypertension at least as likely as not (a 50 percent or greater probability) proximately due to his major depressive disorder? The examiner is asked to review and address the medical literature cited in the June 2021 medical opinion that shows that "Depression with anxiety can increase blood pressure." If the examiner attributes higher persuasive value to one study over another, please explain why. (b) Is the Veteran's hypertension at least as likely as not (a 50 percent or greater probability) proximately due to any treatments or medications prescribed to treat his service-connected disabilities (major depressive disorder, bilateral hearing loss, cold injury residuals, tinnitus, benign paroxysmal positional vertigo, IBS)? The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. 2. Forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the claimed GERD and Barret's esophagus. An in-person examination is not required unless the clinician determines it is necessary. The clinician is asked to review all relevant evidence in the claims file. The clinician should then address the following: (a) Is the Veteran's GERD at least as likely as not (a 50 percent or greater probability) proximately due to any treatments or medications prescribed to treat his service-connected disabilities (major depressive disorder, bilateral hearing loss, cold injury residuals, tinnitus, benign paroxysmal positional vertigo, IBS)? (b) Is the Veteran's Barret's esophagus at least as likely as not (a 50 percent or greater probability) proximately due to any treatments or medications prescribed to treat his service-connected disabilities? The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. 3. Forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the symptoms of the Veteran's residuals of cold injury of the right and left hand. An in-person examination is not required unless the clinician determines it is necessary. The clinician is asked to review all relevant evidence in the claims file. The clinician should then address the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the changes in the thickness of the Veteran's skin (reported in the September 2017 questionnaire) are related to his cold injuries to the right and left hands? Why or why not? LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.