Citation Nr: 21006612 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-22 930A DATE: February 4, 2021 REMANDED Entitlement to service connection for residuals of a hernia, status-post hernia removal surgery, to include scars, as secondary to service-connected back disability, is remanded. Entitlement to a temporary total evaluation for hospital treatment in excess of 21 days for hernia removal under 38 C.F.R. § 4.29 is remanded. Entitlement to a temporary total evaluation for surgical convalescence for hernia removal under 38 C.F.R. § 4.30 is remanded. Entitlement to service connection for erectile dysfunction, as secondary to service-connected back disability, is remanded. Entitlement to service connection for a stomach disability, as secondary to service-connected back disability, is remanded. Entitlement to service connection for a right eye disability, as secondary to service-connected back disability, is remanded. Entitlement to an increased rating in excess of 40 percent for a back disability is remanded. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left lower extremity (sciatic) is remanded. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left lower extremity (femoral) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1988 to March 1991. The Board acknowledges that the Veteran’s representative has requested, as recently as January 2021, an extension of time during which to submit evidence in support of the claims. As the claims are being remanded for additional development, the Veteran and his representative will have an opportunity to submit evidence while the case is on remand. 1. Entitlement to service connection for residuals of a hernia, status-post hernia removal surgery, as secondary to service-connected back disability With regards to the Veteran’s claim for service connection of a hernia, the Board notes that the RO had previously denied the claim based on a finding that the Veteran no longer had a current disability. Specifically, the RO noted in its November 2017 rating decision, that the Veteran’s hernia disability had resolved through surgical intervention, which removed the hernia, prior to the filing the claim for service connection; as such, the RO determined that service connection was not warranted as a current disability was not present. The Board, disagrees. The Board finds that RO interpretation of the Veteran’s claim for benefits with regards to his developed hernia to be flawed. The Board notes that the VA must interpret a veteran’s claim to include all disabilities and maladies that reasonably may be encompassed by the Veteran’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the Veteran’s claim for a hernia disability was after his surgical removal of the actual hernia, the Board finds that such claim is meant to encompass such symptoms and maladies that are associated with any post-surgical residuals of his hernia. Here, a close review of the VA treatment record contemporaneous to the Veteran’s surgery and post-surgical treatment leading up to, and in the early months of the Veteran’s claims period, reveal various continued residuals to include the need for a sling, pain, and also a surgical scar. The Board finds that all such symptoms are considered residuals that are eligible for service connection, if an etiological nexus can be sustained by the evidence. The Veteran was afforded a VA examination November 2017 explicitly to determine the nature and etiology of his hernia. While the VA examiner identified various residuals of the Veteran’s surgery for his hernia, to include a scar, the examiner ultimately found that the Veteran’s hernia was resolved and therefore, no nexus could be drawn to the Veteran’s back disability. The Board finds the VA examination and opinion to be inadequate, as the VA examiner primarily focused on the fact that the Veteran no longer had a hernia disability. The examiner’s opinion was silent on the Veteran’s residuals, and also failed to provide any opinion regarding secondary aggravation to the Veteran’s back disability. As such, the Board finds that such opinion is inadequate, and remand is required for the VA to fulfill its duty to the Veteran. The Board notes that the VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). 2. Entitlement to a temporary total evaluation for hospital treatment in excess of 21 days for hernia removal under 38 C.F.R. § 4.29 3. Entitlement to a temporary total evaluation for surgical convalescence for hernia removal under 38 C.F.R. § 4.30 A November 2017 rating decision denied the Veteran’s claims for a temporary total evaluation based on surgical convalesce and/or hospital treatment. In that same month November 2017, the Veteran filed a timely Notice of Disagreement, on the appropriate form, and expressed contest to all the findings of the rating decision, to specifically include his claims for a temporary total evaluation. No Statement of the Case addressing these claims have been issued. Therefore, the Board is required to remand the claim for issuance of a statement of the case. Manlicon v. West, 12 Vet. App. 238 (1999). 4. Entitlement to service connection for erectile dysfunction, as secondary to service-connected back disability, is remanded. 5. Entitlement to service connection for a stomach disability, as secondary to service-connected back disability, is remanded. 6. Entitlement to service connection for a right eye disability, as secondary to service-connected back disability, is remanded. With regard to the claims for service connection for erectile dysfunction, a stomach disability, and a right eye disability, to include as secondary to the Veteran’s back disability, the Board finds that the VA examination and nexus opinions obtained by the VA in September 2010 and August/November 2011 to be inadequate, and remand is required to obtain additional opinions for the VA to fulfill the duty to assist the Veteran. The Board notes that the VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). With regards to the Veteran’s claim for erectile dysfunction, and a right eye disability, the Board notes that in the most recent VA nexus opinion letter acquired by the VA, dated August 2011, is considered inadequate, as it fails to address any secondary theories of aggravation with regards to the medication taken for the Veteran’s service-connected back disability. Specifically, while the VA examiner comprehensively address secondary causation and made a finding that the Veteran’s right eye disability and erectile dysfunction was not caused by the Veteran’s back disability or medication, the opinion was silent on providing a finding on aggravation. As such, the Board must find such opinion to be inadequate. Likewise, with regards to the Veteran’s claim for a stomach disability. The VA again acquired a VA examination and addendum opinion in September 2010 and November 2011. Here, like with the Veteran’s claim for erectile dysfunction, the September 2010 VA examination found no evidence of the Veteran’s back disability causing the Veteran’s stomach disability, but failed to speak to aggravation. In a November 2011 addendum opinion, while the VA examiner made a finding that the stomach condition was not aggravated or caused by the Veteran’s back disability, it provided little to no rationale for its findings. The Board finds the addendum opinion to be inadequate, as the short terse conclusion fails to distinguish whether such findings referred to the Veteran’s actual back disability itself, or the medication taken for such disability. As the Veteran has explicitly noted a secondary relation due to medication, the Board must find such opinion to be, again, inadequate, and therefore, remand is required. 7. Entitlement to an increased rating in excess of 40 percent for a back disability is remanded. 8. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left lower extremity (sciatic) is remanded. 9. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left lower extremity (femoral) is remanded. With regard to the claims for increased rating, the Veteran was provided the most recent VA examination in May 2015, nearly six years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). When available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examination temporally remote, but the examination appears to no longer indicate the Veteran’s current level of disability. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran’s claim for an increased rating for a back disability and associated left lower radiculopathy. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 10. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board notes that throughout the claims period, the Veteran has asserted that his service-connected disabilities, namely his back disability prevented him from employment. As such, the Board finds that claim for a TDIU is inextricably intertwined with the claim for increased rating for his back. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for a TDIU must also be remanded. The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from private treatment providers that are not already of record. 3. Issue a Statement of the Case addressing the issues of entitlement to a temporary total evaluation based on convalescence or hospitalization, for hernia removal. Notify the Veteran that he must submit a timely substantive appeal to perfect an appeal of those claims. If a timely substantive appeal is received, return the case to the Board. 4. Schedule the Veteran for a VA examination with a genitourinary medical doctor. The examiner must review the claims file and should note that review in the report. Any additional tests that the examiner deems necessary should be performed. The examiner is ask to provide an opinion regarding the nature and etiology of erectile dysfunction, and whether it is at least as likely as not (50 percent probability or greater) that ED, diagnosed during the pendency of the appeal, (1) is related to service or any event, disease, or injury during service, (2) is due to or the result of any service-connected disability or treatment for a service-connected disability, or (3) has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for a service-connected disability. The examiner should specifically address whether any medications taken for service-connected disabilities cause or aggravate ED and to reconcile the opinion with previous VA examinations. The rationale for all opinions should be provided. 5. Schedule the Veteran for a VA examination with a medical doctor. The examiner must review the claims file and should note that review in the report. Any additional tests that the examiner deems necessary should be performed. The examiner is ask to provide an opinion regarding the nature and etiology of a right eye disability, and whether it is at least as likely as not (50 percent probability or greater) that the right eye disability, diagnosed during the pendency of the appeal, (1) is related to service or any event, disease, or injury during service, (2) is due to or the result of any service-connected disability or treatment for a service-connected disability, or (3) has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for a service-connected disability. The examiner should specifically address whether any medications taken for service-connected disabilities cause or aggravate a right eye disability and to reconcile the opinion with previous VA examinations. The rationale for all opinions should be provided. 6. Schedule the Veteran for a VA examination with a medical doctor. The examiner must review the claims file and should note that review in the report. Any additional tests that the examiner deems necessary should be performed. The examiner is ask to provide an opinion regarding the nature and etiology of the claimed stomach disability, and whether it is at least as likely as not (50 percent probability or greater) that the claimed stomach disability, diagnosed during the pendency of the appeal, (1) is related to service or any event, disease, or injury during service, (2) is due to or the result of any service-connected disability or treatment for a service-connected disability, or (3) has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for a service-connected disability. The examiner should specifically address whether any medications taken for service-connected disabilities cause or aggravate the claimed stomach disability and to reconcile the opinion with previous VA examinations. The rationale for all opinions should be provided. 7. Schedule the Veteran for a VA examination to determine the nature and severity of service-connected disabilities of the back and radiculopathy of the left lower extremity. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner should describe the symptomatology cause by the back and left lower extremity disabilities. The examiner should provide ranges of thoracolumbar spine motion for active and passive motion and for weight-bearing and nonweight-bearing. The examiner should state whether there is any additional loss of function due to painful motion, excess motion, fatigability, incoordination, weakened motion, or on flare up. (Continued on the next page) The examiner should also describe to the effect of the disabilities, if any, on the Veteran’s occupational functioning and daily activities. If the Veteran is felt capable to perform occupational tasks despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.