Citation Nr: 21008668 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-16 481 DATE: February 17, 2021 ORDER The petition to reopen the previously denied claim for service connection for arthritis of both feet is granted. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder not otherwise specified (NOS), is denied. REFERRED The Veteran argued in his March 2016 substantive appeal that there was clear and unmistakable error (CUE) in a November 1967 rating decision that denied service connection for arthritis of both feet. The matter of whether a valid motion of CUE has been raised, to revise or reverse the November 1967 rating decision that denied service connection for arthritis of both feet, is REFERRED to the agency of original jurisdiction (AOJ). The Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the agency of original jurisdiction (AOJ) in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). REMANDED 1. Entitlement to service connection for a right foot disability, to include arthritis, is remanded. 2. Entitlement to service connection for a left foot disability, to include arthritis, is remanded. 3. Entitlement to service connection for a right ankle disability is remanded. 4. Entitlement to service connection for a left ankle disability is remanded. 5. Entitlement to service connection for a right hip disability, to include as due to service-connected disabilities, is remanded. 6. Entitlement to service connection for a left hip disability, to include as due to service-connected disabilities, is remanded. 7. Entitlement to service connection for a low back disability, to include as due to service-connected disabilities, is remanded. 8. Entitlement to service connection for hypertension, to include as due to service-connected disabilities, is remanded. 9. Entitlement to an initial rating in excess of 60 percent prior to January 8, 2015, for carcinoma of the lung, is remanded. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to January 8, 2015, is remanded. 11. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance, is remanded. FINDINGS OF FACT 1. An unappealed October 2012 rating decision denied service connection for arthritis of both feet; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. Throughout the appeal period, the severity, frequency, and duration of the Veteran’s PTSD with depressive disorder NOS, did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The October 2012 rating decision denying the claim for service connection for arthritis of the bilateral feet is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. 2. The criteria for an initial rating in excess of 50 percent for PTSD with depressive disorder NOS, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to June 1967. Unfortunately, the Veteran passed away in August 2018, during the pendency of the appeal. The Appellant is his surviving spouse, and she has been properly substituted in this appeal. During his lifetime, the Veteran had a 100 percent schedular rating for lung carcinoma from January 8, 2015. He also had been awarded special monthly compensation under 38 U.S.C. § 1114(s) from January 9, 2015. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from October 2012 and March 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes the Appellant has requested a few extensions in order to confer with her representative and submit additional evidence. See Appellant’s Reports of General Information (VA Form 21-0820) (May 26, 2020, July 9, 2020, & July 31, 2020). The Board first granted a motion for a 30-day extension on June 19, 2020 and then granted another motion for a 30-day extension on January 8, 2021. In the Board’s notification letter dated in January 2021, the Appellant was apprised that she is not currently represented in her appeal pending before the Board. To date, she has not submitted any correspondence indicating she has appointed a representative in the instant appeal. Further, she has submitted a lay statement, received in November 2020, in which she states that her husband suffered greatly due to cancer, strokes, PTSD and other service-related disabilities. Next, as decided herein, the Board will reopen the previously denied claim for service connection for arthritis of both feet and then recharacterize the issue on appeal, as remanded herein, to more broadly encompass the Veteran’s bilateral foot disabilities, to include arthritis. In determining the scope of a claim, the Board must consider a veteran’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). During the pendency of the appeal, in a September 2015 rating decision, the RO increased the evaluation of the Veteran’s service-connected lung carcinoma from 60 percent to 100 percent effective January 8, 2015 and found the disability was permanently and totally disabling. As a higher evaluation for lung carcinoma is available under the rating schedule for the appeal period prior to January 8, 2015, this claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that veterans are presumed to seek the maximum available benefit for a disability). The Board further notes the RO, in the October 2012 rating decision on appeal, initially denied the Veteran’s claim for ischemic heart disease due to herbicide exposure. The Veteran timely appealed the denial in September 2013. Subsequently, in a February 2016 Decision Review Officer (DRO) rating decision, presumptive service connection for coronary artery disease was granted; an initial 10 percent evaluation was assigned effective September 26, 2011 and a 30 percent evaluation was assigned effective October 1, 2013. Additionally, entitlement to special monthly compensation based on housebound criteria was granted from January 8, 2015. Notably, the Veteran did not appeal the evaluation or effective date assigned. As the RO granted in full the benefit sought by the Veteran, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, the issue is no longer in appellate status. 1. Whether new and material evidence has been received to reopen the previously denied claim for service connection for arthritis of both feet. The Board concludes that the October 2012 rating decision denying the claim for service connection for arthritis of the bilateral feet is final; and that new and material evidence has been received to reopen the claim. In this case, the Veteran’s claim for service connection for arthritis of both feet had initially been denied in a rating decision issued in November 1967 on the basis that the Veteran had preexisting arthritis in both feet that was not shown to have been aggravated during service. Within one year of that decision, in March 1968, the Veteran submitted relevant VA treatment records in conjunction with his claim for service connection for the previously denied claim of arthritis of both feet. In an April 1968 adjudication letter (issued in lieu of a formal rating decision), the RO again denied the claim, finding that no new and material evidence had been received to reopen the claim. As the Veteran did not appeal that decision or submit new and material evidence within one year of the notification letter, the decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.1103. In a written statement received by the RO in July 1969, the Veteran indicated that he wanted to file a claim for service connection for his foot condition. He stated that he had constant pain, stiffness and swelling in his joints and had to walk with a cane. He also noted the Army examined him and gave him a “service-connected disability rating of 50 percent.” The RO then sent a letter that same month, on July 22, 1969, notifying the Veteran that his claim was received and describing what evidence he needed to submit to substantiate his claim. The letter also explained that his failure to submit such evidence within one year of the date of the letter would result in his pending claim being disallowed. Over one year later, in October 1970, the RO received a special arthritis examination report of the Veteran’s feet that was performed by VA outpatient services in September 1970 in connection with his status on the U.S. Army temporary disability retired list (TDRL). A VA reference slip dated in October 1970 indicated that no action was needed on the claims file as the examination was conducted for the purposes of determining whether the Veteran could return to active duty. In July 2011, the Veteran claimed service connection for a bilateral foot condition. An October 2012 rating decision denied service connection for arthritis of both feet because the evidence did not show that the Veteran’s bilateral foot arthritis, which the RO determined had preexisted service, had been aggravated during service. An October 2012 letter notified the Veteran of this decision and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, this decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.1103. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Evidence associated with the claims file since the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. This evidence includes the Veteran’s lay statements, VA treatment records, a positive nexus opinion dated August 2014 from Dr. Sanjay Shah of Central Florida Internists and a VA examination report of the bilateral ankles dated December 2014. The evidence is new as it was not considered by adjudicators at the time of the prior final disallowance; and it is material because it tends to suggest the Veteran’s foot disabilities were related to service. Thus, the recent evidentiary submission cures a prior evidentiary defect. Accordingly, the petition to reopen the claim for service connection for bilateral foot arthritis is reopened. 2. Entitlement to an initial rating in excess of 50 percent for PTSD. An October 2012 rating decision granted service connection for PTSD with depressive disorder NOS and assigned a 50 percent rating from July 28, 2011. This appeal arises from the Veteran’s disagreement with the initial rating assigned for PTSD with depressive disorder NOS. The Veteran was assigned an initial 50 percent rating for this disability for the entire period on appeal, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA treatment records, VA examination reports dated in 2012 and 2015, and the lay statements of record from the Veteran and Appellant show that the Veteran’s service-connected psychiatric disorder was manifested by symptoms that more nearly, on balance, comport with the assigned 50 percent rating and do not overall more closely approximate the criteria for a higher rating. Since July 2011, he showed symptoms associated with a 30 percent rating (anxiety, depressed mood, panic attacks (weekly or less often), and chronic sleep impairment); manifested by symptoms associated with a 50 percent rating (disturbances in motivation and mood); and symptoms associated with a 70 percent rating (impaired impulse control such as unprovoked irritability with periods of violence). The Veteran also had symptoms that are not listed with a specific rating: flashbacks, exaggerated startle response, detachedness from others, poor appetite, decreased libido, and restricted affect. Symptoms of flashbacks and exaggerated startle response are like symptoms of anxiety, suspiciousness and panic attacks (weekly or less often), which are symptoms associated with a 30 percent rating. Symptoms of poor appetite, decreased libido, and restricted affect are like symptoms of depressed mood, which is likewise a symptom associated with a 30 percent rating. His symptom of detachedness from others is like difficulty in establishing and maintaining effective work and social relationships, which is a symptom associated with a 50 percent rating. Neither the lay nor the medical evidence reflects that the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Indeed, the Veteran’s symptoms, individually or collectively, did not affect his ability to function independently, appropriately and effectively. An August 2012 VA PTSD examination reflects that the Veteran’s PTSD with depressive disorder NOS was productive of occupational and social impairment with reduced reliability and productivity. His symptoms were anxiety, flashbacks, restricted affect, detachment from others, irritability and anger outbursts, exaggerated startle response and sleep impairment. The examiner noted his symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood and impaired impulse control. The Veteran denied suicidal and homicidal ideation. While he denied any close friends or social contacts outside his family, he reported hobbies that included fishing and watching news on TV. A March 2015 VA examination reflects that the Veteran’s disability caused occupational and social impairment with reduced reliability and productivity. His symptoms were depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment and disturbances of motivation and mood. The Veteran denied suicidal or homicidal ideation. With regard to his mental status, he was cooperative, his speech and volume were at a normal rate and his attention/concentration were intact. Additionally, his affect was broad, and his mood was only slightly depressed. The Veteran reported the frequency and severity of his psychiatric symptoms had remained the same since his last VA PTSD examination in August 2012. The Veteran denied any significant problems in his marriage and stated that he had regular contact with his sons. He reported that he spent most of his time lying in bed and watching TV. With respect to social interaction, he reported having four close friends whom he saw every Saturday and enjoyed fishing with his son. The examiner stated the Veteran resided in a VA nursing facility and his wife had power of attorney and managed their financial affairs. During the appeal period, VA treatment records show that he began psychiatric treatment with VA in September 2011 when he was assessed with PTSD; he was prescribed psychotropic medications and referred to the mental health clinic for a consultation. A December 2011 VA treatment record shows he was appropriately dressed and cooperative, he had normal speech, a broad affect, his memory was intact, and his thought process was normal, linear and goal directed. He had normal concentration and his mood was depressed and anxious. His judgement and insight were fair, and his orientation was noted as normal. The Veteran denied suicidal and homicidal ideation. Regarding cognitive impairment, the competent, credible evidence of record reflects that it is not a symptom of the Veteran’s service-connected mental disability. Indeed, an August 2015 VA mental health note indicates the Veteran was diagnosed as having delirium and major cognitive disorder, unspecified, due to his recent stroke. The Board has considered a September 2013 statement from the Appellant, wherein she attested to a long history of relationship problems with the Veteran throughout their marriage. Unfortunately, her statement appears to address broadly the Veteran’s symptoms over their long relationship, which does not serve to establish the severity, frequency, or duration of his symptoms of PSTS with depressive disorder NOS during the appeal period. For example, she reported retrospectively that the Veteran had strained relations with his children and he nearly choked her to death in 1985 and put a knife to her throat in 1993. However, these recollections predate the appeal period, which commenced in July 2011 and do not cast light on the Veteran’s level of impairment from July 2011, when he was diagnosed and began treatment, until his passing in 2018. Therefore, the statement has limited probative value. Notwithstanding, the Board has considered the Veteran’s symptoms of irritability and anger outbursts as analogous if construed in the most favorable light to “irritability with periods of violence.” However, neither the lay nor medical evidence reflects that this symptom occurred with the severity, frequency or duration at any time in the appeal period to support a finding of occupational and social impairment with deficiencies in most areas; or to outweigh the other symptoms, which on balance with irritability/anger outbursts, more nearly approximates the criteria for no more than 50 percent rating. Again, even accepting that the Veteran did experience symptoms contemplated by a 70 percent rating—specifically, impaired impulse control—the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating or lower rating. Further, neither the lay nor medical evidence indicates that the Veteran’s symptoms included near-continuous panic although he had anxiety and panic attacks; or that his symptoms included near-continuous depression affecting his ability to function independently, appropriately and effectively. Indeed, the record shows that the Veteran was retired and engaged in, and enjoyed, recreational activities. Based on the evidence discussed above, the Board finds that the Veteran's PTSD symptoms have not been shown to rise to the severity, frequency, and duration required for a 70 percent rating or higher. In sum, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's PTSD symptoms more nearly approximated the level of impairment required for a 70 percent or higher rating. Therefore, the criteria for a 70 percent or higher rating for PTSD are not met. Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating. Fenderson, 12 Vet. App. 119; Hart, 22 Vet. App. 505. Accordingly, the claim is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a right foot disability is remanded. 2. Entitlement to service connection for a left foot disability is remanded. 3. Entitlement to service connection for a right ankle disability is remanded. 4. Entitlement to service connection for a left ankle disability is remanded. Issues 1-4. The Veteran had asserted that his bilateral foot disabilities and bilateral ankle disabilities were incurred during active service. See VA Form 21-526 (July 2011) & 21-526 EZ (June 2014). The Veteran indicated that, contrary to the AOJ’s prior findings, his bilateral foot disabilities had existed prior to his enlistment, the onset of his foot problems occurred during active service. Specifically, he argued that his service treatment records (STRs) did not show that he had preexisting bilateral foot disabilities; that he was medically retired from active service with a 40 percent disability rating for his bilateral foot condition; and he sought medical treatment related to his bilateral foot symptoms within one year of his separation from service. See VA Form 9 (March 2016). The Veteran’s STRs show that, although the Veteran reported he had a history of foot trouble at his enlistment examination in April 1965, his contemporaneous Report of Medical Examination performed at entry showed normal clinical evaluation of the feet, and he was not noted to have any right and/or left foot disabilities upon entry into service. However, as discussed below, on numerous occasions throughout service, the Veteran had endorsed symptoms related to his bilateral feet and ankles. The first documented complaints of foot and ankle pain were in September 1965, one month following the Veteran’s entry into service. An orthopedic clinic note shows the Veteran reported pain, swelling, and discoloration in both feet and ankles. He also reported symptoms of pins and needles in both feet and reported he felt his right foot snap. The Veteran was diagnosed as having foot strain with no significant underlying pathology; x-rays of the feet and ankles were normal. Following the examination, the Veteran was referred to the brace shop to have Thomas heels put on his other pair of boots. In November 1965, the Veteran was referred to the neurology clinic because of an episode of fainting. During the visit, the Veteran reported pain and stiffness in both feet upon awakening but indicated the symptoms improved with activity, except for residual, persistent tingling in the soles of both feet. The Veteran indicated these symptoms had been present for at least three or four years and had somewhat interfered with his activity. Moreover, the Veteran reported that prior to his enlistment, he was treated by a podiatrist with physical therapy and whirlpool baths with significant relief. The examiner found no neurological deficits to account for the Veteran’s foot difficulties. In December 1965, the Veteran reported sore feet and the examiner found no evidence of organic pathology. In October 1966, the Veteran was hospitalized for almost one month for foot and ankle pain with an admitting diagnosis of arthritis, etiology unknown. The Veteran reported he first noticed swelling and tenderness in his toes and soles of the feet and ankles one year ago. The contemporaneous x-rays of the bilateral feet and ankles were normal as were laboratory findings, including uric acid and C-reactive protein. His hospital discharge diagnosis in November 1966 was Reiter’s Disease which was determined not to have existed prior to entry. In December 1966, the Veteran sought treatment at the podiatry clinic for chronic pain in both feet. It was noted that although x-rays of the feet were not remarkable, the Veteran reported he was unable to function well because of pain. The Veteran was diagnosed as having chronic foot pain of unknown etiology and was fitted with modified ankle supports. The Board notes that, although x-rays of the feet and ankles during service did not reveal arthritis, other STRs reflect arthritis of the feet on numerous occasions. For instance, the Veteran was placed on physical profile in January 1967; the cited reason was arthritis of the feet; and his restrictions included no crawling, stooping, running, jumping, prolonged standing or marching. A February 1967 STR (U.S. Army dispensary) also indicates arthritis, both feet that was determined to be incurred in the line of duty. However, a December 1968 x-ray of both feet showed bilateral flattening of the plantar and metatarsal arches, but no finding for arthritis or degenerative changes of either foot. The Veteran’s DD Form 214 reflects that he was retired from active service by reason of temporary disability in June 1967 and awarded a 40 percent disability rating. The Board notes that it does not appear the AOJ made any attempt to obtain the Veteran’s complete service personnel records. See VA 21-3101 Requests for Information. Here, the Veteran’s personnel records are particularly relevant insofar as they may contain additional evidence, such as medical and administrative findings, related to the Veteran’s separation from service due to his bilateral foot disabilities. Therefore, on remand, the AOJ should attempt to secure the Veteran’s complete service personnel records. The Veteran’s post-service medical records reflect that within one year of his separation from service, he was hospitalized for complaints related to pain and stiffness in his bilateral feet and low back. A VA Hospital Summary from the VA Research Hospital in Chicago shows he had been admitted on February 28, 1968 and discharged on March 19, 1968 for probable rheumatoid arthritis (sero-negative). The Hospital Summary showed the following physical findings: swelling and redness of the right and left great toes; swelling and redness over the dorsum of the right first metatarsal; tenderness at the right patella-tendon insertion; swelling and redness on the lateral aspect of the right foot; and swelling of the left medial ankle. The Veteran was assessed with possible rheumatoid arthritis or possible Reiter’s Syndrome. The record reflects there may be relevant, outstanding VA treatment records associated with the Veteran’s hospitalization from February 1968 to March 1968. In this regard, the record shows that, in March 1968, the AOJ only requested the Veteran’s hospital summary from the VA Research Hospital rather than all his medical records during his hospitalization. See VA Form 10-7131 Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action (March 18, 1968). Therefore, on remand, the AOJ should attempt to obtain any outstanding medical records from the VA Research Hospital in Chicago dated from February 1968 to March 1968. In September 1970, the Veteran underwent a special arthritis examination at VA outpatient services in Chicago, as a member of the TDRL, for the purposes of assessing whether he was physically qualified to return to active duty. The examiner acknowledged the diagnosis of possible rheumatoid arthritis and stated that as with previous examinations, the only joints involved were the ankles and the metatarsals including the metatarsophalangeal joints of the big toes. The Veteran reported he walked with a limp due to pain in either ankle and foot and used a cane. Following a physical examination, the examiner diagnosed the Veteran with rheumatoid arthritis, probable (sero-negative), current status: chronic involvement of ankles and feet, symptomatic (on aspirin). A contemporaneous x-ray of the bilateral feet showed no evidence of rheumatoid arthritis on either foot. The Board notes that the Veteran was not afforded a VA examination in connection with his claim for service connection for his bilateral feet at any time preceding or during the relevant appeal period. He underwent a VA ankle examination in December 2014 and was diagnosed as having arthritis of the bilateral ankles. The examiner opined that his bilateral ankle arthritis was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner indicated that the Veteran’s bilateral ankle arthritis existed prior to entry into service and stated she was unable to identify any objective evidence in the Veteran’s STRs documenting trauma/injury and/or other medical events that may have caused aggravation of the pre-existing bilateral ankle condition. The Board notes that, although the examiner indicated she reviewed the Veteran’s STRs and referenced most of his in-service feet and ankles complaints, she did not physically examine the Veteran’s feet and did not diagnose him with any foot disabilities. In support of his claim, the Veteran had submitted a favorable nexus opinion from his physician, Dr. Shah of Central Florida Internists, in which he simply concluded that upon reviewing the Veteran’s extensive medical history, his diagnoses of chronic arthritis of the feet and ankles are related to his service. However, the physician provided no rationale in support of his opinion. The Board finds the medical opinion is inadequate for adjudicative purposes because, at a minimum, it fails to provide any analysis and rationale in support of its conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Given the above, the Board finds a medical opinion should be obtained addressing whether the Veteran had bilateral foot and bilateral ankle disabilities that were related to his military service. McLendon v. Nicholson, 20 Vet App. 79 (2006) As previously noted, the Veteran’s April 1965 enlistment examination does not contain any notations at entry pertaining to disabilities of the bilateral feet and/or ankles. See STRs Report of Medical Examination (April 1965). As such, under VA regulations, the Veteran was presumed sound at enlistment and a two-pronged test is for application in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Hence, the VA examiner should provide a medical opinion that applies the correct legal standard that is appropriate to the facts in this case. 5. Entitlement to service connection for a right hip disability is remanded. 6. Entitlement to service connection for a left hip disability is remanded. Issues 5&6. The Veteran asserted that his bilateral hip condition was due to his foot and ankle disabilities. See VA Form 21-526EZ (June 2014). A December 2014 VA hip/thigh examination diagnosed as having a “bilateral hip condition”; it referred to an x-ray of the left hip obtained in February 2014 that showed a possible fracture but no significant degenerative changes. It stated that the physical examination of the Veteran was limited because he was wheelchair-bound; and it was very difficult to obtain a history from the Veteran regarding the onset of his bilateral hip disabilities. A negative medical opinion was predicated on the absence of objective evidence in STRs documenting continuous medical evaluation/management/treatment for any bilateral hip conditions. In support of his claim, the Veteran had submitted a favorable nexus opinion from his physician, Dr. Shah of Central Florida Internists, in which he simply concluded that upon reviewing the Veteran’s extensive medical history, his diagnoses of chronic arthritis of the bilateral hips was related to his service. As previously discussed, the physician provided no rationale in support of his opinion. The Board also finds the medical opinion inadequate because the Veteran had not alleged that his bilateral hip disabilities were incurred in service. Rather, he claimed that his bilateral hip disabilities were secondary to his bilateral foot and bilateral ankle disabilities. In addition, the Veteran’s STRs contain no complaints, treatment or diagnoses related to his hips. As such, the Board may not rely upon this positive nexus opinion to support a grant of the appeal. In sum, the Board finds that the issues of entitlement to service connection for right and left hip disabilities, are inextricably intertwined with the claims for service connection of the bilateral feet and ankles being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). 7. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran asserted that his low back condition was due to his bilateral foot and ankle disabilities. See 21-526EZ (June 2014). The Board notes the Veteran’s STRs reflect that he had been seen for complaints related to back pain. For instance, in November 1965, while being treated at the neurology clinic following a fainting episode, the Veteran reported an intermittent, sudden, sharp pain below the right scapula since he was 12 years old and reported this occurred up to several times per month. In December 1965, the Veteran complained of a backache and was seen at the orthopedic clinic for complaints of intermittent back pain that came on suddenly and resolved in minutes. Upon physical examination, he was noted to have a full range of motion, a normal neurological examination and x-rays of the cervical and thoracic spine were normal. In November 1966, an x-ray of the Veteran’s lumbosacral spine was normal except for findings of spina bifida occulta at S-1. Within one year of his separation from service, the record reflects he was hospitalized for complaints of joint pain and stiffness in his feet and low back. A VA Hospital Summary from the VA Research Hospital in Chicago shows he had been admitted on February 28, 1968 and discharged on March 19, 1968 for probable rheumatoid arthritis (sero-negative). In addition, an associated VA treatment record dated March 22, 1968 noted post-laminectomy back pain with suspected herniated nucleus pulposus, L5-S1, with an unstable back. The note indicated there was an unspecified surgery scheduled for March 26, 1968. A December 2014 VA spine examination diagnosed the Veteran with degenerative disc disease of the lumbar spine. It referred to an MRI report of the lumbar spine dated January 2011 from Osceola Imaging Center showing L5-S1 broad-based disc bulge with right facet osteoarthropathy. It indicated that a history was difficult to obtain from the Veteran with respect to the onset of his low back symptoms. A negative medical opinion was predicated on the absence in the Veteran’s STRs of any history of acute injury while on active duty or continuous medical evaluation/management/treatment for any low back condition. Although the opinion indicates that the Veteran’s STRs were reviewed, the opinion does not address any of the aforementioned STR entries containing the Veteran’s in-service back complaints as well as the post-service VA medical records, dated shortly after separation from service, showing suspected herniated nucleus pulposus, L5-S1. The Board finds that a medical opinion should be obtained that reflects consideration of the relevant STRs and post-service VA treatment records and discusses fully the etiology of the Veteran’s low back disability. 8. Entitlement to service connection for hypertension is remanded. The Veteran had claimed that his hypertension was due to his service-connected disabilities. See VA Form 21-526b (September 2011). The Veteran had not alleged that his hypertension manifested during service or within one year of his separation from service. The Board finds that a medical opinion is required prior to adjudication of the issue. To establish a claim for entitlement to secondary service connection, three criterions must be met. 38 C.F.R. § 3.310. A veteran must have (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or, aggravated (increased in severity) beyond its natural progress by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In this case, the Veteran’s VA treatment records indicate he had been diagnosed with essential hypertension at the time he first sought care at VA in September 2011. In addition, he was service connected for carcinoma of the lung, PTSD with depressive disorder NOS and coronary artery disease. Here, VA had not obtained a medical opinion on the matter of secondary service connection and the Board finds there is sufficient evidence of record to trigger VA's duty to assist. As such, the issue of entitlement to service connection for hypertension is remanded to obtain a medical opinion. See McLendon, supra. 9. Entitlement to an initial evaluation in excess of 60 percent for carcinoma of the lung prior to January 8, 2015, is remanded. The Veteran had claimed he was entitled to an initial rating in excess of 60 percent prior to January 8, 2015 for his service-connected residuals of lung carcinoma. The Veteran had been assigned a 100 percent rating effective January 8, 2015 for active malignancy for his lung carcinoma. A June 2012 VA respiratory examination diagnosed the Veteran with chronic obstructive pulmonary disease (COPD) and carcinoma of the lung, status post left lobectomy in 2004. It stated that the Veteran completed treatment in 2004 with a left lower lobectomy and currently had no residual conditions or complications. During the examination, the Veteran reported increased shortness of breath, dyspnea on exertion and hoarseness. His treatment included daily inhalational bronchodilator therapy, daily inhalational anti-inflammatory medication and no antibiotics, oral bronchodilators, or outpatient oxygen therapy. The examiner referred to a chest x-ray that was conducted in September 2011 that showed postsurgical changes to the left lung field with a reduced overall appearance but without comparison studies available which likely represented normal postoperative changes without evidence of new parenchymal lesions or significant mediastinal or parahilar lymphadenopathy. A CT thorax with contrast dated August 24, 2012 from St. Cloud Regional Medical Center revealed a malignant appearing irregular mass on the right upper lobe with further evaluation recommended. A CT scan of the chest with contrast was conducted on October 6, 2012 by Central Florida Internists and the findings were compared to the CT of the chest from St. Cloud Regional Medical Center. There was a lobulated right upper lobe mass lesion with suspected mild interval enlargement compared to the reported measurements shown on the August 24, 2012 report. Therefore, malignancy could not be excluded. A September 2015 VA examination reflect that the Veteran had carcinoma of the lung. The Veteran was noted to be on oxygen therapy, inhalational bronchodilator therapy and inhalational anti-inflammatory medications daily. The VA examiner noted that a PET scan dated April 29, 2015 showed an FDG avid nodule in the inferior right upper lobe consistent with malignancy with no evidence of FDG avid neoplasm elsewhere. With regard to whether the Veteran met the criteria for a 100 percent evaluation at any point prior to January 8, 2015 for active carcinoma of the lung, the Board finds that a remand for a medical opinion is required to determine whether the August 24, 2012 and October 6, 2012 CT scans of the chest were the first documented manifestations of recurrence of the Veteran’s lung cancer during the appeal period. 10. Entitlement to a TDIU prior to January 8, 2015, is remanded. 11. Entitlement to SMC based on the need for regular aid and attendance, is remanded. Issues 10&11. The Veteran had claimed that his service-connected lung cancer prevented him from securing and following a substantially gainful occupation. See VA Form 21-8940 (October 2011). He also claimed that his need for aid and attendance was a result of his bilateral foot and ankle disabilities. See VA Form 21-526 EZ (June 2014). Consideration of these matters is deferred pending the outcome of the other issues being remanded herein. 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). The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records. 2. Request VA treatment records from the VA Research Hospital in Chicago from February 1968 to March 1968. See Veteran’s VA Form 21-4138, received March 19, 1968, indicating he had been hospitalized since February 28, 1968. 3. Obtain a medical opinion to determine the nature and etiology of any right and left foot disabilities found to be present during, or approximate to, the appeal period beginning in July 2011 and prior to the Veteran’s death in August 2018. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner. The examiner should detail the Veteran’s bilateral foot symptoms in service. If there is any medical reason to accept or reject the proposition that the Veteran’s reported bilateral foot symptoms began during service, to include his reports of pain, swelling, soreness, stiffness, tingling and discoloration and thereafter represented the onset of his bilateral foot disabilities, this should be noted. The examiner should identify any right and left foot disabilities, to include arthritis, that the Veteran had during the appeal period (July 2011 to August 2018). The examiner should provide a medical opinion that expressly addresses the following for each diagnosed right and left foot disability: (a) Is it clear and unmistakable (obvious, manifest, and undebatable) that the Veteran’s right and left foot disabilities preexisted active service? (b) If so, is it clear and unmistakable (obvious, manifest, and undebatable) that the Veteran’s right and left foot disabilities WERE NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress? (c) If the right and left foot disabilities did not preexist service, is it at least as likely as not (a probability of 50 percent or greater) that they had their onset during active service, within one year of service separation in June 1967 or were otherwise related to an injury, disease or event in service? The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, including VA treatment records from the VA Research Hospital in Chicago showing the Veteran was hospitalized within one year of service separation for complaints related to his feet, and the Veteran’s lay statements and assertions. 4. Obtain a medical opinion to determine the nature and etiology of any right and left ankle disabilities found to be present during, or approximate to, the appeal period beginning in June 2014 and prior to the Veteran’s death in August 2018. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner. The examiner should detail the Veteran’s bilateral ankle symptoms in service. If there is any medical reason to accept or reject the proposition that the Veteran’s reported bilateral ankle symptoms began during service, to include his reports of pain, swelling, soreness, stiffness and discoloration and thereafter represented the onset of his bilateral ankle disabilities, this should be noted. The examiner should identify any right and left ankle disabilities, to include arthritis, that the Veteran had during the appeal period (June 2014 to August 2018). The examiner should provide a medical opinion that expressly addresses the following: (a) Is it clear and unmistakable (obvious, manifest, and undebatable) that the Veteran’s right and left ankle disabilities preexisted active service? (b) If so, is it clear and unmistakable (obvious, manifest, and undebatable) that the Veteran’s right and left ankle disabilities WERE NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress? (c) If the right and left ankle disabilities did not preexist service, is it at least as likely as not (a probability of 50 percent or greater) that they had their onset during active service, within one year of service separation in June 1967 or were otherwise related to an event, injury or disease in service? The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, including VA treatment records from the VA Research Hospital in Chicago showing the Veteran was hospitalized within one year of service separation for complaints related to his feet and ankles, and the Veteran’s lay statements and assertions. 5. Obtain a medical opinion to determine the nature and etiology of any lumbar spine disability found to be present during, or approximate to, the appeal period beginning in June 2014 and prior to the Veteran’s death in August 2018. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner. The examiner should detail the Veteran’s low back symptoms in service. If there is any medical reason to accept or reject the proposition that the Veteran’s reported low back symptoms began during service, and thereafter represented the onset of his lumbar spine disability, this should be noted. The examiner should identify any lumbar spine disabilities, to include degenerative disc disease, that the Veteran had during the appeal period (June 2014 to August 2018). The examiner should provide a medical opinion addressing whether it is at least as likely as not (a probability of 50 percent or greater) that any lumbar spine disability had its onset during active service, within one year of service separation in June 1967 or was otherwise related to an event in service? The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, including VA treatment records from the VA Research Hospital in Chicago showing the Veteran was hospitalized within one year of service separation and noted to have suspected herniated nucleus pulposus, L5-S1, with an unstable back, as well as the Veteran’s lay statements and assertions. 6. Obtain a medical opinion from an appropriate clinician regarding the etiology of the Veteran's hypertension prior to his death. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The examiner must opine whether the Veteran’s hypertension was: (a) proximately due to any of his service-connected disabilities, to include PTSD with depressive disorder, coronary artery disease and/or carcinoma of the lung; or, (b) aggravated beyond its natural progression by any of his service-connected disabilities, to include PTSD, coronary artery disease and/or carcinoma of the lung. 7. Obtain a medical opinion from an appropriate clinician, preferably an oncologist or pulmonologist, regarding the Veteran’s service-connected carcinoma of the lung prior to his death, for the appeal period prior to January 8, 2015. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The examiner is asked to address whether the right upper lobe mass identified on the chest CT report dated August 24, 2012 from St. Cloud Regional Medical Center and the report dated October 5, 2012 from Central Florida Internists, at least as likely as not represented the first manifestations of recurrence of the Veteran’s lung cancer during the appeal period. The examiner should consider the September 2015 VA respiratory examination report showing that the Veteran’s carcinoma of the lung had recurred at a later time, according to an April 29, 2015 PET showing an FDG avid nodule in the inferior right upper lobe consistent with malignancy. 8. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on next page) 9. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.