Citation Nr: 21008840 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-26 396 DATE: February 18, 2021 REMANDED Entitlement to service connection for a respiratory condition, to include bronchitis and/or asthma is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) and unspecified depressive disorder (acquired psychiatric disorder) is remanded. Entitlement to an initial compensable rating for vaginal prolapse and rectocele is remanded. Entitlement to an effective date prior to January 4, 2010 for the grant of service connection for an acquired psychiatric disorder is remanded. Entitlement to an effective date earlier than February 10, 2010 for the grant of service connection for vaginal prolapse and rectocele is remanded. Entitlement to a separate compensable rating for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1974 to September 1981. She received a medical board discharge due to a partial right great toe amputation that was the result of an ingrown toenail. In July 2016, the Board remanded the following issues for issuance of a Statement of the Case (SOC): entitlement to an initial compensable rating for vaginal prolapse and rectocele; entitlement to increased ratings for a psychiatric disability; residuals of bladder repair, irritable colon syndrome (IBS), residuals of a vaginal hysterectomy, and residuals of right great toe amputation; entitlement to service connection for migraine headaches; entitlement to a temporary total evaluation due to treatment for a service-connected disability requiring convalescence; entitlement to earlier effective dates for the grants of service connection for a psychiatric disability and vaginal prolapse and rectocele; and entitlement to a separate compensable rating for GERD. In October 2016, SOCs were issued for entitlement to increased ratings for residuals of bladder repair, IBS, residuals of a vaginal hysterectomy, and residuals of right great toe amputation; entitlement to service connection for migraine headaches; and entitlement to a temporary total evaluation due to treatment for a service-connected disability requiring convalescence. The Veteran did not perfect an appeal for these issues. Therefore, they are no longer in appellate status. In January 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2018, the Board reopened and granted several issues that are no longer on appeal. It also remanded the remaining issues discussed herein for evidentiary development. The appeal has since been returned to the Board for further consideration. 1. Entitlement to service connection for a respiratory condition, to include bronchitis and/or asthma is remanded. 2. Entitlement to service connection for sleep apnea is remanded. A review of the record reveals that a remand is necessary to ensure substantial compliance with the Board’s August 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board directed the Agency of Original Jurisdiction (AOJ) to arrange for new VA examinations for these conditions. While the Veteran received a VA respiratory examination in February 2020, it does not appear that a VA sleep apnea examination was performed. At the February 2020 respiratory examination, the examiner diagnosed the Veteran with asthma. The examiner determined that the condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner provided the following remarks: Claimant entered the military with a history of asthma as noted on the Enlistment Physical dated 2/27/74. There are three separate records dated 6/10/75, 7/3/75, and 9/17/75, that noted asthma in conjunction with early pregnancy and again in 1979 in conjunction with bronchitis while in the service. The other records included in the STR are from 1993 and on, once the Claimant had exited the military and continued care as a military spouse. MEB Physical dated 4/6/1981 states: HISTORY OF ASTHMA ATTACKS, TREATED WITH COLEDYL, NONE SINCE ASSIGNED TO ALASKASHORTNESS OF BREATH ASSOCIATED WITH ASTHMA, PAIN IN CHEST ASSOCIATED WITH BRONCHITIS. I would opine that the respiratory condition was not aggravated beyond natural progression by any in service events or illnesses. Every veteran is presumed sound at entry, except as to defects noted at entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by service. 38 C.F.R. § 3.304(b). The Board finds the February 2020 examination report to be inadequate for rating purposes because the examiner merely provided a conclusory statement that the asthma was not aggravated beyond its natural progression by service and did not include any rationale to support her statement. Considering the above, the Board finds that an addendum opinion would be of considerable assistance in resolving this issue. Additionally, a VA obstructive sleep examination with corresponding medical opinion is also required. 3. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability is remanded. 4. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability is remanded. Similarly, a review of the record reveals that a remand is necessary to ensure substantial compliance with the Board’s August 2018 remand directives with respect to these issues. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2019). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board’s previous remand directed the AOJ to provide new opinions that adequately considers the relationship between the Veteran’s right knee and left hip disabilities and the service-connected right great toe, lumbar spine, right ankle, left ankle, and bilateral pes planus disabilities. The Veteran received a VA hip/thigh examination and knee examination in February 2020, wherein she was diagnosed with hip joint replacement and right knee arthroplasty. Curiously, the examiner did not provide an opinion as to the theory of direct service connection. Instead, she provided the following remarks: The Claimant had a LHA in 2010 due to osteoarthritis. Osteoarthritis of the hip is caused by advanced age, joint trauma or injury, history of high impact activity, or joint abnormality. The records only comment on the osteoarthritis but not the precipitating causes. Residuals of a partial right great toe amputation, lumbar spine disability, left ankle disability, right ankle disability, or bilateral pes planus does not cause hip osteoarthritis. The Claimant had a right knee replacement in 2010 due to osteoarthritis. Osteoarthritis of the knee is caused by Advanced age, Obesity, Joint trauma, Family history, Illness or congenital defect, Joint stress and chronic injury, Lack of exercise, Poor muscle tone. The records only comment on the osteoarthritis but not the precipitating causes. Residuals of a partial right great toe amputation, lumbar spine disability, left ankle disability, right ankle disability, or bilateral pes planus does not cause knee osteoarthritis. The Board finds these opinions to be inadequate for rating purposes because the examiner did not provide an opinion with respect to direct service connection and did not correctly consider the theory of secondary service connection. Therefore, addendum opinions are needed to resolve these issues. 5. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Because a decision on the remanded issues addressed above could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is thereby required. 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 decision on one issue cannot be rendered until a decision on the other issue has been rendered). Finally, there may be outstanding or pertinent treatments available for review. The Board finds that it would be prudent for an attempt to obtain any outstanding treatment records be made. 6. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) and unspecified depressive disorder (acquired psychiatric disorder) is remanded. 7. Entitlement to an initial compensable rating for vaginal prolapse and rectocele is remanded. 8. Entitlement to an effective date prior to January 4, 2010 for the grant of service connection for an acquired psychiatric disorder is remanded. 9. Entitlement to an effective date earlier than February 10, 2010 for the grant of service connection for vaginal prolapse and rectocele is remanded. 10. Entitlement to a separate compensable rating for gastroesophageal reflux disease (GERD) is remanded. In its prior remand, the Board noted that an SOC has not been furnished for entitlement to increased ratings for a psychiatric disability and vaginal prolapse and rectocele; entitlement to earlier effective dates for the grants of service connection for a psychiatric disability and vaginal prolapse and rectocele; and entitlement to a separate compensable rating for GERD. Rather, an October 2016 SOC reiterates the June 2015 grant of service connection for a psychiatric disability, vaginal prolapse and rectocele, and GERD. Unfortunately, an SOC has not been furnished for these issues, despite the Board’s August 2018 remand directive. Thus, the Board must remand these issues for an SOC. See 38 C.F.R.§19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran’s electronic claims file. If the AOJ cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran’s electronic claims file. 2. Issue a SOC addressing the issues of increased ratings for a psychiatric disability and vaginal prolapse and rectocele; entitlement to earlier effective dates for the grants of service connection for a psychiatric disability and vaginal prolapse and rectocele; and entitlement to a separate compensable rating for GERD. A timely perfected appeal must be filed to vest the Board with appellate jurisdiction over the claim. 3. Schedule the Veteran for a VA examination with a VA examiner of appropriate expertise to determine the nature and etiology of the Veteran’s claimed obstructive sleep apnea. The examiner is to be provided access to the electronic claims file and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses. Any indicated diagnostic tests and studies should also be accomplished. The examiner should then opine whether the Veteran’s obstructive sleep apnea at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service. The examiner should specifically address the Veteran’s contentions and lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology. The examiner should also address and reconcile any other pertinent evidence of record, if necessary. A complete rationale should also be provided. 4. Forward the claims file to an appropriate VA examiner for addendum opinion regarding the claimed respiratory condition, to include bronchitis and/or asthma. If the examiner believes an additional physical examination of the Veteran would be beneficial, one is to be arranged. The entire claims file must be made available to the examiner for review. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. The examiner is asked to provide the following opinions: (a) Has the Veteran had bronchitis and/or asthma at any time since February 2010? If yes, is it at least as likely as not (50 percent probability or greater) that such disorder had its onset during service or is otherwise related to service? (b) Is it clear and unmistakable that the Veteran’s asthma existed prior to service? The examiner is asked to specifically address and comment on the February 1974 enlistment examination medical history, which notes a history of asthma with the last attack occurring two years earlier. If yes, is it clear and unmistakable that the asthma was not aggravated beyond the normal progression by active service? If no, is it at least as likely as not (50 percent probability or greater) that such disorder had its onset during service or is otherwise related to service? The examiner should specifically consider and address the Veteran’s smoking history and the relevant service treatment records. A supporting rationale for all opinions expressed must be provided. 5. Obtain an addendum opinion from an appropriate VA examiner in order to determine the nature and etiology of the Veteran’s left hip and right knee disabilities. The examiner is to be provided access to the Veteran’s electronic claims file. The examiner is requested to review all pertinent records associated with the claims file, the Veteran’s service treatment records, post-service medical records, and the Veteran’s own assertions. Any indicated diagnostic tests and studies should also be accomplished. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. (a) The VA examiner must opine whether it is at least as likely as not (50 percent or higher degree of probability) that any left hip and right knee disabilities identified manifested in-service or are otherwise causally or etiologically related to her military service. (b) If not directly related to service, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that any identified left hip and right knee disabilities are caused by a service-connected disability. (c) The examiner should then opine whether the left hip and right knee disabilities are aggravated (i.e., permanently worsened beyond the normal progression of that disease) by a service-connected disability. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. All prior reports should be addressed and/or reconciled, as necessary. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, then the Veteran should be scheduled for such an examination. 6. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.