Citation Nr: 21009049 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 06-15 440 DATE: February 18, 2021 REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1977 to March 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2005 and September 2007 rating decisions of the Regional Office (RO). In February 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript has been associated with the record. In April 2012, the Board remanded the claims for further development. Thereafter, an August 2017 Board decision denied the claim of entitlement to service connection for a lumbar spine disorder, and remanded the claims of entitlement to service connection for diabetes mellitus, hypertension, and a heart disorder to the RO for additional development. Upon the issuance of a March 2018 supplemental statement of the case (SSOC) which continued the denial of all three claims remanded in August 2017, the case was returned to the Board for adjudication. As for the issue of entitlement to service connection for degenerative disc disease of the lumbar spine, the Veteran appealed the denial of this issue to the United States Court of Appeals for Veterans Claims (Court). In December 2018, the Court granted a Joint Motion to vacate the denial and remanded the matter back to the Board for readjudication. Specifically, the Court instructed that, pursuant to its holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), VA was under obligation to consider entitlement to service connection for degenerative disc disease generally, so including both the lumbar spine AND the cervical spine. Thereafter, in the most recent Board decision, dated in August 2019, the Board bifurcated the original claim seeking service connection for degenerative disc disease into two separate claims of service connection for degenerative disc disease of the lumbar spine and cervical spine, characterized as lumbar and cervical spine disorders. Those two claims were then addressed in the REMAND portion of the decision. In that same August 2019 Board decision, it was explained that, in light of the facts found, the claim of entitlement to service connection for myocardial infarction/ heart disability was also recharacterized as one seeking service connection for a heart condition, to include coronary artery disease and/or residuals of a myocardial infarction. Then, the claims for a heart condition, diabetes mellitus, and hypertension were denied by the Board. The Veteran appealed the August 2019 denials of the claims for a heart condition, diabetes mellitus, and hypertension to the Court. In August 2020, the Court granted a Joint Motion to vacate the denials of these matters and remanded the claims back to the Board for readjudication. Specifically, the Court found a September 2017 addendum opinion relied upon by the Board in denying the claims was inadequate for rating purposes, and directed a new opinion be obtained. The Court also determined the Board erred in failing to address potentially relevant evidence by not discussing a November 2007 statement from the Veteran’s treating VA physician; failing to obtain potentially relevant private treatment records; and, failing to address whether the Veteran’s wife is competent to provide an etiological opinion on these claims. Regrettably, the Board finds another remand is required for all matters on appeal. The Board sincerely regrets the additional delay a remand will undoubtedly cause; however, in order to ensure the Veteran has every possible opportunity to substantiate the claims and to fully address the Veteran’s contentions, the Board finds additional development is required. 1. Diabetes mellitus, a heart condition, hypertension As discussed above, in August 2020, the Court granted a Joint Motion to vacate the denials of these matters and remanded the claims back to the Board for readjudication. The Veteran is seeking entitlement to service connection for these disorders that he believes is due to his service and, specifically, as due to his exposure to a variety of hazardous chemicals through his work as a material handler. In the August 2020 Joint Motion, the parties found a September 2017 addendum opinion relied upon by the Board in denying the claims was inadequate for rating purposes. Specifically, the parties agreed that the September 2017 examiner noted risk factors for diabetes, heart disease, and hypertension, but did not provide an explanation for the determination that none of the conditions were related to Veteran’s claimed exposure to pollutants/chemicals in service. It was then ordered a new opinion be obtained to provide an adequate rationale. Therefore, a remand is required in order to comply with the August 2020 Joint Motion directives to obtain the requested opinions. It was also noted that the Board erred in failing to obtain potentially relevant private treatment records identified in the record. Therefore, on remand, the RO is directed to undertake any actions necessary to obtain these records, if available. 2. Lumbar and cervical spine disorders The Veteran contends that he has lumbar and cervical spine disorders that are attributable to service, to include as due to his exposure to a variety of hazardous chemicals through his work as a material handler. See July 2020 Correspondence. The Board notes these claims were previously remanded in the August 2019 Board in compliance with the December 2018 Joint Motion, and the requested opinions regarding the etiology of the claimed disorders were obtained in November 2019. The examiner determined that it was less likely than not that the diagnosed disorders were due to the Veteran’s military service, citing to the fact there were no in-service complaints or treatment pertaining to the lumbar or cervical spines. Further, the examiner noted the 1998 post-service injury, which resulted in two surgeries. The examiner briefly noted a statement from Dr. J.C., dating from 1998, that indicated the presence of degenerative disc disease of the lumbar and cervical spines due to the physically demanding jobs held by the Veteran both in-service and since, but determined there was no evidence to indicate the lumbar or cervical spine disorders began during service. The Veteran submitted a July 2020 correspondence in response to the November 2019 etiological opinions. In relevant part, the Veteran correctly points to the fact the November 2019 examiner again neglected to address the Veteran’s contentions that he experienced low back pain in service and has continued to experience such pain since service. Further, the examiner again did not address statements made by the Veteran’s treating physician following the workplace injury to his back in 1998, Dr. J.C., who noted on multiple occasions that there was evidence of the Veteran having injured his back prior to the 1998 workplace injury. Finally, the July 2020 correspondence raises the theory that these disorders are also due to exposure to pollutants/chemicals to which the Veteran may have been exposed, including his period of service while stationed at Ellsworth AFB. Therefore, a remand for an addendum opinion is again required in order to ensure full compliance with the December 2018 Joint Motion and August 2019 Board remand directives. The matters are REMANDED for the following action: 1. Obtain any available VA and private treatment records not presently associated with the claims file. Regarding any private treatment records, please send the Veteran the appropriate form to provide the release to VA to request these records. As specifically identified by the August 2020 Joint Motion, VA must undertake the required efforts to obtain the following identified records: • August 23, 2005,VA medical note referencing Dr. Sandman; • April 15, 2008, VA Education note referencing flu shot at Waverly; and, • December 16, 2008, VA medical noted referencing labs completed by an “outside Dr.” 2. Next, the AOJ should forward the Veteran’s claims file to a qualified medical professional (or professionals, if needed) for additional medical opinions. The entire record, including this REMAND, must be reviewed. First, the examiner is requested to provide an opinion as to whether the Veteran currently has any heart disease. If so, list all current diagnoses and indicate whether it is at least as likely as not (50 percent probability or greater) that any current heart disease is related to his period of service, to include as a result of any pollutants/chemicals to which the Veteran may have been exposed to, including his period of service while stationed at Ellsworth AFB. Regarding diabetes mellitus and hypertension, the examiner is requested to determine whether it is at least as likely as not (50 percent probability or greater) that any current diabetes and hypertension disabilities are related to the Veteran’s period of service, specifically as a result of any pollutants/chemicals to which the Veteran may have been exposed to, including his period of service while stationed at Ellsworth AFB. • The examiner MUST comment on the following November 2007 statement from the treating VA physician: “Have advised that the most likely element that could contribute to these findings would be environmental, and as a uranium handler, even his A-plant exposure may have been great to uranium.” • The examiner MUST also comment on the medical treatise information submitted by the Veteran included in the claims file regarding these disabilities. A complete rationale for all opinions must be provided. Please so state if a follow-up examination is necessary to resolve any of the questions posed here. 3. Schedule the Veteran for a VA an addendum opinion regarding the nature and etiology of the claimed degenerative disc disease of the cervical spine and lumbar spine. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions relating to any cervical and/or lumbar symptomatology. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed cervical spine condition is related to the Veteran’s military service, to specifically include as a result of any pollutants/chemicals to which the Veteran may have been exposed to, including his period of service while stationed at Ellsworth AFB. The examiner must provide a separate opinion as to whether it is at least as likely as not that the degenerative disc disease of the lumbar spine is related to the Veteran’s military service, to specifically include as a result of any pollutants/chemicals to which the Veteran may have been exposed to, including his period of service while stationed at Ellsworth AFB. In setting forth these opinions, the examiner should consider the Veteran’s statements that he experienced back pain in service due to his duties on the flight line, as well as treatment records prepared by a Dr. J.C. dating from 1998 forward in which he diagnosed the Veteran with cervical spine degenerative disease and suggested that the Veteran was experiencing degenerative disc disease PRIOR TO his workplace injury in 1998. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.