Citation Nr: 21009509 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-40 213 DATE: February 22, 2021 REMANDED Entitlement to service connection for a cardiovascular disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a neurological disability, claimed as vertigo is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. Entitlement to service connection for radiculopathy of the bilateral upper extremities is remanded. Entitlement to service connection for radiculopathy of the bilateral lower extremities is remanded. Entitlement to a disability rating in excess of 20 percent for multilevel spondylosis and mild spinal stenosis of the lumbar spine is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Coast Guard from June 1961 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2013 and February 2015 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran previously requested a hearing before a Veterans Law Judge; that request was, however, withdrawn by the Veteran in January 2019. 1. Entitlement to service connection for a cardiovascular disability is remanded. As this case is in the legacy appeals system, the laws and regulations pertinent to that system apply. Under 38 U.S.C. § 7105(e), for cases in which substantive appeals are received on or after February 2, 2013, as is the case here, if the claimant or the claimant’s representative submits evidence to the agency of original jurisdiction (AOJ) or the Board for consideration in connection with the issue on appeal, the Board may consider such evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review such evidence. This automatic waiver is an exception to the general requirement of a waiver of AOJ review or a supplemental statement of the case considering new pertinent evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. In the present case, since the most recent October 2015 and January 2016 statements of the case, issued for the appeal herein, additional relevant evidence, in the form of VA treatment records for the disabilities on appeal herein, was associated with the claims file. As noted above, the automatic AOJ waiver exception does not apply to evidence that was not submitted by the claimant or representative. The Veteran was sent a November 2020 letter asking whether he wished to waive AOJ consideration of the additional evidence. The letter indicated that if the Board did not hear from the Veteran within 45 days, it would assume that he did not wish to have the Board decide his appeal at this time. To date, the Veteran has not replied to this letter and a remand of all issues associated with this appeal is required. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for erectile dysfunction is remanded. The Veteran seeks service connection for erectile dysfunction. The Board notes he has already been granted service connection for benign prostate hypertrophy, and has a pending claim for service connection for bladder cancer. The RO has deferred a rating decision on this pending claim. The National Defense Authorization Act for Fiscal Year 2021 amended 38 U.S.C. § 1116(s)(2) to include three additional disorders on the list of diseases presumptively associated with exposure to herbicide agents. These disabilities are parkinsonism, bladder cancer, and hypothyroidism. Service connection also may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. As the Veteran has claimed, in part, that his erectile dysfunction is the result of a service-connected disability or disabilities, a medical opinion is required to determine if this disability is due to or aggravated by a service-connected disability. 4. Entitlement to service connection for a psychiatric disability is remanded. 5. Entitlement to service connection for a neurological disability, claimed as vertigo is remanded. 6. Entitlement to service connection for a bilateral hip disability is remanded. 7. Entitlement to service connection for a bilateral knee disability is remanded. 8. Entitlement to service connection for a bilateral ankle disability is remanded. 9. Entitlement to service connection for radiculopathy of the bilateral upper extremities is remanded. 10. Entitlement to service connection for radiculopathy of the bilateral lower extremities is remanded. In support of his claim, the Veteran submitted the June 2014 statement of M.H., M.D., a private physician who reported having treated the Veteran for several years for orthopedic complaints. Dr. H. noted the Veteran had spondylosis and spinal stenosis of the lumbosacral spine, with resulting radiculopathy in the lower extremities. In light of this pertinent evidence, VA must obtain a VA examination and/or opinion regarding whether the Veteran has radiculopathy of the upper or lower extremities resulting from his service-connected multilevel spondylosis and spinal stenosis of the lumbosacral spine. 11. Entitlement to a disability rating in excess of 20 percent for multilevel spondylosis and mild spinal stenosis of the lumbar spine is remanded. The Veteran was provided with VA examinations in October 2013 and January 2015. Upon review, the Board finds that these VA examination reports are inadequate in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (Court), in Correia, has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. On review, the recent VA examination reports only included active range of motion findings and did not include range of motion findings for passive range of motion. The examination reports also did not specify whether the results were weight-bearing or non-weight-bearing. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new VA examination is required. 12. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU rating is intertwined with the issues being remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his lumbosacral spine disability. His claims file must be made available to the examiner for review in connection with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner should provide the range of motion of the Veteran’s lumbosacral spine disability and comment on the degree of functional loss due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The examiner should report (in degrees) the point at which pain is objectively recorded. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbosacral spine is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing if possible. The examiner must also identify whether the Veteran has radiculopathy of the upper and/or lower extremities, and whether any such radiculopathy is due to or aggravated by his service-connected lumbosacral spine disability. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Schedule the Veteran for a genitourinary examination to determine whether he has erectile dysfunction. The claims file must be provided the examiner in conjunction with the examination. After reviewing the record and examining the Veteran, the examiner is asked to state whether it is at least as likely as not any current erectile dysfunction is due to or aggravated by benign prostate hypertrophy and/or bladder cancer. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page.)   3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.