Citation Nr: 21010750 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 05-16 348 DATE: February 25, 2021 REMANDED Entitlement to service connection for hypertension, claimed as a result of exposure to contaminated water at Camp Lejeune, North Carolina, is remanded. Entitlement to service connection for a right eye disability, to include dry eye, blurred vision, double vision, glaucoma, and a cataract, claimed as a result of exposure to contaminated water at Camp Lejeune, North Carolina, is remanded. Entitlement to service connection for a left eye disability, to include dry eye, blurred vision, double vision, glaucoma, and a cataract, claimed as a result of exposure to contaminated water at Camp Lejeune, North Carolina, North Carolina, is remanded. Entitlement to service connection for a recurrent sinus disability, to include sinusitis, claimed as a result of exposure to contaminated water at Camp Lejeune, North Carolina, North Carolina is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to a rating in excess of 30 percent for left facial injury residuals with chronic headaches is remanded. Entitlement to a rating in excess of 10 percent for left knee disability under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260 is remanded. Entitlement to a rating in excess of 10 percent for left knee instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257 is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from March 1976 to March 1980. The Veteran served at Camp Lejeune, North Carolina. The Veteran appeared at an April 2010 hearing before the undersigned Acting Veterans Law Judge at the Waco, Texas, Regional Office. The hearing transcript is of record. In his May 2020, Appeal to the Board (VA Form 9), the Veteran expressly stated that he was not appealing the issue of a rating in excess of 50 percent for sleep apnea. Therefore, the issue is not on appeal and will not be addressed below. 1. Entitlement to service connection for hypertension, claimed as a result of exposure to contaminated water at Camp Lejeune, North Carolina, is remanded. Service connection may be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for sleep apnea, left facial injury residuals with chronic headaches, major depressive disorder, a left knee disability, and a left knee scar. An April 2014 Veterans Health Administration opinion from a medical expert in hypertension conveys that the Veteran was diagnosed with hypertension. The Department of Veterans Affairs (VA) physician concluded that the Veteran had risk factors for developing hypertension including obstructive sleep apnea. In February 2015, the Agency of Original Jurisdiction established service connection for sleep apnea. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not been afforded a VA evaluation which addresses the relationship between the diagnosed hypertension and the service connected sleep apnea. 2. Entitlement to service connection for both a right eye disability and a left eye disability, to include dry eye, blurred vision, double vision, glaucoma, and a cataract claimed as a result of exposure to contaminated water at Camp Lejeune, North Carolina, is remanded. The report of a July 2013 VA eye examination states that the Veteran was diagnosed with dry eye and cataracts. The examiner commented that “hypertension medicine can cause dryness.” The report of a July 2015 eye examination conducted for VA relates that the Veteran was diagnosed with dry eye, cortical cataracts, and glaucoma. The examiner opined that the dry eye was “likely related to a combination of factors” including hypertension medications. Given the VA examiners’ findings that the diagnosed dry eye is related to the use of antihypertensive medication, the Board of Veterans’ Appeals (Board) finds that the issues of service connection for a right eye disability and a left eye disability are inextricably intertwined with the issue of service connection for hypertension being remanded and must also be remanded. 3. Entitlement to service connection for a recurrent sinus disability, to include sinusitis, claimed as a result of exposure to contaminated water at Camp Lejeune, North Carolina, North Carolina is remanded. An April 2007 VA treatment record states that the Veteran was diagnosed with acute sinusitis. A December 2007 VA treatment record notes that the Veteran experienced frontal sinus headaches. An April 2008 private treatment record states that the Veteran was treated for sinus complaints. A November 2011 VA sinus computerized tomography study revealed findings consistent with “mild bilateral maxillary and minimal bilateral ethmoid sinus disease.” The report of a July 2013 VA examination states that the Veteran’s claims file was not available for review. However, the November 2011 VA computerized tomography study showing bilateral maxillary and ethmoid sinus disease was noted. The Veteran was diagnosed with rhinitis. The examiner commented that “no chronic sinus problem seen.” An October 2013 addendum to the July 2013 VA examination reports clarifies that the examiner “found no evidence of chronic sinus disorder.” The VA physician did not address the prior VA findings of sinus disease. Given the absence of contemporaneous review of the clinical record and the cited deficiency, the Board finds that the July 2013 VA examination report and the October 2013 addendum thereto to be of essentially no probative value and further VA sinus examination is needed. 4. Entitlement to service connection for a right knee disability is remanded. The report of a September 2017 VA knee examination states that the Veteran was diagnosed with right knee osteoarthritis. The examiner concluded that “it is less likely than not that the right knee condition is secondary to the left knee.” The physician’s assistant commented that “the orthopedic literature does not support such an association” and “injury to 1 weight bearing joint helps to protect the others by reducing overall activity level.” He did not address whether the diagnosed right knee osteoarthritis had been aggravated (increased in severity beyond its natural progression) by the left knee disability and the other service connected disabilities. Therefore, the Board finds that the examination report is of limited probative value. The report of an October 2017 knee examination conducted for VA states that the “degenerative joint disease of left knee and right knee are a result of the natural aging process and weight gain/obesity.” The examining physician’s assistant did not address whether the diagnosed right knee osteoarthritis had been aggravated by the left knee disability and the other service connected disabilities. Therefore, the Board finds that the examination report is of limited probative value. The report of a September 2018 VA knee examination states that the Veteran was diagnosed with right knee strain, “tendonitis/tendinosis,” osteoarthritis, and bursitis. The examiner did not advance an opinion as to the relationship between the diagnosed right knee disabilities and active service and the service connected disabilities. Therefore, the Board finds that the examination report is of limited probative value. In light of the cited deficiencies in the examination reports of record, the Board finds that further VA knee evaluation is needed. 5. Entitlement to service connection for a left hip disability is remanded. The report of an October 2017 hip examination conducted for VA, the Veteran was diagnosed with left hip strain. The examiner concluded that “the claimed condition is less likely than not (less than 50 percent probability) proximately due to or a result of the Veteran’s service connected condition.” The physician’s assistant commented that “there is currently no established peer reviewed orthopedic literature that supports this contention.” She did not address whether the diagnosed left hip strain had been aggravated by the left knee disability and the other service connected disabilities. Therefore, the Board finds that the examination report is of limited probative value and further VA hip evaluation is needed. 6. Entitlement to a rating in excess of 30 percent for left facial injury residuals with chronic headaches is remanded. The report of a September 2018 VA headaches examination states that the Veteran reported “headache episodes every day, ‘non stop.” The examining physician’s assistant commented that “there is no documentation/objective findings to support the constant daily incapacitating throbbing headache.” An October 2018 VA treatment record states that the Veteran was seen for his complaints of daily “recurrent or intractable headaches.” Given his competent statements as to experiencing daily incapacitating headaches, the Board finds that further VA headache evaluation is needed. Clinic documentation dated after March 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 7. Entitlement to ratings in excess of 10 percent for both a left knee disability under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260 and left knee instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257 is remanded. The report of the September 2018 VA knee examination states that the Veteran exhibited a left knee range of motion of 0 to 90 degrees with pain; pain with weight bearing; and an inability to perform left knee stability testing due to pain. The examiner commented that “there is evidence of pain on passive range of motion testing and non-weight bearing testing of the left knee.” The physician did not indicate the degree at which the Veteran experienced pain on motion of the left knee. Because of that deficiency, the Board finds that the functional loss associated with the service connected left knee disability is unclear and the examination report is of limited probative value. VA has recently amended that portion of 38 C.F.R. Part 4 which pertain to musculoskeletal disabilities. On February 7, 2021, the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5257 addressing impairment of the knee were amended. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5257). Because of the cited deficiencies in the September 2018 VA knee examination and the recent amendment of the relevant diagnostic codes, the Board finds that further VA knee evaluation is needed. 8. Entitlement to a TDIU is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service connected disabilities. As the claim for TDIU is inextricably intertwined with other claims being remanded, the issue of entitlement to TDIU must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any hypertension, eye, sinus, right knee, and left hip disabilities and the service connected left facial injury residuals with headaches and left knee disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Associate with the record any VA medical records for treatment provided after March 2020 not already of record. 3. Schedule the Veteran for a VA hypertension examination conducted by an appropriate medical doctor to assist in determining the nature of the Veteran’s hypertension and any relationship to active service or a service connected disability. The examiner must review the record, including the April 2014 Veterans Health Administration opinion, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all hypertension found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hypertension had its onset during active service or is related to any incident of service, including the Veteran’s presumed exposure to contaminated water at Camp Lejeune, North Carolina. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hypertension is due to or the result of sleep apnea and the other service connected disabilities. The examiner should specifically discuss the April 2014 Veterans Health Administration opinion. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified hypertension has been aggravated (permanently increased in severity beyond the natural progression of the disorder) by the sleep apnea and the other service connected disabilities. The examiner should specifically discuss the April 2014 Veterans Health Administration opinion. 4. Schedule the Veteran for a VA sinus examination conducted by an appropriate medical doctor to assist in determining the nature of the claimed recurrent sinus disability and any relationship to active service or a service connected disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent sinus disabilities found. If no recurrent sinus disability is identified, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent sinus disability had its onset during active service or is related to any incident of service, including the Veteran’s documented left facial injury and presumed exposure to contaminated water at Camp Lejeune, North Carolina. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent sinus disability is due to or the result of the left facial injury residuals with chronic headaches and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified recurrent sinus disability has been aggravated (permanently increased in severity beyond the natural progression of the disorder) by the left facial injury residuals with chronic headaches and the other service connected disabilities. 5. Schedule the Veteran for a VA examination conducted by an appropriate medical doctor to assist in determining the nature of the right knee and left hip disabilities and their relationship, if any, to active service or a service connected disability and the nature and severity of the service connected left knee disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all right knee and left hip disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified right knee disability and left hip disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified right knee disability and left hip disability is due to or the result of the left knee disability and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified right knee disability and left hip disability has been aggravated (permanently increased in severity beyond the natural progression of the disorder) by the left knee disability and the other service connected disabilities. (e) Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of the left knee. The examiner should specifically indicate the degree at which the Veteran experiences pain on motion of the left knee. (f) State whether there is any additional loss of function of the left knee due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (g) State whether there is any recurrent lateral instability or subluxation of the left knee and, if so, the severity of any instability or subluxation. (h) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the left knee and the other service connected disabilities. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service connected disabilities. 6. Schedule the Veteran for a VA examination conducted by the appropriate medical doctor to determine the current nature and severity of the service connected left facial injury residuals with chronic headaches. The examiner must review the claims record and must note that review in the report. All indicated tests should be conducted. All pertinent symptomatology and findings must be reported in detail. The examiner should: (a) Report the number and frequency of characteristic prostrating attacks, if any, during all relevant periods and any associated economic inadaptability as a result of the headaches. (b) Opine as to the impact of the left facial injury residuals with chronic headaches on the Veteran’s vocational pursuits. If the Veteran is not currently employed, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.