Citation Nr: 21011060 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-09 248 DATE: February 26, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an earlier effective date of March 21, 2017 for the 40 percent rating assigned for lumbosacral strain and discogenic disease is granted. REMANDED Entitlement to service connection for a gastrointestinal disability, other than gastroesophageal reflux disease (GERD) with chronic gastritis and irritable bowel syndrome, claimed as diverticulosis, is remanded. Entitlement to service connection for a prostate disability, claimed as prostate cancer, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for osteopenia is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for neurological impairment of the left upper extremity, claimed as peripheral neuropathy, is remanded. Entitlement to service connection for neurological impairment of the right upper extremity, claimed as peripheral neuropathy, is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for neurological impairment of the left lower extremity, claimed as peripheral neuropathy, is remanded. Entitlement to service connection for neurological impairment of the right lower extremity, claimed as peripheral neuropathy, is remanded. Entitlement to an initial rating in excess of 40 percent for lumbosacral strain and discogenic disease is remanded. Entitlement to an initial rating in excess of 30 percent for GERD with chronic gastritis and irritable bowel syndrome is remanded. Entitlement to an initial compensable rating for hemorrhoids is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. It is at least as likely as not the Veteran experienced tinnitus in service with recurrent symptoms ever since his separation from service. 2. The Veteran has at least as likely as not had limitation of forward flexion of the thoracolumbar spine to 30 degrees or less since the date of his initial March 2017 service connection claim. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for an earlier effective date of March 21, 2017 for the 40 percent rating assigned for lumbosacral strain and discogenic disease have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1974 to January 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. These matters were previously before the Board in April 2019 when they were remanded for further development, which will be discussed in more detail as necessary below. 1. Entitlement to service connection for tinnitus Certain chronic diseases listed in 38 C.F.R. § 3.309(a) will be service connected on a presumptive basis if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Tinnitus is an organic disease of the nervous system and is therefore a chronic disease under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran’s lay reports are sufficient to establish manifestation of tinnitus in service and continuously thereafter. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). A January 2017 private medical assessment documents the Veteran’s reports of tinnitus since active service. The only other evidence in this regard is an August 2017 VA examination report that indicates no opinion regarding tinnitus was given because tinnitus was not reported during the examination. The private medical assessment is no more or no less probative than the August 2017 VA examination. As a result, it is at least as likely as not the Veteran experienced tinnitus in service with recurrent symptoms ever since his separation from service because there is an approximate balance of favorable and negative evidence in this regard. The Board notes recurrent tinnitus is a compensable disability. See 38 C.F.R. § 4.87, Diagnostic Code 6260. Resolving reasonable doubt in the Veteran’s favor, the Board finds service connection for tinnitus is warranted pursuant to the chronic disease presumption of 38 U.S.C. § 1112(a)(1). See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to an earlier effective date for the 40 percent rating assigned for lumbosacral strain and discogenic disease Subsequent to the Board’s April 2019 remand, the Agency of Original Jurisdiction (AOJ) issued a July 2020 rating decision that increased the rating assigned for the Veteran’s service-connected lumbosacral strain and discogenic disease to 40 percent, effective November 14, 2019, which coincides with the date of a VA examination that revealed the Veteran’s forward flexion of the thoracolumbar spine is limited to 30 degrees or less when considering the effect of flare-ups. As noted in its April 2019 remand, the Board finds the Veteran’s previous thoracolumbar spine examination report was inadequate for rating purposes because it did not adequately address additional range of motion loss during flare-ups; however, the Veteran’s November 2019 VA examiner provided an estimate of additional range of motion loss during flare-ups, constituting substantial compliance with the Board’s prior remand directives and leading to the assignment of a significantly higher rating. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Stegall v. West, 11 Vet. App. 268 (1998). Given the inadequacy of the previous examination report, the Board finds the November 2019 VA examination report probative with respect to the Veteran’s level of functional impairment during flare-ups throughout the appeal period. Accordingly, an earlier effective date of March 21, 2017 is warranted for the 40 percent rating currently assigned for lumbosacral strain and discogenic disease, which corresponds to effective date of service connection for the disability. The Board acknowledges this constitutes a partial grant of the Veteran’s appeal since a higher initial rating is possible for lumbosacral strain and discogenic disease; therefore, the Board is remanding the issue of higher initial rating to the AOJ to ensure compliance with VA’s duty to assist, as discussed in more detail below. Nevertheless, an earlier effective date of March 21, 2017 is warranted for the 40 percent rating assigned for lumbosacral strain and discogenic disease, and, to that extent, the Veteran’s appeal is granted. REASONS FOR REMAND In April 2019, the Board remanded the issues on appeal, in pertinent part, due to ambiguity in the record as to whether there are outstanding VA treatment records for the Veteran. The AOJ’s post-remand development indicates there are no VA treatment records available for the Veteran. Rather, the evidence suggests the Veteran receives care from private providers. For example, during his November 2019 VA gastrointestinal examination, the Veteran reported he receives treatment through a private gastrointestinal specialist, Dr. M. Yet, there are little to no records available from this provider. Similarly, there are little to no private treatment records for the Veteran’s other significant health conditions even though the record otherwise establishes he does not receive care through the Veterans Health Administration. Thus, the Board finds reasonable efforts should be made to ensure all available private treatment records have been obtained and associated with the claims file prior to a decision on the Veteran’s appeals to ensure compliance with VA’s duty to assist. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The Veteran is advised to cooperate with the AOJ’s efforts to develop such evidence or he will subject himself to having the issues on appeal adjudicated based on the evidence of record, which at this time is insufficient to establish entitlement to the benefits sought. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (indicating the duty to assist is not always a one-way street). Additionally, the Board finds the November 2019 opinion the AOJ obtained regarding the Veteran’s service connection claim for diverticulosis is inadequate to make an informed decision on that claim. The Board notes after the obtainment of the November 2019 opinion the AOJ granted service connection for irritable bowel syndrome in addition to the previously service-connected chronic gastritis with GERD. The November 2019 opinion does not address the possibility that irritable bowel syndrome could have caused or aggravated the explicitly claimed diverticulosis, making a new opinion necessary to ensure the decision on the Veteran’s claim is fully informed. Finally, the Board finds further development is necessary regarding the Veteran’s service connection claim for neurological impairment of the bilateral lower extremities. The Board notes radiculopathy is noted throughout the Veteran’s records from the Social Security Administration (SSA), which date back to the 1990s, while the Veteran’s VA examiners during the appeal period have consistently reported that the Veteran does not have any neurological impairment associated with his service-connected lumbar spine disability. While the Board had hoped current treatment records would be more illuminative in this regard, it nevertheless finds an opinion explicitly addressing this aspect of the Veteran’s claim is necessary due to the well-documented history of radiculopathy in the past. The matters are REMANDED for the following action: 1. Make reasonable efforts to assist the Veteran in obtaining any outstanding private treatment records, to include, but not limited to, those from his private gastrointestinal specialist, Dr. M., as discussed during his November 2019 VA examination. 2. Schedule the Veteran for a new examination regarding his service connection claim for a gastrointestinal disability, other than GERD with chronic gastritis and irritable bowel syndrome, claimed as diverticulosis. The selected examiner must provide an opinion addressing whether the Veteran’s diverticulosis is at least as likely as not proximately due to, or aggravated by, any of his service-connected gastrointestinal disabilities, to include GERD, chronic gastritis, irritable bowel syndrome, and/or hemorrhoids. The opinion must explicitly address a theory of both causation and aggravation for GERD, chronic gastritis, irritable bowel syndrome, and hemorrhoids be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner must be further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for each conclusion contained therein. 3. Schedule the Veteran for an examination regarding his service connection claim for neurological impairment of the bilateral lower extremities. The selected examiner must provide an opinion addressing whether the Veteran has neurological impairment of either (or both lower extremities) that is at least as likely as not proximately due to, or aggravated by, his service-connected lumbar spine disability. The opinion must explicitly address both causation and aggravation to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If neurological impairment of either (or both lower extremities) is not found on examination, the examiner must discuss the history of lumbar radiculopathy noted in the Veteran’s SSA records and discuss whether this condition was noted in error or whether the condition has since resolved with the examiner still being required to provide the requested opinion if the condition has been present at any point in the appeal, i.e., since approximately March 2017. The examiner must be further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for each conclusion contained therein. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.