Citation Nr: 21011815 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 12-11 866 DATE: March 2, 2021 REMANDED Entitlement to a rating in excess of 20 percent for left shoulder degenerative joint disease (DJD) is remanded. Entitlement to service connection for hypertension, to include as due to service-connected disabilities or exposure to herbicide agents, 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 from May 1966 to May 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in October 2010 and April 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In an August 2017 decision, the Board, as relevant, denied a rating in excess of 20 percent for left shoulder DJD and remanded the claim for service connection for hypertension. The Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court) which, in March 2019, issued a Memorandum Decision vacating and remanding the Board’s August 2017 decision to the extent that it denied the Veteran’s increased rating claim and did not assume jurisdiction over a claim for a TDIU. In light of the parties’ findings and a January 2015 application for a TDIU in which he alleged that his service-connected disabilities rendered him unemployable, the Board subsequently assumed jurisdiction over such claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In October 2018, the Board remanded the Veteran’s claim for service connection for hypertension and, in July 2020, the remaining claims for additional development. The case now returns for further appellate review. The Board notes that, in October 2020, the Veteran was sent a letter indicating that he had elected an in-person hearing with a Veterans Law Judge and, in light of COVID 19, was encouraged to opt into a virtual hearing; however, such letter was sent in error as his Board hearing was previously held in October 2016 and he has not subsequently requested a second hearing. Quinn v. Wilkie, 31 Vet. App. 284 (2019); Cook v. Snyder, 28 Vet. App. 330 (2017). 1. Entitlement to a rating in excess of 20 percent for left shoulder DJD. In July 2020, the Board found that, in light of the Court’s determination in the March 2019 Memorandum Decision that VA examinations of the Veteran’s left shoulder disability conducted in September 2010, April 2012, and April 2016 failed to adequately consider the functional loss due to such disability, a remand was necessary in order to obtain a retrospective medical opinion addressing the findings in such examinations pursuant to DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Thereafter, the Veteran underwent another VA examination in November 2020, at which time he reported pain and stiffness in his left shoulder and a reduced ability to move his arm as he used to do. Upon active and passive range of motion (ROM) testing, he had flexion to 65 degrees, abduction to 65 degrees and external rotation to 45 degrees and internal rotation to 75 degrees with pain, to include on weight-bearing and non-weight-bearing, in all planes, except internal rotation. Due to such limitation of ROM, the Veteran was unable to shave, wash his scalp, pick up his grandchildren, or coach sports and had difficulty reeling in fish when fishing. There was no additional functional loss or range of motion following repetitive testing. The examiner also found that the examination is medically consistent with the Veteran’s statements describing functional loss with repeated use over time and during flare-ups, but she did not indicate whether such resulted in additional loss of ROM. Furthermore, while she noted the ROM findings from the April 2016 VA examination (forward flexion to 70 degrees and abduction to 60 degrees), found that the Veteran an additional decrease in his ROM at the November 2020 VA examination, and observed that he reported that he cannot shave or wash his scalp with his left arm during a flare-up, which resulted in an assumption that the ROM during a flare-up would be to 70 degrees or less, she did not address the ROM findings at the September 2010 or April 2012 VA examinations or offer the retrospective opinion as requested. Additionally, while she further stated that it was possible that there is decreased ROM after repetitive activity and/or during a flare-up, she did not provide an estimate of such additional loss of ROM or indicate that, despite considering all procurable data, no member of the medical community at large could provide such an opinion without resorting to speculation. Consequently, another remand is necessary in order to ensure compliance with the March 2019 Memorandum Decision and July 2020 Board remand by obtaining an addendum opinion that adequately addresses the Board’s inquiries. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for hypertension, to include as due to service-connected disabilities or exposure to herbicide agents. As an initial matter, the Board observes the Veteran originally claimed service connection for hypertension as secondary to his service-connected diabetes mellitus, type II, or due to exposure to herbicide agents. In this regard, at an April 2012 VA examination, the examiner opined that it was less likely than not that the Veteran’s hypertension was caused by his service-connected diabetes, citing to numerous medical records showing the Veteran’s hypertension was diagnosed prior to his diabetes. Furthermore, at a November 2017 VA examination, the examiner reviewed the record and relevant medical literature, and opined that the Veteran’s hypertension was less likely than not related to his military service, to include his exposure herbicide agents, noting that the medical literature regarding the subject does not support such a relationship, and the etiology of his hypertension was multifactorial, primarily due to risk factors not related to service. The examiner also opined that the Veteran’s hypertension was less likely than not aggravated by his diabetes, stating that there was no evidence to support that his hypertension was permanently worsened beyond the natural progression of the disease. However, in an October 2018 Appellant’s Post-Remand Brief, the Veteran’s representative raised new theories of entitlement. Specifically, he contended that the Veteran’s service-connected disabilities other than diabetes, to include prostate cancer and posttraumatic stress disorder (PTSD), may have caused or aggravated his hypertension, and cited to several studies. In an August 2019, after a review of the medical literature, the November 2017 VA examiner again opined the Veteran’s hypertension was less likely than not caused or aggravated by his PTSD and/or his prostate cancer as such disabilities are not known risk factors for the development of hypertension. Further, she again stated the Veteran’s hypertension is due to his multifactorial risk factors of race, age, family history (mother with hypertension), high sodium intake, and lack of physical activity. However, as observed by the Veteran’s representative in an October 2019 statement, the November 2017 VA examiner’s opinion addressing whether the Veteran’s hypertension is related to his acknowledged exposure to herbicide agents is outdated since the National Academy of Science (NAS) Institute of Medicine (IOM) subsequently upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association with exposure to Agent Orange to the category of “sufficient” evidence of an association in Update 11 (2018). According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. Further, at such time, he submitted cited additional medical articles that suggest a relationship between PTSD and hypertension. Consequently, the Board finds that a remand is necessary in order to obtain an addendum opinion that addresses such matters. 3. Entitlement to a TDIU. The Veteran’s claim for a TDIU is inextricably intertwined with the claims remanded herein as the development ordered may impact the outcome of such claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, adjudication of such matter must be deferred pending the development and readjudication of the remanded claims. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this remand, to an appropriate VA examiner so as to obtain a retrospective opinion regarding the findings referable to the Veteran’s left shoulder disability rendered at the September 2010, April 2012, April 2016, and November 2020 VA examinations. Following a review of the record, the examiner should address the below inquiries: (A) The examiner is requested to review the September 2010, April 2012, and April 2016 VA examinations containing the Veteran’s reports of functional loss of his left shoulder during flare-ups. He or she should then provide an opinion based on estimates derived from the information as to the additional function and loss of range of motion that may be present during a flare-up, expressed, if possible, in degrees at the time of such examinations. (B) The examiner is requested to review the November 2020 VA examination containing the Veteran’s reports of functional loss of his left shoulder. He or she should then provide an opinion based on estimates derived from the information as to the additional function and loss of range of motion that may be present (1) following repeated use over time and (2) during a flare-up, expressed, if possible, in degrees at the time of such examination. If the examiner cannot provide the foregoing opinions without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss present following repeated use over time and/or during a flare-up elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale for any opinion offered should be provided. 2. Return the record, to include a copy of this remand, to the VA examiner who offered the November 2017/August 2019 opinion addressing the etiology of the Veteran’s hypertension for an addendum opinion, or an appropriate substitute if she is unavailable. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension is related to his acknowledged in-service exposure to herbicide agents? In offering such opinion, the examiner should address the fact that NAS IOM upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association with exposure to Agent Orange to the category of “sufficient” evidence of an association in Update 11 (2018). According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. (B) Is it at least as likely as not (i.e., a 50 percent or a greater probability) that the Veteran’s hypertension is caused or aggravated by his service-connected PTSD? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering such opinion, the examiner should consider the medical articles cited by the Veteran’s representative in October 2019, identified as “Posttraumatic Stress Disorder and Hypertension in Australian Veterans of the 1991 Gulf War,” published in from the Journal of Psychosomatic Research, and “Hypertension in Relation to Posttraumatic Stress Disorder and Depression in the US National Comorbidity Study,” which suggest that PTSD has been associated with greater rates of hypertension. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, Associate 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. .