Citation Nr: 21012082 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 19-19 538 DATE: March 3, 2021 REMANDED The issue of service connection for a cervical spine disability is remanded. The issue of service connection for a left shoulder disability is remanded. The issue of service connection for a right shoulder disability is remanded. The issue of service connection for a right knee disability is remanded. The issue of service connection for a left knee disability is remanded. The issue of service connection for traumatic brain injury (TBI) is remanded. The issue of service connection for a sleep disorder is remanded. The issue of service connection for memory loss is remanded. The issue of service connection for cognitive problems is remanded. The issue of service connection for headaches is remanded. The issue of service connection for mood swings is remanded. The issue of service connection for issues with concentration and decreased focus is remanded. The issue of service connection for hypothyroidism is remanded. The issue of service connection for multiple colds is remanded. The issue of service connection for sinusitis is remanded. The issue of service connection for cough is remanded. The issue of entitlement to an initial increased rating in excess of 10 percent for lumbar strain is remanded. The issue of special monthly compensation (SMC) based on the need for regular aid and attendance is remanded. REASONS FOR REMAND The Veteran had active duty service from February 2001 to May 2001 and from May 2004 to November 2005, to include service in Southwest Asia. His military decorations included the Combat Infantryman’s Badge. These matters come before the Board of Veterans’ Appeals (Board) from May 2017 and January 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). While the service connection claims for TBI, a sleep disorder, memory loss, cognitive problem, headaches, mood swings, issues with concentration and decreased focus, hypothyroidism, multiple colds, sinusitis, and increased rating for lumbar strain were pending on appeal, the Veteran filed service connection claims for a cervical spine disability, a right and left shoulder disability; and a claim for special monthly compensation based on need for regular aid and attendance. These benefits were denied in the May 2017 and January 2018 rating decisions, in response to which the Veteran timely perfected an appeal. The issues have now been merged into a single appeal for the purposes of Board review. In March 2018, the Veteran filed a motion to advance on the docket due to financial hardship. Having reviewed the record, the Board finds insufficient cause has been shown. Advancement on the docket is warranted where a claimant is experiencing “severe financial hardship.” While the Board is sympathetic to the Veteran’s financial difficulties, the evidence submitted is not sufficient to demonstrate “severe financial hardship.” The motion to advance on the docket is denied. See 38 C.F.R. § 20.902. 1. The issue of service connection for a cervical spine disability is remanded. 2. The issue of service connection for a left shoulder disability is remanded. 3. The issue of service connection for a right shoulder disability is remanded. 4. The issue of service connection for a right knee disability is remanded. 5. The issue of service connection for a left knee disability is remanded. 6. The issue of service connection for TBI is remanded. 7. The issue of service connection for a sleep disorder is remanded. 8. The issue of service connection for memory loss is remanded. 9. The issue of service connection for cognitive problems is remanded. 10. The issue of service connection for headaches is remanded. 11. The issue of service connection for mood swings is remanded. 12. The issue of service connection for issues with concentration and decreased focus is remanded. 13. The issue of service connection for hypothyroidism is remanded. 14. The issue of service connection for multiple colds is remanded. 15. The issue of service connection for sinusitis is remanded. 16. The issue of service connection for cough is remanded. 17. The issue of entitlement to an initial increased rating in excess of 10 percent for lumbar strain is remanded. 18. The issue of entitlement to SMC based on the need for regular aid and attendance is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR CERVICAL SPINE, BILATERAL SHOULDER AND BILATERAL KNEE: A VA examination is necessary for further development. Service treatment records (STRs) reflect a decrease in strength, range of motion, endurance or sensation in the Veteran’s upper extremities to include his shoulders. These records also note the Veteran sustained a fall during basic training in 2001 that produced pain in his back, leg and both knees. The Veteran has also asserted these disabilities are a result of carrying at least 70 pounds of gear and ammo and wearing Kevlar, backpacking on long road marches, driving over rough roads in a Humvee and sustaining a motor vehicle accident after his Humvee was struck by an IED flipping the vehicle on its side during his service in Iraq. Additionally, the Veteran asserts that his knee disabilities are the result of his service-connected lumbar spine disability. As there are no VA examinations of record concerning the nature and etiology of these disabilities the Board finds a remand for a VA examination is required. TBI, SLEEP DISORDER, MEMORY LOSS, COGNITIVE PROBLEMS, HEADACHES, MOOD SWINGS AND CONCENTRATION/DECREASED FOCUS: In a March 2017 VA examination report, the examiner found that the Veteran did not have or has ever had a TBI or any residuals of a TBI. The examination report indicated that no diagnostic testing was performed on the Veteran prior to the examination. VA treatment records indicate the Veteran has received treatment for a TBI and the noted cause of this disability was related to the Veteran suffering a head injury after the Humvee he was riding in rolled over during his deployment in Iraq. Based on this evidence remand is required to obtain an adequate medical opinion. Additionally, as the Veteran’s memory loss, cognitive problems, headaches, mood swings and concentration and decreased focus issues may be related to his alleged TBI the issues are inextricably intertwined. HYPOTHYROIDISM, MULTIPLE COLDS, SINUSITIS AND COUGH: In a March 2017 VA medical opinion, the examiner noted that the Veteran’s hypothyroidism, multiple colds, sinus problems and cough were unrelated to any Gulf War exposures. The examiner did not provide any rationale for the opinion provided. STRs reflect the Veteran was exposed to several environmental and chemical agents during his service in Iraq. Thus, remand is required to obtain an adequate medical opinion. INCREASED RATING FOR LUMBAR STRAIN: The Veteran contends that his service-connected lumbar spine disability is worse than that which is contemplated by his current 10 percent rating. The Veteran’s last VA examination was conducted in March 2017. An updated examination should be conducted to ascertain the severity of the disability. SMC BASED ON THE NEED FOR REGULAR AID AND ATTENDANCE: Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to SMC based on the need of regular aid and attendance, the issues are inextricably intertwined. Additionally, remand is required to obtain a medical opinion as to the Veteran’s ability to care for himself. 2. Schedule the Veteran for a Gulf War VA examination for his claimed cervical spine, bilateral shoulder and knee, hypothyroidism, multiple colds, sinusitis, cough and residuals of TBI, to include a sleep disorder, memory loss, cognitive problems, headaches, mood swings, and concentration/decreased focus issues. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: (a.) Is the Veteran’s reported symptomatology attributable to a known clinical diagnosis or is his symptomatology a manifestation of an undiagnosed illness? (b.) If the VA examiner determines that the Veteran’s symptomatology is attributable to a known clinical diagnosis, then the VA examiner is asked to provide the following opinion: Is the Veteran’s symptomatology consistent with: (1) a diagnosable, but medically unexplained, chronic multi-symptom illness of unknown etiology, (2) a diagnosable, chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? (c.) If the VA examiner determines that the Veteran’s symptomatology is either a diagnosable, chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis then the VA examiner is asked to provide the following additional opinions: 1. Did the Veteran’s diagnosed disability have its onset during service or is it otherwise causally related to any event or circumstance of service? 2. Is the Veteran’s diagnosed disability related to a presumed environmental exposure experienced by the Veteran during service in Southwest Asia? 3. Is the Veteran’s diagnosed disability proximately due to or aggravated by a service-connected disability? 4. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner MUST review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner’s attention is drawn to the following: *In 2001, the Veteran sustained injury to his back, leg and knees after jumping down landing on his butt during basic training and pain persisted for 3 years. See VBMS entry dated February 8, 2016, titled “STR Medical,” page 35-37 of 97. *STRs notes the Veteran’s complaints of foot pain that was aggravated by marching. See VBMS entry dated February 8, 2016, titled “STR Medical,” page 54 of 97. *In June 2004, STRs note complaints of facial pressure, headaches and Veteran was diagnosed with sinusitis. See VBMS entry dated February 8, 2016, titled “STR Medical,” page 31 of 97. *In November 2004, the Veteran reported receiving a head injury with loss of consciousness a few years back during a motor vehicle accident wrecking while intoxicated. See VBMS entry dated May 23, 2019, titled “STR Medical,” page 29 of 38. *In August 2005, the Veteran reported having headaches, swollen, stiff or painful joints, chest pain or pressure, dizziness, fainting, light headedness, difficulty breathing and difficulty remembering. See VBMS entry dated February 8, 2016, titled “STR Medical,” page 85 of 97. *In September 2005, the Veteran noted on his post deployment health assessment that his health was worse and he suffered from a runny nose, headaches, swollen, stiff or painful joints, back pain, muscle aches, dizziness, fainting, light headedness, feeling tired after sleeping and difficulty remembering. See VBMS entry dated February 8, 2016, titled “STR Medical,” page 72 of 97. *The September 2005 post deployment assessment also notes the Veteran reports of being exposed to pesticide-treated uniforms, smoke from oil fire, burning trash and feces, vehicle or truck exhaust fumes, industrial pollution, sand and dust. See VBMS entry dated February 8, 2016, titled “STR Medical,” page 73 of 97. *In September 2005, the Veteran noted he suffered from several small ailments included swollen lymph nodes and headaches. The Veteran was diagnosed with lymphadenopathy in the neck with headaches which had its onset during his deployment to Iraq. See VBMS entry dated February 8, 2016, titled “STR Medical,” page 79-80 of 97. *In November 2005, it was noted the Veteran suffered from decrease in strength, range of motion, endurance or sensation in his upper extremities to include his shoulders. There was no back pain or stiffness or symptoms in the neck, knees or legs. See VBMS entry dated February 8, 2016, titled “STR Medical,” page 24 of 97. *In November 2017, VA treatment records note the Veteran was diagnosed with cervicalgia. See VBMS entry dated April 4, 2018, titled “Medical Treatment Record Government Facility,” page 6 of 9. *In December 2017, VA treatment records note the Veteran was treated for residuals of TBI and note the Veteran was involved in an accident while on deployment in Iraq where the Humvee he was in rolled over causing him to hit his head on the vehicle. He did not remember if he lost consciousness but reported he had severe headaches, neck, shoulder and low back pain as he was thrown out of the Humvee on impact. See VBMS entry dated April 3, 2018, titled “Medical Treatment Record Government Facility,” page 2 of 77. *VA treatment records from 2019 note the Veteran’s reports of shoulder, knee and neck pain. See VBMS entry dated February 26, 2020, titled “CAPRI,” pages, 24, 67 and 167 of 274. *The Veteran asserts that his cervical spine and bilateral shoulder disabilities are due to carrying at least 70 pounds of gear and ammo, wearing Kevlar, backpacking on long road marches, driving over rough terrain, and being involved in a Humvee accident where his Humvee was struck by an IED pushing the vehicle sideways on the road. *service connection is in effect for posttraumatic stress disorder, lumbar strain, tinnitus, and right ear hearing loss. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner should schedule additional examinations only if necessary, to provide an adequate opinion. 3. Schedule the Veteran for a VA examination, in accordance with established VA examination protocols, with an appropriate VA examiner regarding the current severity of the Veteran’s service-connected lumbar spine disability. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. 4. Schedule the Veteran for a VA examination to determine whether the Veteran requires aid and attendance as a result of his service-connected disabilities. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests considered necessary should be conducted and the results reported in detail. (a.) After review of the claims file and examination of the Veteran, the examiner should opine whether the Veteran’s service-connected disabilities render the Veteran helpless or so nearly helpless that he requires the regular aid and attendance of another person. (b.) The examiner should particularly address whether: 1. the Veteran’s service-connected disabilities render him unable to perform the following activities: dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, requires frequent adjustment of a special prosthetic or orthopedic appliance, or is otherwise unable to attend to the wants and needs of nature, including being incapable due to either physical or mental incapacity to protect himself against the hazards and dangers incident in his daily environment; or, 2. the Veteran is bedridden as a result of his service-connected disabilities. (c.) All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 5. After the above development, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, 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.