Citation Nr: 21012713 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-33 206 DATE: March 5, 2021 ORDER Entitlement to service connection for a low back disability, diagnosed as degenerative arthritis of the lumbar spine, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease, is remanded. Entitlement to service connection for chronic kidney disease, to include as secondary to service-connected coronary artery disease, is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to an effective date before May 17, 2011, for the award of service connection for bilateral hearing, is remanded. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the lumbar spine is aggravated beyond its normal progression by his service-connected right foot disability. 2. Symptoms of the currently diagnosed degenerative arthritis of the lumbar spine are indicated in-service and continuously since. 3. The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability, diagnosed as degenerative arthritis of the lumbar spine, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309, 3.310. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1965 to September 1967 with verified service in the Republic of Vietnam during the Vietnam Era. Among other awards and decorations, the Veteran is in receipt of the Purple Heart and the Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision. The Board previously remanded the claims on appeal in September 2018. Of note, the issues of entitlement to an effective date before August 30, 2012, for an increase to 30 percent disability for coronary artery disease; entitlement to an effective date before August 30, 2012, for the award of service connection for posttraumatic stress disorder (PTSD) with depression and anxiety; and entitlement to an effective date before May 17, 2011, for the award of service connection for bilateral hearing loss were remanded for issuance of a statement of the case (SOC). While the Agency of Original Jurisdiction (AOJ) issued an SOC in September 2019 that addressed the PTSD and coronary artery disease earlier effective date claims, an SOC that addressed the hearing loss claim was not issued. As explained below, this issue must be remanded again for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection can be established by sufficient evidence of a continuity of symptomatology between current disability and military service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as arthritis). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b), and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Low Back Disability The Veteran contends that his low back disability either had its onset during active duty service, or is secondary to his service-connected right foot disabilities, which are combat-related and include right foot muscle damage and neuralgia of the popliteal nerve. As an initial matter, the Veteran has been diagnosed with a low back disability, namely, degenerative arthritis of the lumbar spine. See, e.g., September 2011, June 2014, and February 2020 VA Examination Reports. With respect to secondary service connection, the remaining question for consideration here is whether the Veteran’s currently diagnosed low back disability is proximately due to or aggravated by the service-connected right foot disabilities. On this question, the record contains two private opinions from the Veteran’s treating chiropractor, R.R.S., D.C. In August 2011, R.S.S. stated that the Veteran had sustained severe injury to his right foot while serving in Vietnam and that he subsequently developed right short leg syndrome “that has now accelerated degenerative changes” to his lumbar spine. He explained that the Veteran had not received adequate treatment to protect him from permanent damage while serving on the front lines. He stated that he had been treating the Veteran for acute exacerbations of back pain since 2000. In August 2013, R.S.S. again described the in-service injury, stating that the fall affected his gait and spine (“His spine was torqued from the impact of the fall and has accelerated any age related degenerative changes that [are] occurring to his low back and hips.”). He stated the Veteran developed a right short leg syndrome and a pelvic tilt that accelerated degenerative changes to his lumbar spine. He opined, “There is no question that his present condition is directly related to his service-connected right foot injury.” When read as a whole, R.S.S. is clearly attributing the Veteran’s currently diagnosed lumbar spine arthritis to the service-connected right foot injury, especially to the extent that it accelerated or aggravated degenerative changes to his lumbar spine. The Board finds R.S.S.’s opinions to be highly probative as to the issue of secondary service connection as they are based on a review of the pertinent medical evidence, to include the Veteran’s in-service and post-service medical history, and supported by sound medical rationale. Notably, there are no probative medical opinions of record to the contrary. In this regard, the Board notes that several VA opinions have been obtained in this matter. The Board most recently remanded this issue in September 2018 to obtain an adequate opinion that specifically addressed secondary service connection. While the February 2020 VA examiner opined that the lumbar spine disability was not proximately due to the service-connect right foot disability, he did not provide an opinion as to whether the Veteran’s lumbar spine disability was aggravated by the right foot disability. For these reasons, the Board finds the February 2020 opinion to be of little probative value here. In short, the Veteran has been diagnosed with degenerative arthritis of the lumbar spine and the most probative evidence of record, namely, the August 2011 and August 2013 opinions from the Veteran’s chiropractor, unequivocally relates the lumbar spine condition to his service-connected right foot disability. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.310. In so finding, the Board also notes that the record arguably supports a grant of service connection for degenerative arthritis of the lumbar spine based on a showing of continuity of low back symptomatology since service. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1331. As noted, the Veteran sustained an injury when he fell onto a punji stick while under enemy fire in Vietnam. To the extent that the Veteran contends that he also injured his back at this time (and/or relates the onset of his back problems to this combat-related injury), the Board finds his statements to be both competent and credible. See also 38 U.S.C. § 1154(b). Post-service medical records reflect that the Veteran reported experiencing low back pain since service. See, e.g., September 2011 VA Examination Report (Veteran states that he has experienced back problems since 1968); February 2020 VA Examination Report (Veteran dates the onset of back problems to initial combat injury and states he was treated on and off by a chiropractor since 1968). The Veteran is competent to report on such matters and the Board has no reason to doubt the credibility of his statements regarding continuity as they have been consistently reported throughout the record. In light of the foregoing, and resolving reasonable doubt in his favor, the Board finds that the Veteran’s degenerative arthritis of the lumbar spine is both related to service by a showing of an initial onset of symptoms in service and continued symptomatology since separation. Service connection is, therefore, also warranted on a direct basis based upon in-service onset and continued symptomatology of a recognized chronic disease. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Entitlement to a TDIU The Veteran asserts that he is unable to maintain substantially gainful employment due to all of his service-connected disabilities, namely, PTSD, coronary artery disease, right foot muscle damage, neuralgia of the external popliteal nerve, tinnitus, hookworms, malaria, and bilateral hearing loss. See January 2021 VA Form 21-8940. Notably, the issue of entitlement to a TDIU was raised during the course of his appeal for higher ratings for PTSD, hearing loss, and coronary artery disease. These issues were adjudicated by the Board in its prior September 2018 decision and the TDIU claim remains within the Board’s jurisdiction. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. The crucial inquiry for the Board is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The fact that a Veteran is unemployed is not enough. It must be determined that the service-connected disabilities, without regard to his advancing age, make the Veteran incapable of performing the acts required by employment. As an initial matter, the Veteran has met the schedular percentage threshold for a TDIU throughout the appeal period, with PTSD rated at 70 percent and a combined 90 percent rating. 38 C.F.R. § 4.16(a). The remaining question for consideration here is whether the Veteran's service-connected disabilities preclude him from maintaining substantially gainful employment. The Veteran’s formal application for a TDIU reflects that he worked in sales and was last employed on a full time basis in September 2008. He has a high school education. A June 2014 VA examiner opined that the Veteran’s coronary artery disease would affect strenuous or sustained work, but allow for limited or sedentary work. In a January 2016 private medical opinion, Dr. H.H.G. opined that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. She stated that with his poor interpersonal skills and workplace trust issues, the Veteran would have an increase in paranoia and would struggle with appropriate work interaction. She also stated that the Veteran reported that he was not getting enough restful sleep (due to PTSD) and feeling fatigued nearly every day, which would be a safety issue in the workplace. It was further noted that his suicidal ideation would cause problems within the workplace through a manifestation of fatigue and lack of concentration. She stated that the Veteran struggled with depressed mood, hypervigilance, and disturbances of motivation and mood. Dr. H.H.G. stated that the Veteran’s “troubling PTSD symptoms are preventing him from maintaining substantially gainful employment.” The record also contains a February 2016 private vocational opinion from Dr. S.B., a vocational consultant (Rh.D). Dr. S.B. noted that the Veteran had a combination of physical and emotional conditions that interacted in terms of severity level and that the major areas of limitations appeared to be mental and physical activity in sustaining work “which is extremely limiting for this [Veteran].” Dr. S.B. further stated that the Veteran had a documented history of mental health symptomatology and cardiac impairment that would have an impact on occupational functioning. Dr. S.B. then opined that the Veteran was totally and permanently precluded from performing work at a substantially gainful level due to the severity of his service-connected PTSD, coronary artery disease, tinnitus, right foot muscle damage, right foot neuralgia, malaria, and bilateral hearing loss. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities cause the Veteran to be unable to secure or follow a substantially gainful occupation. Accordingly, the Board finds that the criteria for TDIU are met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND All Issues The Board’s prior remand included a directive to obtain VA treatment records dated from October 2000 to October 2011. It does not appear that the RO made any efforts to obtain these records. Remand is thus again required to associate these records with the claims file. 38 C.F.R. § 3.159(c)(2); Stegall v. West, 11 Vet. App. 268 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Hypertension and Chronic Kidney Disease The Board remanded these issues in September 2018 to obtain opinions regarding secondary causation and aggravation. The requested opinions, which were received in September 2019, with August 2020 addenda, are, unfortunately, inadequate. Another remand is, therefore, necessary. See Stegall, 11 Vet. App. 268; also see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). Specifically, with respect to the issue of causation, the VA examiner concluded, “I do not think that coronary artery disease causes hypertension,” and “I do not think coronary artery disease causes chronic kidney disease.” As to the issue of aggravation, the VA examiner stated that there is “no medically recognized knowledge that shows coronary artery disease aggravates” hypertension or chronic kidney disease. The examiner provided no other rationale regarding proximate causation or aggravation. In the August 2020 addendum opinions, the VA examiner again opined that the hypertension and kidney disease were less likely than not caused or aggravated by coronary artery disease based on his medical knowledge, education, study, and practice. The Board finds that the aforementioned opinions are inadequate to properly consider the issues since they are not supported by any rationale, particularly with respect to the issue of aggravation. The examiner did not adequately explain why the service-connected coronary artery disease could not have been the cause of or otherwise aggravated the Veteran's hypertension and/or chronic kidney disease. No medical literature was reviewed, identified, or discussed. The VA examiner's conclusions had minimal rationale, and were vague and conclusory with references to unspecific available information. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (finding the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision."). Therefore, additional medical comment is necessary before the Board can adjudicate these claims. Further, with respect to the hypertension claim, it has not been contended that hypertension was incurred during service, or that it is otherwise due to or aggravated by his in-service exposure to herbicides. However, it is undisputed that the Veteran served in Vietnam during the Vietnam Era and VA regulations provide a presumption of herbicidal agent exposure and a presumption that certain listed diseases in those so exposed shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service. This list of diseases, at 38 C.F.R. § 3.309(e), includes ischemic heart disease but does not include hypertension. Specifically, Note 2 to 38 C.F.R. § 3.309(e) provides that "[f]or the purposes of this section, the term ischemic heart disease does not include hypertension ." Nevertheless, notwithstanding the presumptive provisions, service connection for claimed residuals of exposure to herbicides may also be established by showing that a disorder resulting in disability is, in fact, causally linked to the exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir.). In this regard, the National Academy of Sciences had earlier issued a statement that there is only limited or suggestive evidence of a relationship between herbicide exposure and the development of hypertension. However, in 2018, the National Academy of Sciences changed the classification from limited or suggestive evidence of a relationship to "sufficient" evidence of an association. The duty to assist requires VA to provide a medical opinion when the evidence "indicates" that there "may" be a nexus between the in-service injury and current disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, a medical opinion should be obtained as to whether the National Academy of Sciences 2018 change of the classification from limited or suggestive evidence of a relationship to "sufficient" evidence of an association warrants finding that the Veteran's hypertension is due to his conceded inservice herbicide exposure. Right and Left Hip Disabilities The Board remanded these issues in September 2018, in part, to obtain opinions regarding secondary causation and aggravation. The requested opinions, which were received in October 2020, are, unfortunately, inadequate. Another remand is, therefore, necessary. See Stegall, 11 Vet. App. 268; also see Barr v. Nicholson, 21 Vet. App. 303. Specifically, the VA examiner opined that the Veteran’s right and left hip disabilities (diagnosed as strain and bursitis) were not proximately due to or the result of the Veteran’s service connected right foot disability. The examiner reasoned the following: “There is no evidence that the Veteran suffered from a chronic right hip strain from separation until 2011. While it is understood, the Veteran reports an injury to the hips secondary to a fall, there is no evidence of a right hip strain at separation or for greater than 35 years following separation.” Notably, this rationale pertains to direct, not secondary service connection. In Section VII of the October 2020 examination report, the examiner cited to medical literature, and concluded that the right and left hip strain were less likely than not “related” to the right foot injury. To the extent that the October 2020 examiner did not address whether the Veteran's service-connected right foot disabilities (both muscular and neurological in nature) aggravated his claimed right and left hip disabilities, the Board finds the opinion to be inadequate. An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Given that the medical evidence of record fails to adequately address the issue raised, the Board finds that a new medical opinion is necessary. Effective Date – Bilateral Hearing Loss As noted by the Board in its previous remand, the Veteran expressly disagreed with the effective date for the award of service connection for bilateral hearing loss in his September 2014 notice of disagreement. However, the August 2015 SOC only addressed the increased rating aspect of the disagreement, not the claim for an earlier effective date. As such, the Board remanded this matter to the AOJ for issuance of an SOC in September 2018. See Manlincon, 12 Vet. App. 238. The AOJ subsequently issued an SOC in September 2019, but again did not address the issue pertaining to Veteran’s disagreement with the effective date for the award of service connection for hearing loss. The issue must therefore be remanded again for the issuance of an SOC. See Stegall, 11 Vet. App. 268. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an effective date earlier than May 17, 2011, for the award of service connection for bilateral hearing loss. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. Obtain the Veteran’s VA treatment records for the period from October 2000 to October 2011. If any VA medical record prior to October 2011 are not available, this fact must be documented for the record. 3. Once the record is complete to the extent possible, obtain an addendum opinion from an appropriate clinician with respect to the claimed hypertension. No additional examination of the Veteran is necessary, unless the clinician determines otherwise. The clinician is requested to respond to the following: (i) Opine as to whether the National Academy of Sciences 2018 change of the classification from limited or suggestive evidence of a relationship to "sufficient" evidence of an association between herbicide exposure and the development of hypertension warrants finding that it is as likely as not that the Veteran's hypertension is due to his conceded in-service herbicide exposure. (ii) Opine, in light of the above, as to whether it is as likely as not that the Veteran's hypertension is aggravated (worsened beyond its natural progression) by his conceded in-service herbicide exposure. (iii) Opine as to whether it is as likely as not that the Veteran's hypertension is proximately due to or caused by service-connected coronary artery disease. (iv) Opine as to whether it is as likely as not that the Veteran's hypertension is aggravated (worsened beyond its natural progression) by his coronary artery disease. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 4. Once the record is complete to the extent possible, obtain an addendum opinion from an appropriate clinician with respect to the claimed chronic kidney disease. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The clinician is requested to respond to the following: (i) Opine as to whether it is as likely as not that the Veteran's chronic kidney disease is proximately due to or caused by service-connected coronary artery disease. (ii) Opine as to whether it is as likely as not that the Veteran's chronic kidney disease is aggravated (worsened beyond its natural progression) by his coronary artery disease. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 5. Once the record is complete to the extent possible, obtain an addendum opinion from an appropriate clinician with respect to the claimed bilateral hip disabilities. No additional examination of the Veteran is necessary, unless the clinician determines otherwise. The clinician is requested to respond to the following: (i) Opine as to whether the currently diagnosed right and/or left hip disability is at least as likely as not aggravated (worsened beyond its natural progression) by his service-connected right foot muscle and/or nerve disability. (ii) In rendering the opinion, the clinician should review the private chiropractor’s August 2013 opinion letter and address, as appropriate, the private practitioner’s findings. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 6. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.