Citation Nr: 21012885 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-24 934 DATE: March 5, 2021 REMANDED Entitlement to service connection for diverticulosis of colon is REMANDED. Entitlement to service connection for internal hemorrhoids is REMANDED. Entitlement to service connection for hypothyroidism is REMANDED. Entitlement to service connection for anemia is REMANDED. Entitlement to service connection for pre-diabetes is REMANDED. Entitlement to service connection for hypertension is REMANDED. Entitlement to service connection for colon polyp(s) is REMANDED. Entitlement to service connection for gastroesophageal reflux disease (GERD) is REMANDED. Entitlement to service connection for benign prostatic hyperplasia (BPH) is REMANDED. Entitlement to service connection for hematuria is REMANDED. Entitlement to service connection for a hyperthyroid disability (with surgical removal of thyroid with scar) is REMANDED. Entitlement to service connection for left knee osteoarthritis is REMANDED. Entitlement to service connection for right shoulder osteoarthritis is REMANDED. Entitlement to service connection for lumbar spondylosis/arthritis is REMANDED. Entitlement to service connection for right lower extremity arthritis is REMANDED. Entitlement to service connection for congestive heart failure (CHF) is REMANDED. Entitlement to service connection for atherosclerosis of aorta is REMANDED. Entitlement to service connection for an atrial flutter is REMANDED. Entitlement to service connection for cardiomyopathy is REMANDED. Entitlement to service connection for mitral valve regurgitation is REMANDED. Entitlement to service connection for angina pectoris is REMANDED. Entitlement to service connection for an anticoagulation condition is REMANDED. Entitlement to service connection for eczema is REMANDED. Entitlement to service connection for postherpetic neuralgia is REMANDED. Entitlement to service connection for chronic pulmonary disease (COPD) with emphysema is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Army from March 1951 to March 1953. The certificate of release from active duty (DD214) reflects that the Veteran received the Korean Service and United Nations Service Medals. The Board notes that the Veterans’ Appeals Control and Locator System (VACOLS) continues to list active claims for service connection for bilateral hearing loss, tinnitus, traumatic brain injury (TBI), posttraumatic stress disorder (PTSD), and head scars. Upon further development, the agency of original jurisdiction (AOJ) subsequently granted the Veteran’s claims for these disabilities. Therefore, as these are full grants of benefits sought, the Veteran’s claims for service connection for bilateral hearing loss, tinnitus, TBI, PTSD, and head scars are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to service connection for diverticulosis of colon is remanded. 2. Entitlement to service connection for internal hemorrhoids is remanded. 3. Entitlement to service connection for hypothyroidism is remanded. 4. Entitlement to service connection for anemia is remanded. 5. Entitlement to service connection for pre-diabetes is remanded. 6. Entitlement to service connection for hypertension is remanded. 7. Entitlement to service connection for colon polyp(s) is remanded. 8. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. 9. Entitlement to service connection for benign prostatic hyperplasia is remanded. 10. Entitlement to service connection for hematuria is remanded. 11. Entitlement to service connection for a hyperthyroid disability (with surgical removal of thyroid with scar) is remanded. 12. Entitlement to service connection for left knee osteoarthritis is remanded. 13. Entitlement to service connection for right shoulder osteoarthritis is remanded. 14. Entitlement to service connection for lumbar spondylosis / arthritis is remanded. 15. Entitlement to service connection for right lower extremity arthritis is remanded. In March 2013, a VA Form 21-0820 was associated with the claims file. Thereby, the Veteran initiated claims for heart failure, high blood pressure, emphysema, arthritis, and a thyroid condition. In September 2014, the Veteran submitted a VA Form 21-526EZ. Thereby, the Veteran initiated claims for service connection for colon polyp(s), COPD, BPH, hyperlipidemia, GERD, diverticulitis, hematuria, prediabetes, arterial flutter, anemia, mitral valve regurgitation, cardiomyopathy, anticoagulation, postherpetic neuralgia, angina pectoris, internal hemorrhoid, atherosclerosis of aorta, right shoulder an left knee arthritis, and lumbar spondylosis. In October 2014, the Veteran submitted a VA Form 21-4142. Therein, the Veteran authorized Kaiser Permanente to release his treatment records to VA for “all dates” up to 2014. The Veteran identified two facilities where he received treatment from this provider. In December 2014, a response from the National Personnel Record Center (NPRC) was associated with the claims file. Therein, the NPRC relayed that the Veteran’s STRs were fire-related, and the complete service record could not be reconstructed. In July 2015 , VA contacted Kaiser Permanente. At that time, VA requested any of the Veteran’s treatment records, hospital summaries, findings and/or diagnoses that were generated after January 1, 2014. In July 2015, VA sent a second request to Kaiser Permanente for all of the Veteran’s treatment records generated after January 1, 2014. At that time, VA relayed that, “if the records are destroyed or otherwise unavailable, a negative response is required.” In July 2015, VA notified the Veteran that his military records may have been destroyed during a 1973 fire. At that time, the Veteran was notified of the documents that he could submit to substitute for any lost service treatment records. In March 2018, three pages of records from Kaiser Permanente were associated with the claims file. These records were generated in March 2018. In February 2020, the Veteran supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). In December 2020, VA notified the Veteran that it was not possible to produce a hearing transcript. The Veteran was notified that he had 30 days to request another Board hearing. After review of the claims file, the Board notes that the Veteran did not request another hearing. As noted above, the transcript for the Board hearing was lost. However, the undersigned VLJ’s notes for the Board hearing indicate that the Veteran reported treatment for frostbite in Korea. The Veteran reported that he traveled on the train to Pusan during service in Korea. The Veteran reported that it was cold in the Quonset huts used for housing. The Veteran reported that he endured arthritis after service. The Veteran reported that he fell off C-ration pallets in 1952. The Board observes that VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that NPRC has indicated that at least a portion of the Veteran’s STRs may have been destroyed by fire, which prevents identification of in-service diagnoses and/or treatment. However, Kaiser Permanente may have pertinent treatment records for the period after separation from the United States Army. These treatment records are pertinent to the continuity requirement for the Veteran’s claimed chronic disabilities under 38 C.F.R. § 3.309 (a), to include anemia, hypertension, atherosclerosis, and arthritis. On remand, the AOJ should attempt to secure all of the Veteran’s treatment records from Kaiser Permanente, to include those generated prior to January 2014. As noted above, the Veteran has authorized the release of his treatment records from Kaiser Permanente. The Board observes that VA’s duty to assist includes “obtaining sufficiently identified VA medical records or records of examination or treatment, regardless of their relevance.” Sullivan v. McDonald, 815 F.3d 786, 790-93 (Fed. Cir. 2016). To date, the AOJ has not attempted to acquire all the records the Veteran authorized for release. As such, remand is required to attempt to obtain these records and associate them with the claims file before a determination can be made regarding the Veteran’s outstanding service connection claims. 16. Entitlement to service connection for congestive heart failure is remanded. 17. Entitlement to service connection for atherosclerosis of aorta is remanded. 18. Entitlement to service connection for an atrial flutter is remanded. 19. Entitlement to service connection for cardiomyopathy is remanded. 20. Entitlement to service connection for mitral valve regurgitation is remanded. 21. Entitlement to service connection for angina pectoris is remanded. 22. Entitlement to service connection for an anticoagulation condition is remanded. As noted above, in March 2013 and September 2014, the Veteran initiated claims for service connection for multiple heart related disabilities. In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). (This standard of assessing aggravation of disability under 38 C.F.R. § 3.310 was established in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310)). In February 1954, the Veteran’s available service treatment records (STRs) were associated with the claims file. Therein, it was noted that the Veteran was diagnosed with Rubella in May 1951. In February 2021, the Veteran’s representative submitted an Appellant’s Brief. Thereby, the Veteran posited that the in-service Rubella diagnosis could have caused a viral heart infection. The Veteran’s representative observed that medical studies have indicated sleep impairment, which is a symptom of the Veteran’s PTSD disability, was shown to result in multiple cardiovascular conditions. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that, to date, the Veteran has not undergone a VA examination that addresses the nature and etiology of the claimed heart disabilities. On remand, the AOJ should secure a VA examination report that addresses direct and secondary service connection. 23. Entitlement to service connection for eczema is remanded. 24. Entitlement to service connection for postherpetic neuralgia is remanded. In February 1954, the Veteran’s available STRs were associated with the claims file. In May 1951, it was reported that the Veteran endured a macular rash on the face, chest, back, and extremities. In January 2018, the Veteran underwent a VA examination that addressed the nature and etiology of skin diseases. The VA examiner noted a diagnosis for eczema. The VA examiner opined that, “(t)he claimant reports eczematous rash all over his body followed by occasional flare ups, and currently the claimant has eczema on the back. Upon medical records review, there are no military service records regarding the claimed rash over the body. STR unknown date/1/1952 reports tinea cruris; tinea cruris is a fungal infection of the genital area, and it is not consistent with eczematous rash over the body, or current eczematous rash on the back. Military separation examination dated 3/24/1953 reports diagnosis of rubella, cured. Rubella can cause rash all over the body; however, rubella is usually resolved (cured) and it does not cause occasional break out or flare ups that the claimant reports. Without pertinent military or service treatment records, the current condition is less likely than not incurred in the military service.” The Board notes that the available STRs indicate that a military provider reported a rash on the Veteran’s face, chest, back and extremities in May 1951. As the January 2018 VA examiner’s negative opinion was based on the fact that there was no rash reported in the STRs, the Board finds that it was based on an inaccurate factual premise, which renders the opinion inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Accordingly, on remand, an addendum opinion regarding the etiology of the Veteran’s current eczema and postherpetic neuralgia should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 31 (2007). 25. Entitlement to service connection for chronic pulmonary disease (COPD) with emphysema is remanded. In January 2018, the Veteran underwent a VA examination that addressed the nature and etiology of respiratory conditions. The VA examiner noted a diagnosis for COPD with an emphysema subtype. The VA examiner opined that, “(t)he claimant has history of smoking. Upon medical records review, there are no military service records regarding the claimed shortness of breath. Military separation examination dated 3/24/1953 reports diagnosis of rubella, cured, otherwise normal examination. Without pertinent military or service treatment records, the current condition is less likely than not incurred in the military service.” In February 2021, the Veteran’s representative submitted an Appellant’s Brief. Therein, the Veteran relayed that he was discouraged from seeking medical care during active duty service. The Veteran’s representative observed that the July 2018 VA examiner did not opine that the smoking was the cause of the current COPD/emphysema. The Veteran relayed that smoking was a method of self-treatment (calming) for the service-connected PTSD disability. The Board finds that January 2018 VA examiner’s opinion is inadequate because it is based on the absence of service medical treatment records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). On remand, the AOJ should secure a VA examination report that addresses the Veteran’s lay statements on the etiology of any current COPD with emphysema. Consequently, the matters are REMANDED to the AOJ for the following action: 1. A specific effort must be made to obtain the Veteran’s records from Kaiser Permanente. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c) (2017). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. The Veteran should be scheduled for a VA examination with the appropriate examiner to determine the nature and etiology of any currently endured cardiovascular condition. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that any currently endured cardiovascular condition had its clinical onset during military service, or is otherwise related to the Veteran’s active duty service? The VA examiner must consider and address the any etiological relationship with the Veteran’s in-service diagnosis for Rubella b) Is it at least as likely as not (i.e. a 50 percent probability or greater) that any cardiovascular disorder currently endured by the Veteran was either (i) caused by or (ii) aggravated by the Veteran’s service-connected acquired psychiatric disability? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, No. 16-2157, 2019 U.S. App. Vet. Claims LEXIS 994 (June 14, 2019). If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran’s statements regarding the onset of his current cardiovascular disorders. 3. The AOJ should secure an addendum report from the January 2018 VA examiner. The examiner must address whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any currently endured current eczema and/or postherpetic neuralgia cardiovascular condition had its clinical onset during military service, or is otherwise related to the Veteran’s active duty service? The VA examiner must address the May 1951 STR notation for a macular rash on the face, chest, back, and extremities. 4. The Veteran should be scheduled for a VA examination to address the nature and etiology of any COPD with emphysema currently endured by the Veteran. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that any currently endured COPD with emphysema had its clinical onset during military service, or is otherwise related to the Veteran’s active duty service? b) Is it at least as likely as not (i.e. a 50 percent probability or greater) that any COPD with emphysema currently endured by the Veteran was either (i) caused by or (ii) aggravated by the Veteran’s service-connected acquired psychiatric disability? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, No. 16-2157, 2019 U.S. App. Vet. Claims LEXIS 994 (June 14, 2019). If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran’s statements regarding the onset of his current COPD with emphysema. 5. After completing any other development that may be warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be given a supplemental statement of the case (SSOC) and a reasonable opportunity to respond before the record is returned to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.