Citation Nr: 21012915 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-07 539 DATE: March 5, 2021 ORDER Entitlement to service connection for a major neurocognitive disorder (previously characterized as an acquired psychiatric disorder, to include PTSD), as secondary to service-connected hypertension, is granted. REMANDED Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected lumbar spine disability, is remanded. Entitlement to service connection for a neck disability, to include as secondary to a service-connected lumbar spine disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran has a major neurocognitive disorder due to vascular disease that has been shown to be secondary to his service-connected hypertension. CONCLUSION OF LAW The criteria for service connection for a major neurocognitive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.303(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1958 to January 1980. These matters come before the Board of Veterans’ Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2017 videoconference hearing. A transcript of this hearing is of record. Following that hearing, the Board remanded the issues above for further evidentiary development in March 2018 and again in March 2020. Also in the March 2020 decision, the Board adjudicated the issues of entitlement to increased ratings for bilateral hearing loss, a lumbar spine disability, and residuals of a right foot fracture. In November 2020, the Board remanded the issue of entitlement to service connection for a right wrist disability, pursuant to a March 2019 Joint Motion for Partial Remand. Thereafter, the RO granted service connection for a right wrist disability in a February 2021 rating decision. As such, that issue is no longer on appeal. 1. Entitlement to service connection for a major neurocognitive disorder, as secondary to service-connected hypertension Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Throughout the course of appeal, the Veteran has received numerous medical opinions debating the correct diagnoses and etiologies of his neurocognitive and mental health symptoms. In October 2019, a VA examiner determined the Veteran had a “long history of depression, PTSD, and anxiety,” as well as a neurocognitive disorder that was related to late-onset Alzheimer’s disease. In December 2020, a VA examiner confirmed a diagnosis of major neurocognitive disorder due to vascular disease (although the examiner found the Veteran did not meet the diagnostic criteria for PTSD). In any event, the record shows the current disability element of the Veteran’s service connection claim has been met. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); see also Holton, 557 F.3d at 1366. Turning to the question of nexus, the October 2019 VA examiner opined that the Veteran’s Alzheimer’s was unrelated to service but did not clarify whether any of the Veteran’s other mental health-related diagnoses were related to his service (the examiner did not opine as to theories of secondary service connection). The December 2020 VA examiner, on the other hand, determined the Veteran’s neurocognitive disorder was at least as likely as not proximately due to or the result of his service-connected hypertension. By way of rationale, the examiner explained that neuroimaging from 2011 and 2016 documented microvascular ischemic changes and related volume loss. Hypertensive disease was a known contributor to and risk factor for microvascular ischemic changes in the brain. Although the Veteran reportedly had a family history of Alzheimer’s disease, and it was possible that was contributing to his neurocognitive disorder, the basic pathological processes of vascular disease and Alzheimer’s were considered related. Moreover, the diseases could co-occur. Given the Veteran’s documented vascular pathology and the fact ischemic disease in the brain increases the risk of Alzheimer’s disease, the examiner opined the Veteran’s current disorder was at least as likely as not secondary to his service-connected hypertension. In sum, the weight of the evidence, particularly the well-reasoned and science- and fact-based December 2020 VA medical opinion of record, clearly supports the Veteran’s claim for service connection. Based on this evidence, the Board finds it at least as likely as not that the Veteran’s current major neurocognitive disorder is related to his service-connected hypertension. Although there is some negative evidence of record, the December 2020 VA opinion is highly probative, and is more than enough to substantiate the claim. See 38 C.F.R. § 3.310. Service connection for a major neurocognitive disorder will therefore be granted. REASONS FOR REMAND 2. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected lumbar spine disability, is remanded. The Veteran has put forth two theories of entitlement for his right ankle disability. First, he argues he injured his right ankle in service when a door fell on his right foot (service treatment records reflect he was treated for a fractured right foot following this injury). Notably in this regard, he testified at his Board hearing that he experienced continuous ankle pain since that injury. The Veteran also contends his right ankle disability was caused or aggravated by his service-connected lumbar spine disability. Of note, private treatment records reflect he was seen in 2013 for a right ankle fracture after a fall; one report following the injury notes the Veteran’s description that the fall occurred when his right leg “gave way.” The Veteran has been afforded three VA medical opinions regarding his right ankle disability. None of these opinions have adequately addressed the etiology of his disability. Most recently, a December 2020 opinion states the Veteran’s current right ankle fracture residuals are separate and distinct from his lumbar spine disability, and there was “no objective evidence” to indicate the right ankle disability was caused or aggravated by his lumbar spine disability. The examiner further found there was no “clinical evidence” to support a finding that the Veteran’s right ankle disability was incurred in service. A previous opinion, from October 2019, noted the Veteran’s right ankle fracture residuals were related to the 2013 post-service fracture, which was not related to service; the examiner acknowledged the Veteran “had a door injury” in 1960 and was put in a cast, but determined the current disability was less likely than not incurred in or caused by the claimed in-service injury. As the Board previously noted, no meaningful rationale was provided in support of those findings. The Board finds another examination and opinion is needed in order to fully account for the Veteran’s lay descriptions of his symptoms and the nature of his disability. The most recent VA opinion, from December 2020, relied on the lack of medical records to support its conclusion that the Veteran’s right ankle disability was not related to service. This is impermissible, especially given the Veteran’s reports of continuous right ankle symptoms since service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (holding that the mere absence of medical records does not contradict a veteran’s statements of symptom history). As to the secondary service connection theory, the Board finds the most recent opinion fails to address the Veteran’s reports, noted in the medical records, that the 2013 right ankle fracture occurred when his “gave way,” indicating at least a possibility of a causal connection to his lumbar spine disability. This possibility was not addressed by the examiner. Instead, the examiner merely stated, in conclusory fashion, that the Veteran’s lumbar spine and right ankle disability were separate and distinct conditions, without grappling with the Veteran’s contentions. For these reasons, regrettably, the Board finds a remand is once again warranted in this matter. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA providers a veteran with an examination or medical opinion, it must ensure the examination or opinion is adequate). 3. Entitlement to service connection for a neck disability, to include as secondary to a service-connected lumbar spine disability, is remanded. The Veteran contends he is entitled to service connection for a neck disability. Specifically, he argues he injured his neck during an in-service Jeep accident (in which he also injured his back). He also contends his neck was injured while building a bunker when a 500-pound door fell on him. The Veteran was most recently afforded a VA medical opinion regarding his neck disability in December 2020, pursuant to Board remand instructions directing the examiner to meaningfully address the Veteran’s lay contentions and warning the examiner that the “mere absence of medical records” could not alone form the basis for a negative nexus opinion. See Buchanan, supra. Notwithstanding, the December 2020 opinion, in finding against the Veteran, repeatedly based its conclusions on the fact there were “no medical records” suggesting either in-service incurrence of a neck disability or a link between the Veteran’s neck disability and his service-connected lumbar spine disability. The Board finds another examination and opinion is needed in order to comply with the Board’s remand instructions and fully account for the Veteran’s lay descriptions of his symptoms and the nature of his disability. In short, the December 2020 VA opinion makes the same mistake noted in the Board’s prior remand—namely, failing to adequately assess the Veteran’s lay contentions and relying on the lack of medical documentation. Unfortunately, a remand is once again warranted. 4. Entitlement to a TDIU is remanded. The Veteran asserts entitlement to a TDIU on account of his service-connected disabilities. The Board is hopeful the RO will grant TDIU (or, alternatively, a total schedular rating) following the Board’s grant of service connection for a major neurocognitive disorder, as the recent VA psychiatric examination report showed this disorder was productive of total social and occupational functioning. However, at this juncture, the Board is unable to award a TDIU. The issue will be remanded pending assignment of an initial rating for the Veteran’s major neurocognitive disorder. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s right ankle disability. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disability was incurred in or otherwise related to service, to include as due to the “door injury” described by the Veteran at his Board hearing. The examiner should specifically discuss the Veteran’s testimony regarding continuous right ankle pain since the in-service injury. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused or aggravated beyond its natural progression by the Veteran’s service-connected lumbar spine disability. The examiner should specifically discuss the 2013 private treatment notes pertaining to the Veteran’s post-service right ankle fracture, to include his report that the injury occurred when his right leg “gave way”; the examiner should opine whether this “giving way” was in any way due to the Veteran’s service-connected lumbar spine disability. (d) If it is determined that there is another likely etiology for the Veteran’s disability, that should be stated. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. 2. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran’s neck disability. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disability was incurred in or otherwise related to the Veteran’s service. Specifically address the Veteran’s reports of being injured in a Jeep accident and getting hit by a 500-pound door. Also address in-service treatment records of neck pain. The examiner should be aware that the lack of objective documentation of treatment for neck symptoms cannot alone be a basis for a negative nexus opinion. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disability was caused or aggravated beyond its natural progression by the Veteran’s service-connected lumbar spine disability. (d) If it is determined that there is another likely etiology for the Veteran’s disability, that should be stated. (e) The examiner must address the Veteran’s assertions of continuity of symptomatology since service, or otherwise reconcile lay assertions with the opinion rendered. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.