Citation Nr: 21014867 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 11-31 513 DATE: March 16, 2021 REMANDED Entitlement to service connection for a bilateral hip disorder is remanded. Entitlement to service connection for hypertensive vascular disease is remanded. Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for a brain disorder, to include seizures, concussions, and a traumatic brain injury (TBI), is remanded. Entitlement to an initial rating in excess of 10 percent for left knee strain, to include entitlement to a separate rating for instability, is remanded. Entitlement to an initial rating in excess of 10 percent for right knee injury with limitation of extension, to include entitlement to a separate rating for instability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from April 1968 to April 1971. His decorations included a Purple Heart and Vietnam Service Medal. The Veteran died in July 2019 and the Appellant is his surviving spouse. The Appellant was substituted in August 2020. In August 2018, the Board denied increased ratings for the knees and denied service connection for the bilateral hips, respiratory disorder, hypertensive vascular disease, sleep apnea, and a brain disorder. The Veteran appealed the issues to the United States Court of Appeals for Veterans Claims (Court), and in September 2019, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the issues. In October 2020, the Court granted the Appellant’s substitution motion. The Board notes that the Appellant also has on appeal an issue of entitlement to service connection for sleep apnea. The Board remanded the issue in August 2018, and the issue has not been recertified to the Board. This issue is therefore not presently before the Board. 1. Entitlement to service connection for a bilateral hip disorder is remanded. 2. Entitlement to service connection for hypertensive vascular disease is remanded. In the August 2018 Board decision, the claims for service connection for a bilateral hip disorder and hypertensive vascular disease were denied on the basis that although the Veteran had current diagnoses of bilateral hip degenerative joint disease (DJD) and hypertensive vascular disease, there was no evidence of relationship between the diagnoses and the Veteran’s military service. The Board relied, in part, on an October 2009 VA examination of the hips and a March 2010 VA examination for heart conditions. The JMPR indicated that the two VA examinations were inadequate for adjudication purposes. The hip examiner did not discuss whether the Veteran’s bilateral hip condition was aggravated by his service-connected knee disabilities and the heart conditions examiner was not asked to opine on a relationship between the hypertensive vascular disease and the Veteran’s conceded Agent Orange exposure. Moreover, the Board failed to address an April 2010 lay statement from the Veteran that he had high blood pressure in service and was put on medication immediately after his return from Vietnam. As such, pursuant to the JMPR, remand is necessary to obtain medical opinions on the issues of service connection. See McLendon v. Nicholson, 20 Vet. App. 29 (2006); Allday v. Brown, 7 Vet. App. 517 (1995). 3. Entitlement to service connection for a respiratory disorder is remanded. In the August 2018 Board decision, the claim for service connection for a respiratory disorder was denied on the basis that although the Veteran had a diagnosis of chronic obstructive respiratory disorder (COPD), there was no evidence of relationship between the diagnosis and his military service. The JMPR indicated that the Board erred in failing to address a November 2011 statement by the Veteran that he had breathing problems, shortness of breath, and emphysema since the early 1970s. The Board also erred in relying on its own medical judgment when citing the Veteran’s 30-year history of tobacco use as a reason for denying service connection for a respiratory disorder. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Furthermore, the Board did not adequately address whether a VA medical opinion on the etiology of the Veteran’s respiratory disorder was warranted. As such, pursuant to the JMPR, remand is necessary to obtain a medical opinion on the issue of service connection. See McLendon v. Nicholson, 20 Vet. App. 29 (2006); Allday v. Brown, 7 Vet. App. 517 (1995). 4. Entitlement to service connection for a brain disorder is remanded. In the August 2018 Board decision, the claim for service connection for a brain disorder was denied on the basis that the Veteran did not have a relevant diagnosis at any time during the pendency of appeal. See Brammer v. Derwinski, 3 Vet. Appl. 223 (1992). The JMPR indicated that the Board erred in failing to address a November 2011 statement by the Veteran that he had residual symptoms of a TBI, including memory loss and a “a lot of trouble reading.” Furthermore, the Board did not adequately address whether a VA medical opinion on the etiology of any diagnosed brain disorder was warranted. As such, pursuant to the JMPR, remand is necessary to obtain a medical opinion on the issue of service connection. See McLendon v. Nicholson, 20 Vet. App. 29 (2006); Allday v. Brown, 7 Vet. App. 517 (1995). 5. Entitlement to an increased rating for the left knee strain is remanded. 6. Entitlement to an increased rating for the right knee injury is remanded. In the August 2018 Board decision, a rating in excess of 10 percent for the left knee disability was denied under Diagnostic Code 5260, for limitation of flexion; and a rating in excess of 10 percent for the right knee injury was denied under Diagnostic Code 5261, for limitation of extension. The JMPR indicated that the board erred by not addressing whether a separate rating for lateral instability was warranted under Diagnostic Code 5257. Specifically, a December 2008 VA examiner noted symptoms of right knee instability and a history of bilateral “giving way.” The Board notes that subsequent VA examinations conducted in October 2009 and March 2011, which included range of motion measurements for the knees, are silent for mention of any findings of instability. The Board also notes that the Veteran’s most recent VA examination of the knees was in March 2011. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. That final sentence of 38 C.F.R. § 4.59 directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The 2011 VA examination was conducted prior to Correia, and thus did not include necessary findings. As noted above, the Veteran died in July 2019 and cannot be scheduled for another examination to comply with the requirements of Correia. However, remand is necessary to determine whether it is possible to provide retrospective medical opinions for the December 2008, October 2009, and March 2011 VA examinations. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The matters are REMANDED for the following action: 1. Send the Veteran’s claims file to a VA clinician with appropriate expertise to determine the nature and likely etiology of the bilateral hip condition. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner. All relevant hip diagnoses should be noted. For each diagnosis, the examiner should provide a medical opinion on whether it is at least as likely as not that the hip diagnosis is proximately due to the service-connected bilateral knee disability. If not, did the hip diagnosis increase in severity beyond its natural progression by the service-connected bilateral knee disability? A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 2. Send the Veteran’s claims file to a VA clinician with appropriate expertise to determine the nature and likely etiology of the hypertensive vascular disease. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner. The examiner should provide a medical opinion on whether it is at least as likely as not (a 50 percent or greater probability) that the hypertensive vascular disease was related to incident, injury, or event in active service, to include being caused or aggravated by in-service herbicide exposure. The examiner should note that it is inadequate to conclude that that the hypertensive vascular disease was not related to service simply because it is not on VA’s list of presumptive diseases associated with exposure to herbicides. The examiner should specifically consider and discuss the Veteran’s April 2010 statement indicating that he had high blood pressure in service and was put on medication immediately after his return from Vietnam, and the medical treatment records submitted with the statement. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. Send the Veteran’s claims file to a VA clinician with appropriate expertise to determine the nature and likely etiology of any diagnosed respiratory condition, to include COPD. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner. All relevant diagnoses should be noted. For each diagnosis, the examiner should provide a medical opinion on whether it is at least as likely as not (a 50 percent or greater probability) that the diagnosis was related to incident, injury, or event in active service, to include being caused or aggravated by in-service herbicide exposure. The examiner should note that it is inadequate to conclude that that the respiratory disorder was not related to service simply because it is not on VA’s list of presumptive diseases associated with exposure to herbicides. The examiner should specifically consider and discuss the Veteran’s November 2011 statement (on a VA Form 9) that he had breathing problems, shortness of breath, and emphysema since the early 1970s. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 4. Send the Veteran’s claims file to a VA clinician with appropriate expertise to determine the nature and likely etiology of any diagnosed brain disorders. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner. All relevant brain diagnoses should be noted. For each diagnosis, the examiner should provide a medical opinion on whether it is as likely as not (50 percent or greater probability) that the diagnosis is related to incident, injury, or event in active service. The examiner should specifically consider and discuss the Veteran’s November 2011 statement (on a VA Form 9) that he had residual symptoms of a TBI, including memory loss and a “a lot of trouble reading.” A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 5. Send the Veteran’s claims file to a VA clinician with appropriate expertise to determine the nature and severity of the service-connected bilateral knee disabilities. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner. The examiner should opine on whether the Veteran had instability in the left and/or right knee, to include discussion of the December 2008 VA knees examination report. The VA examiner should also comment on whether ROM measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for the period on appeal. If the examiner is unable to provide a retrospective opinion as to these specific ROM findings, he or she should clearly explain so in the report. (Continued on the next page)   A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.