Citation Nr: 21016221 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 19-32 630A DATE: March 22, 2021 REMANDED Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome (IVDS), status post anterior and posterior fusion, is remanded. Entitlement to an initial rating in excess of 10 percent for left knee strain is remanded. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure or as secondary to IVDS is remanded. Entitlement to an effective date earlier than October 19, 2015, for the grant of a total disability rating based on unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1959 to July 1963. At an October 2020 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Veteran was granted service connection for IVDS at 20 percent disabling, effective May 23, 2011. Service connection for the left knee strain was granted at 10 percent disabling, effective January 26, 2012. A 40 percent rating was subsequently granted for IVDS, effective October 13, 2017. The Veteran submitted a timely Notice of Disagreement (NOD) in April 2019, appealing the 40 percent rating for IVDS and initial 10 percent rating for left knee strain and later perfected his appeal in November 2019. Accordingly, the relevant appeal periods are from January 26, 2012, to the present for the left knee strain and from October 13, 2017, to the present for IVDS, to include whether there was a factually ascertainable increase in severity within the year preceding the IVDS increased rating claim. See 38 C.F.R. § 3.400(o)(2). Entitlement to TDIU was granted effective October 13, 2017, in an April 2018 rating decision. In a September 2019 rating decision, service connection for unspecified depressive disorder was granted, effective October 19, 2015. The Agency of Original Jurisdiction (AOJ) determined in a September 2019 rating decision that the Veteran was rendered unemployable by his psychiatric disability alone and granted an earlier effective date (October 19, 2015) for entitlement to TDIU based on that finding. The AOJ stated in the September 2019 rating decision that this represented a full grant of the claim. The Veteran has contended that TDIU is warranted as of his last employment (1982) or his earliest date of service-connected disability, May 23, 2011, and he perfected his appeal in November 2019. As such, the September 2019 earlier effective date grant did not provide a full grant of the appealed claim and the issue remains in appellate status. As a final matter before turning to the claims, the Board recognizes that the Veteran submitted a VA Form 10182 NOD in November 2019, attempting to opt into the modernized review system. However, the form did not contain election of an appropriate appellate lane. As such, he was informed in November 2019 that the form was not accepted as an election into the modernized system. Accordingly, the claims on appeal will be considered in the legacy system. 1. Entitlement to a rating in excess of 40 percent for IVDS, status post anterior and posterior fusion, is remanded. 2. Entitlement to an initial rating in excess of 10 percent for left knee strain is remanded. The Veteran’s service-connected IVDS and left knee strain were last evaluated at VA examinations in April 2018 and May 2018, respectively. At the October 2020 hearing, the Veteran indicated that both disabilities had worsened since the last examinations. As such, the Board finds that new examinations are needed to assess the current extent and severity of the disabilities. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA treatment records in the claims file date until October 2019. The Veteran has implied that he has had further treatment for his service-connected IVDS and left knee disability since that time, including a suggested knee replacement surgery. As such, any outstanding and relevant VA treatment records should also be added to the claims file. 3. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure or as secondary to IVDS, is remanded. The Veteran has contended that his currently-diagnosed hypertension is the result of service, including as due to herbicide agent exposure while serving aboard the USS Midway (CVA-41) near the Republic of Vietnam (Vietnam), or is secondary to service-connected IVDS, including as due to medications used to treat the disability. The Veteran specifically described transporting supplies in and around the waters of Vietnam. He stated that the ship anchored off the shore and supplies were delivered to Vietnam via Liberty boats. The AOJ attempted to determine whether the Veteran had verified service in Vietnam such that exposure to herbicide agents would be presumed. His military personnel records reflected that he was aboard the USS Midway from October 1959 to July 1963. In December 2015, the Joint Services Records Research Center (JSRRC) determined that there was no evidence that Navy ships transported tactical herbicide agents to Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicide agents. Additionally, the JSRRC could not document or verify that a shipboard veteran was exposed to tactical herbicide agents based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. The Defense Personnel Records Information Retrieval System (DPRIS) issued a finding in March 2016 that the command history and deck logs for the USS Midway did not reflect the ship being in Vietnamese waters in 1962. Veterans who “served in the Republic of Vietnam” during the period beginning on January 9, 1962, and ending on May 7, 1975, will be considered exposed to an herbicide agent, and that exposure in turn will be presumed to be the cause of certain enumerated diseases. 38 U.S.C. § 1116. During the appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), that the phrase “the Republic of Vietnam” included the 12-nautical mile territorial sea of Vietnam. As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. The Board notes that the DPRIS conclusion preceded and did not account for the recent determination in Procopio. Further, the DPRIS finding only considered the history of the USS Midway during 1962, whereas the Veteran’s personnel records reflected that he served aboard the ship until July 1963. Based on the foregoing, the Board finds that further clarification is needed as to whether or not the USS Midway transited the 12-nautical mile territorial sea of Vietnam during the January 1962 to July 1963 timeframe. The Board notes that service connection for hypertension is not available on a presumptive basis due to herbicide agent exposure. See 38 C.F.R. § 3.307, 3.309. Although VA has not conceded a presumptive relationship between hypertension and herbicide agent exposure, the National Academy of Sciences (NAS) has placed hypertension in a “sufficient evidence” category as of the 2018 Update. That is, although hypertension has not been added to the list of diseases presumptively associated with exposure to herbicide agents, the NAS has recognized “sufficient evidence” of an association between the two such that a correlation cannot be ruled out with reasonable confidence. The Federal Circuit has recently found that this NAS 2018 Update is in the constructive possession of the VA and, therefore, must be considered in the adjudication of appeals where it may be implicated. See Euzebio v. McDonough, No. 2020-1072, 2021 U.S. App. LEXIS 6188 (Fed. Cir. Mar. 3, 2021). As such, if there is sufficient evidence obtained upon remand to determine that the USS Midway was within the 12-nautical mile territorial sea of Vietnam or that the Veteran was otherwise exposed to herbicide agents during his active service, a VA opinion regarding the etiology of the Veteran’s hypertension which considers his contended exposure to herbicide agents is needed before a decision may be rendered on the claim. In addition, as service connection on a secondary basis has been contended due to a service-connected disability or the treatment therefor, an opinion based on a secondary theory of entitlement should also be obtained upon remand. 4. Entitlement to an effective date earlier than October 19, 2015, for the grant of a TDIU is remanded. The Veteran was initially granted a TDIU based on his IVDS and associated bilateral lower extremity radiculopathy. When service connection was later granted for unspecified depressive disorder, the AOJ determined that that disability alone rendered the Veteran unemployable. As such, the effective date of entitlement to TDIU was amended to the effective date of service connection for the psychiatric disability. Similarly, there are claims on appeal which may affect when the Veteran was rendered unemployable due to service-connected disabilities. The Veteran’s increased rating claim for left knee strain predates the award of TDIU (January 26, 2012). As such, the development requested regarding that claim may affect the effective date of the TDIU award. Additionally, the claim for service connection for hypertension also predates the award of TDIU (September 9, 2015). If service connection is granted for hypertension and it is shown to affect the Veteran’s employability, such information is relevant to the determination of the appropriate effective date for TDIU. As such, entitlement to an effective date earlier than October 19, 2015, for the grant of a TDIU is inextricably intertwined with the left knee strain increased rating claim and the hypertension service connection claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any relevant and outstanding records of VA medical treatment, specifically to include records since October 2019. 2. Contact the appropriate authority in order to obtain the command history and deck logs from January 1962 to July 1963 for the USS Midway (CVA-41), or other appropriate documents to establish whether the ship was within the 12-nautical mile territorial sea of the Republic of Vietnam. All attempts to obtain these documents should be included in the claims file. If any documents cannot be obtained, this should be noted in the claims file. 3. Thereafter, obtain a VA medical opinion from an appropriate medical professional to determine the nature and etiology of the Veteran’s currently-diagnosed hypertension. The record should be made available and the examiner’s review of the record should be indicated. The opinion should include discussion of the Veteran’s documented medical history and assertions. The need for an examination is left to the discretion of the clinician providing the opinion. The clinician is asked to determine whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran’s hypertension is the direct result of his military service. If the Veteran’s exposure to herbicide agents is presumed based on the above development, provide an opinion as to whether hypertension is as least as likely as not due to presumed exposure to herbicide agents. In so rendering the opinion, the clinician is reminded that the fact that hypertension is not on the presumptive list of conditions due to herbicide agent exposure cannot by itself be the sole basis for a negative nexus opinion. Rather, the clinician should consider the Veteran’s specific military history, medical history, risk factors, and any other circumstances deemed relevant by the clinician in rendering an opinion. Further, the clinician is also asked to consider “Update 2018” from the National Academy of Sciences that indicates “sufficient evidence” of an association between hypertension and herbicide agent exposure in rendering an opinion. See NAS 2018 Update. The clinician is also asked to determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension was caused or aggravated (i.e., worsened beyond natural progression) by his service-connected IVDS or the prescribed treatment therefor. In determining whether hypertension is aggravated by service-connected IVDS or the prescribed treatment therefor, discuss a baseline level of severity of the claimed condition 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. Provide a comprehensive rationale for all opinions with consideration given to all evidence of record, including the Veteran’s post-service medical history and lay statements. The clinician is specifically asked to discuss the effects of the medications prescribed to treat the Veteran’s service-connected IVDS. 4. Schedule the Veteran for a VA examination with an appropriate medical professional to ascertain the current severity and manifestations of his service-connected IVDS, status post anterior and posterior fusion. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The examination should record the results of range of motion testing for the spine on both active and passive motion and in weight-bearing and nonweight-bearing. If such testing cannot be performed, then the examiner should specifically indicate such and provide a medical reason why not. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The examiner is asked to consider the Veteran’s lay statements of record regarding the functional impact of his IVDS disability. 5. Schedule the Veteran for an examination with an appropriate medical professional to ascertain the current severity and manifestations of his service-connected left knee strain. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The examination should record the results of range of motion testing for the knees on both active and passive motion and in weight-bearing and nonweight-bearing. If such testing cannot be performed, then the examiner should specifically indicate such and provide a reason why not. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The examiner is asked to consider the Veteran’s lay statements of record regarding the functional impact of his left knee strain and to provide an opinion as to whether the disability rendered the Veteran unemployable. 6. Thereafter, and after any further development deemed necessary, the issue on appeal should be readjudicated with consideration of all evidence of record. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.