Citation Nr: 21020785 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-42 752A DATE: April 8, 2021 REMANDED Entitlement to service connection for Hepatitis B is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an effective date earlier than May 21, 2010 for the award of service connection for a lumbar spine condition is remanded. Entitlement to an effective date earlier than October 10, 2012 for the award of service connection for depressive disorder is remanded. Entitlement to an initial disability rating greater than 30 percent for depressive disorder prior to September 18, 2014 and 50 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 18, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1978 to December 1980. He appealed a September 2019 Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for Hepatitis B, entitlement to earlier effective dates for service connection for his depressive disorder and back disability, and denied a rating greater than 30 percent for depressive disorder prior to September 18, 2014, and 50 percent thereafter. In October 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated, in part, and remanded these issues from the September 2019 Board decision. The appeal is now back before the Board. Also, before the Board is entitlement to service connection for hypertension; an issue the Board remanded in September 2019 to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) for further development. Finally, the issue of entitlement to TDIU prior to September 18, 2014 is also before the Board. VA’s duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(c). Social Security Administration (SSA) records reflect the Veteran received treatment from Dr. A.T. at the Greenville Clinic for all of the aforementioned conditions since December 2012. Additionally, he reported receiving mental health treatment from psychologist G.M.. Where the record contains notice that a Veteran has private medical records, VA’s duty to assist extends to make reasonable efforts to obtain sufficiently identified, relevant private records. 38 C.F.R. § 3.159(c). The October 2020 JMPR noted this as a valid basis to remand all issues. As the AOJ did not attempt to obtain these records, a remand of all issues is required. Hepatitis B Under McLendon, the Veteran is entitled to a VA examination to address this alternate theory of entitlement. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when there is (1) competent evidence of a current disability, and (2) evidence that an injury occurred in service, and (3) an indication that the disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim). Here, the record reflects the Veteran has Hepatitis B. See August 2006 Red Cross records; see also September 2011 Dr. R.P. medical records. The Veteran contends that around June 1980 he found his “flight brother and roommate incoherent and in need of medical attention,” so he carried him to the Landstuhl Military Hospital for treatment. See October 2011 Veteran statement. The Veteran contends his roommate had Hepatitis and, consequently, the hospital “quarantined [the Veteran] for three days and gave [him] all kinds of shots.” Id. The Veteran contends either his roommate or the vaccinations, administered with jet injectors, infected him with Hepatitis B. Id.; see also September 2013 notice of disagreement (NOD), December 2017 VA Form 646. While the Veteran is competent to testify to facts he personally observed, such as helping his roommate and receiving vaccinations in service, he is not competent to offer opinions on complex medical matters, such as the etiology of his Hepatitis B. See Layno, 6 Vet. App. at 469. However, satisfying the third McLendon element requires only that the evidence ‘indicates’ that there ‘may’ be a nexus between the two and is a low threshold. See McLendon, 20 Vet. App. at 83. Thus, as the Veteran has not yet received a VA examination, a remand is required. Additionally, the Board finds the record appears incomplete. The Veteran stated he was treated for Hepatitis B at Landstuhl Military Hospital around April or June 1980. See September 2013 NOD. Military records reflect the Veteran served at nearby Ramstein Air Base in Germany during his service in 1980. Accordingly, on remand the AOJ should make reasonable efforts to obtain any relevant treatment records from Landstuhl Hospital in Germany from 1980. Hypertension The Veteran claims his high blood pressure began in service and progressed to his current diagnosis of hypertension. In January 2020, a VA examiner opined “the Veteran’s hypertension was less likely than not caused by his military service.” As rationale, the VA examiner noted the Veteran’s in-service treatment for high blood pressure was “labile hypertension” and “he did not meet the guidelines for the diagnosis of hypertension” in service, which is based on “more than two [blood pressure] readings obtained on more than two occasions.” See January 2020 VA examination report. As a reference for these guidelines, the VA examiner cited to a medical article published in the American College of Cardiology. Id. This article, however, also notes that Stage 1 hypertension occurs when the systolic number on a blood pressure reading is 130 to 139mm Hg or the diastolic number is 80 to 89mm Hg. In the Veteran’s case, service treatment records (STRs) reflect more than two blood pressure readings on more than two occasions that meet the criteria for Stage 1 hypertension. See, e.g., March 1979 STRs (130/90mm); February 1980 STRs (124/88mm); May 1980 STRs (120/92mm). For example, a seven-day blood pressure check revealed the Veteran met the criteria for Stage 1 hypertension on all six readings; furthermore, the Veteran met the criteria for Stage 2 hypertension on two readings provided on two separate days. See March 1980 STRs (112/92mm; 130/90mm). This in-service evidence supporting both Stage 1 and Stage 2 hypertension was not discussed by the VA examiner. Instead, he merely noted an in-service clinician diagnosed the Veteran with “labile hypertension” in February 1980 and, therefore, the Veteran’s current hypertension not related to his service. See January 2020 VA examination report. The Board also notes the VA examiner inaccurately stated the Veteran was diagnosed with “labile hypertension” in service; March 1980 STRs note the Veteran had “labile blood pressure.” For these reasons, the Board finds the January 2020 VA opinion inadequate. Additionally, the VA examiner did not consider relevant May 1980 STRs or the Veteran’s competent statements of record noting his “blood pressure had to be monitored during [his] whole career in the military” due to elevate blood pressure that continued from service to the present. See September 2013 NOD; October 2011 Veteran correspondence; May 1980 STRs (120/92mm). This lay and medical evidence should be addressed on remand. TDIU The AOJ granted TDIU from September 18, 2014; however, this is only part of the appeal period. When a veteran appeals for a higher disability rating and it is coupled with evidence of unemployability, the issue of entitlement to TDIU is raised for the entire appeal period. See Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). Therefore, as the issue of entitlement to TDIU has been raised and not granted in full, the period prior to September 18, 2014 is still on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). However, since the decision on the remanded issues discussed above impacts a decision on entitlement to TDIU, the issues are inextricably intertwined. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records, including, but not necessarily limited to, medical records from Dr. A.T. at the Greenville Clinic and Dr. G.M., a private psychologist. Ask the Veteran to complete a VA Form 21-4142 for these private records; then, make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. If any identified records are not obtainable, or none exist, the Veteran and his representative should be notified, and the record clearly documented. 2. Obtain medical records from Landstuhl Military Hospital, Germany from January 1980 to December 1980. If any identified records are not obtainable, or none exist, the Veteran and his representative should be notified, and the record clearly documented. 3. After the development of #1-2 above is complete, schedule the Veteran for an examination to determine the nature and etiology of the Veteran’s current Hepatitis B. The evidentiary record, including a copy of the October 2020 JMPR and this remand, must be made available to and reviewed by the examiner. The opinion should include a notation that this review took place. After a thorough review of the record, the examiner should answer the following: Is it at least as likely as not (a 50 percent probability or more) the Veteran’s Hepatitis B was incurred in or is otherwise related to his time in service, to include contracting Hepatitis B while helping his roommate (who was allegedly diagnosed with Hepatatis B) and, alternatively, receiving inoculations from air jet injectors? The examiner is directed to the Veteran’s contentions in his September 2013 notice of disagreement and October 2011 Veteran correspondence. The examiner is further directed to discuss the CDC information provided in the December 2017 VA 646, including that the military “discontinued use of jet injectors in the 1990s because it spread blood borne illnesses.” The examiner should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles should be considered. 4. After the development of #1-2 above is complete, obtain an opinion from a qualified reviewing clinician to determine the nature and etiology of the Veteran’s hypertension. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following: Is it at least as likely as not (a 50 percent probability or more) the Veteran’s hypertension, was incurred in or is otherwise related to his time in service, to include his numerous elevated in-service blood pressure readings? The reviewing clinician is directed to address the following in-service blood pressure readings and notations: (a.) February 1979 STRs (120/80mm); (b.) February 1979 STRs (112/92mm, 120/84mm); (c.) March 1979 STRs (120/84mm, 110/82mm, 130/90mm, noting labile blood pressure and restricting the Veteran’s sodium intake), (d.) February 1980 STRs (124/88mm); and, (e.) May 1980 STRs (120/92mm, examination where the Veteran notes he “sometimes” has high blood pressure). The reviewing clinician is directed to the Veteran’s competent lay statements of record, to include the September 2013 NOD statement that his “blood pressure had to be monitored during [his] whole career in the military” and his high blood pressure continued until his current diagnosis of hypertension. The reviewing clinician should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.