Citation Nr: 21022398 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 20-19 276 DATE: April 15, 2021 REMANDED Entitlement to service connection for hypertension/blood pressure disability is remanded. Entitlement to service connection for a transient ischemic attack/stroke is remanded. Entitlement to service connection for coronary artery disease (CAD) is remanded. Entitlement to service connection for kidney disease, stage 3, to include edema is remanded. Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a psychiatric disability, to include depression, anger, and irritability is remanded. Entitlement to an initial rating in excess of 10 percent for herniated disc L5-S1 status post discectomy is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Preliminary Issues The Veteran had active military service from December 1964 to December 1967. In a May 2018 rating decision, the Agency of Original Jurisdiction (AOJ) adjudicated 37 issues. Service connection was established for six issues – right and left lower extremity radiculopathy, hearing loss, herniated disc L5-S1, tinnitus, and scar status post discectomy. All other claims for service connection (31 issues) were denied. In November 2018, the Veteran filed his Notice of Disagreement with all decisions made in the May 2018 rating decision including the ratings and effective dates assigned to the six issues in which service connection was established. In June 2019, the AOJ issued a Statement of the Case (SOC) with respect to the ratings assigned to the six issues in which service connection was established as well as the 31 issues that were denied. In December 2019, VA received a VA Form 9 in response to the June 2019 SOC which was signed by both the Veteran and his attorney. The VA Form 9 noted that the Veteran wanted to appeal all of the issues listed on the SOC. In addition, included with the VA Form 9 was a letter from the Veteran indicating that he never received a copy of the SOC and was notified by his attorney’s office that they had received their initial copy of the SOC in November 2019. A letter from the Veteran’s attorney in December 2019 noted that the June 2019 SOC was “found by our office on November 19, 2019 after checking the status of the claim in VBMS and a Form 9 filed on December 16, 2019.” An SOC identical to the one issued in June 2019, except that it was redated February 12, 2020, was mailed to both the Veteran and his attorney. In April 2020, VA received a VA Form 9 in response to the February 2020 Statement of the Case which was signed by the Veteran’s attorney. The VA Form 9 noted that the Veteran was only appealing nine issues; specifically, the issues of entitlement to higher ratings for herniated disc and right and left lower extremity radiculopathy as well as service connection for depression, anger, irritability, headaches, hypertension, kidney disease, sleep apnea, and TIA/stroke. The AOJ took this statement as a withdrawal of the remaining 28 issues as indicated in the electronic Veterans Appeals Control and Locator System (VACOLS). The Board finds that the April 2020 VA Form 9 was not sufficient to withdraw the 28 issues. See 38 C.F.R. § 20.204 (b) (2017) (stating that a withdrawal “must include...a statement that the appeal is withdrawn” and “[i]f the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal”). However, the Board finds that the VA Form 9 submitted in November 2019 was not timely. In order to perfect an appeal to the Board, a substantive appeal (VA Form 9 or equivalent statement) must be submitted within 60 days of the date of mailing of the SOC or the remainder of the one-year period from the date of mailing of notification of the determination being appealed, whichever period ends later. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). Thus, the 28 issues noted on the November 2019 VA Form 9 but not on April 2020 VA Form 9 were never perfected. As such, they are not on appeal. REASONS FOR REMAND 1. Entitlement to service connection for hypertension/blood pressure disability In support of his claim, the Veteran submitted a March 2020 medical opinion by Dr. Etherton in which he opines that it is as likely as not the chronic pain caused by his service-connected impairments significantly contributed to his hypertension which contributed to his cardiovascular conditions. Dr. Etherton cited to two studies. Prevalence of Clinical Hypertension in Patients With Chronic Pain Compared to Nonpain General Medical Patients. Clin Journ of Pain: Mar/Apr 2005:21(2):147-153. The study noted, “Results are consistent with the hypothesis that increased hypertension risk in the chronic pain population might be linked in part to chronic pain-related dysfunction in interacting cardiovascular-pain modulatory system.” Hypertension prevalence and diminished blood pressure-related hypoalgesia in individuals reporting chronic pain in a general population: The Tromso Study. Pain. Feb. 2013:154(2).257-262. 3 Cressman, M. and Gifford, R. Hypertension and Stroke. J Am Col] Cardiol. 1983.1(2):521-7. The report noted, “These results suggest that chronic pain may be associated with increased risk of hypertension.” The studies upon which Dr. Etherton’s opinion is based are speculative. Polovick v. Shinseki, 23 Vet. App. 48 (2009) (a medical opinion is speculative when it uses equivocal language such as “may well be,” “could,” or “might.”) Thus, the Board finds that a remand is warranted to obtain an additional opinion as to whether the Veteran’s hypertension is caused by or aggravated by service-connected disability. 2. Entitlement to service connection for a TIA/stroke 3. Entitlement to service connection for CAD 4. Entitlement to service connection for kidney disease, stage 3 The record indicates that these disorders may be related to the Veteran’s hypertension. As noted above, in his March 2020 medical opinion, Dr. Etherton opined that it was as likely as not that hypertension contributed to his cardiovascular conditions. Private medical records indicate that the Veteran had essential hypertension with complication renal disease. Because a decision on the hypertension issue could significantly impact a decision on the issues of TIA/stroke, CAD, and kidney disease, the issues are inextricably intertwined. In addition, if hypertension is found service connected, an opinion should be obtained that addresses whether the hypertension caused or aggravated these disorders. 5. Entitlement to service connection for a headache disability is remanded. The record indicates that the Veteran’s headaches may be related to a February 2017 stroke. Evidence dated in May 2017 indicates difficulty with communication and headaches. The provider noted that prior to the initial stroke, he had no symptoms at all. In June 2017, he was having headaches and memory problems. The Veteran’s headaches worsened, and in August 2017, he underwent a nerve block to the greater and lesser occipital nerves on the left. The Veteran’s headaches were noted to be tension related. In January 2018, the Veteran’s headaches were worse. Because a decision on the TIA/stroke issue could significantly impact a decision on the headache issue, the issues are inextricably intertwined. In addition, if stroke is found service connected, an opinion should be obtained that addresses whether the headaches are caused by or aggravated by his stroke. 6. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The record indicates that the Veteran’s OSA may be related to hypertension. In June 2015, the Veteran underwent a sleep study. The clinical history noted that the Veteran presented with a 19 inch neck, BMI of 36, history of hypertension and symptoms of nocturnal storing. Because a decision on the hypertension issue could significantly impact a decision on the OSA issue, the issues are inextricably intertwined. In addition, if hypertension is found service connected, an opinion should be obtained that addresses whether the hypertension caused or aggravates OSA. 7. Entitlement to service connection for a psychiatric disability, to include depression, anger, and irritability The record indicates that the Veteran’s psychiatric problems may be related to the February 2017 stroke. Evidence dated in in October 2017 indicates a deterioration of the Veteran’s mental health. A neurology consultation in June 2020 noted that the Veteran was on sertraline for anger, depression, and anxiety. Because a decision on the TIA/stroke issue could significantly impact a decision on the psychiatric issue, the issues are inextricably intertwined. In addition, if stroke is found service connected, an opinion should be obtained that addresses whether the psychiatric problems are caused by or aggravated by stroke. 8. Entitlement to an initial rating in excess of 10 percent for herniated disc L5-S1 status post discectomy is remanded. 9. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. 10. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. The Veteran contends that he is entitled to a higher rating for these disabilities. The Veteran underwent VA examination in April 2018; however, the examiner was unable to test the range of motion of the Veteran’s lumbar spine as he did not feel steady due to his stroke in February 2017 and was afraid of falling. Although the VA examiner noted that the Veteran reported flare-ups of thoracolumbar spine, the examiner did not provide an opinion as to the functional loss the Veteran experienced during such flare-ups. A July 2020 nephrology note indicated that the Veteran was not physically active, that he had difficulty walking, and that he was in a wheelchair. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the Board may accept a VA examiner’s assertion that he or she cannot offer such an opinion without resort to speculation only after it determines that the examiner’s conclusion is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. On remand the Veteran should be scheduled for another VA examination in order to provide the examiner an opportunity to obtain all “procurable medical evidence,” to include obtaining descriptions from the Veteran, before declining to offer an opinion as to severity of the Veteran’s condition due to his being unable to perform range of motion exercises or being confined to a wheelchair. 11. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities Finally, because a decision on any of the remanded issues above could impact a decision on the issue of a TDIU, the issues are inextricably intertwined. A remand of this issue is also required. The Board notes that Dr. Etherton also opined in March 2020 that the combination of the Veteran’s service-connected conditions, along with his cardiovascular issues, have prevented him from working full time since at least November 2016. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to address the nature and etiology of his hypertension, stroke, CAD, kidney disease, OSA, headaches, and psychiatric disorders. After a review of the record, the examiner is asked to provide a response to the following: (i) Is the Veteran’s hypertension at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected lumbar spine disability and right and left lower extremity radiculopathy? If and only if the answer to (i) is yes, (ii) Was the Veteran’s February 2017 stroke at least as likely as not proximately due to or aggravated beyond its natural progression by hypertension? (iii) Is the Veteran’s CAD at least as likely as not proximately due to or aggravated beyond its natural progression by hypertension? (iv) Is the Veteran’s kidney disease at least as likely as not proximately due to or aggravated beyond its natural progression by hypertension? (v) Is the Veteran’s OSA at least as likely as not proximately due to or aggravated beyond its natural progression by hypertension? If and only if the answer to (ii) is yes, (vi) Does the Veteran have a chronic headache disability that is at least as likely as not proximately due to or aggravated beyond its natural progression by his February 2017 stroke? (vii) Does the Veteran have a chronic psychiatric disability that is at least as likely as not proximately due to or aggravated beyond its natural progression by his February 2017 stroke? If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions for (vi) and (vii). 2. Afford the Veteran a VA examination with an appropriate clinician to determine the nature and severity of service-connected lumbar spine disability and right and left lower extremity radiculopathy. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares ups or repetitive use over time, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Specifically, the VA examiner should explain why the Veteran could not be assisted to an examination table for testing, to include whether it would be medically inadvisable, or why the examiner could not elicit descriptions of the Veteran’s range of motion of his thoracolumbar spine. (continued on the next page) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Olson, Patricia 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.