Citation Nr: 21022658 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 19-18 988 DATE: April 16, 2021 REMANDED Entitlement to service connection, to include on a secondary basis, for transient ischemic attack (TIA) is remanded. Entitlement to service connection, to include on a secondary basis, for chronic obstructive pulmonary disease (COPD), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1961 to July 1981. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by a Department of Veterans Affairs Regional Office (RO). This case was previously remanded in March 2020 to obtain VA examination reports. See March 2020 Board Decision. 1. TIA The Veteran asserts entitlement to service connection for TIA, to include as residuals of a stroke and his service-connected coronary artery disease (CAD) with coronary artery stent and NSTEMI, as well as secondary to his service-connected diabetes. See August 2015 Claim. The Veteran additionally asserts that his TIA was caused and/or aggravated by his service-connected hypertension. See November 2019 Medical Opinion Letter from Dr. Blevins and January 2020 Brief from the representative. Specifically, in the January 2020 Brief, the representative asserted that the Veteran suffered a cerebral vascular accident (CVA) in 2001, and a heart attack in 2003. In January 2020, the representative also submitted a November 2019 private medical opinion from Dr. Blevins. Dr. Blevins noted the Veteran was diagnosed with hypertension around the time of his discharge from service in 1981, and that in 2001, he suffered a CVA. The Veteran reported that after his CVA, he had to stop working due to significant problems with his speech, and that since that time he had been working for many years to improve his speech. Dr. Blevins opined that it was “as likely as not the Veteran’s hypertension contributed significantly to his CVA which resulted in difficulty with speech, weakness and poor stamina.” In support of this opinion, Dr. Blevins cited medical literature and stated that medical research had repeatedly shown that hypertension accelerated the fatty formation of plaques in the arteries and was a major risk factor in the development of stroke. In March 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA examination. The examiner was asked to discuss a November 2019 letter from Dr. Blevins and the Veteran’s lay statements. The requested VA examinations were obtained in October and December 2020. A review of the October 2020 VA central nervous system examination report shows the examiner noted a remote history for ischemic CVA which was currently asymptomatic based on the current physical examination. The examiner opined that it was “less likely than not (less than 50% probability)” that the Veteran’s TIA was proximately due to or the result of his service-connected CAD. In support of this opinion, the examiner noted that a November 1999 CT head/brain scan revealed findings consistent with a small vessel ischemic disease of uncertain age. Similar findings were also noted during a May 2003 CT head/brain scan. Accordingly, the examiner found that the initial findings were consistent with prior stroke pre-gait acute myocardial infarction with treatment. The examiner further opined that it was “less likely than not (less than 50% probability)” that the Veteran’s TIA was aggravated by his CAD. In support of this opinion, the examiner again noted the similar CT head/brain findings in 1999 and 2003. In a December 2020 addendum opinion, the examiner opined that it was “less likely than not (less than 50% probability)” that the Veteran’s TIA was caused or aggravated by his service-connected CAD. In support of this opinion, the examiner again noted a November 1999 CT head/brain scan which revealed a small vessel ischemic disease of uncertain age, and a May 2003 CT scan with similar findings. Accordingly, the examiner found that the initial 1999 CT findings were consistent with a prior stroke that predated the acute myocardial infarction in 2003. Therefore, as the TIA was shown to predate the onset of the service-connected CAD, there was insufficient evidence to support a causal relationship between the two conditions. Additionally, the examiner found no evidence of any additional signs or symptoms attributable to a worsening or aggravated TIA condition within 12 months of the 2003 myocardial infarction. Accordingly, the examiner found no clear connection between the reports of fatigue and stamina problems and the reported symptoms of problems with speech coordination. With regard to Dr. Blevin’s medical opinion, the examiner noted that while he did provide some support for persistent signs and symptoms related to CVA, no positive physical findings were noted that typically were seen due to a stroke. In this regard, the examiner noted that the Veteran’s speech was clear and articulate, and his gait abnormality was found related to his service-connected lumbar spine disability. Additionally, the examiner noted that Dr. Blevin’s medical opinion concerned the relationship between hypertension, high blood pressure and TIA, not CAD and TIA. However, as noted in above, the Veteran has asserted that his TIA was caused by his hypertension, elevated blood pressure, and diabetes, an assertion not addressed by the VA examination reports. The examiner additionally did not address the main point behind Dr. Blevin’s medical opinion; that the Veteran’s service-connected hypertension caused the stroke that was found to have predated the CVA, and which caused the Veteran’s TIA. Accordingly, in order to properly adjudicate this issue on appeal, a Remand is necessary to obtain a VA opinion that addresses these inquiries on appeal. 2. COPD In March 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA examination. The examiner was asked to provide medical opinions addressing direct as well as secondary service connection theories of entitlement. The requested VA examination reports were obtained in October 2020 (direct) and December 2020 (secondary). The examiner noted a diagnosis for COPD, primarily emphysematous, with February 2011 noted as the date of diagnosis. A physical examination revealed lungs clear to auscultation without wheezing or rales. Breath sounds were noted as moderately distant. The Veteran’s COPD was found under excellent control with current treatment. The examiner opined that it was “less likely than not (less than 50% probability)” that the Veteran’s COPD was etiologically related to service. In support of this opinion, the examiner noted no documentation in the medical record of “reading problems” during service or within one year of separation from service. Instead, the examiner noted that the Veteran separated from service in 1981, and that a February 2011 VA medical record noted COPD as a chronic problem. The examiner also noted that the Veteran quit smoking in 2003 at the time of his heart attack. In the December 2020 addendum opinion, the examiner opined that it was “less likely than not (less than 50% probability)” that the Veteran’s COPD was etiologically related to his service-connected CAD. In support of this opinion, the examiner noted that no studies had shown a direct correlation between CAD and COPD. Conversely, the examiner noted that there were multiple studies showing increased the incidence of COPD with tobacco use. In addition, the examiner opined that it was “less likely than not (less than 50% probability)” that the Veteran’s COPD was aggravated by his service-connected CAD. In support of this opinion, the examiner noted that no controlled studies had been accomplished showing how CAD aggravated COPD. In addition, the examiner noted the Veteran’s medical records which showed an improvement in PFT studies since February 2011. The examiner additionally noted an August 2016 VA medical record which stated that since the Veteran’s myocardial infraction and stent placement, he had never fully returned to baseline with chronic fatigue episodes of dizziness and mostly sedentary lifestyle. Accordingly, the examiner found that the August 2016 medical record placed the relationship of fatigue and stamina loss symptoms to his prior heart attack versus his COPD. The Board finds the VA examination reports inadequate. Apart from the typo noted above, it is apparent that the examiner did not fully review the Veteran’s medical records. In this regard, the examiner noted the date of diagnosis for the Veteran’s COPD as February 2011. More importantly, the examiner based his negative direct service connection nexus opinion, in part, on a finding that the Veteran’s chronic COPD began in February 2011. Additionally, with regard to aggravation, the examiner also based his negative medical opinion, in part, on a limited review of medical records dating from February 2011 to the present. Instead, the evidence of record shows continuous treatment for COPD since at least November 2003 (see medical history letters received March 2014 from Dr. Karim dating from November 2003 through January 2012). Moreover, a January 2011 VA medical noted a history of mild COPD per a pulmonary function test (PFT) conducted in 2000. However, the examiner did not mention, did not identify, and did not discuss any medical evidence prior to February 2011. Accordingly, the Board finds that the examiner’s negative nexus opinion is based, at least in part, on an inaccurate factual predicate and based on an inadequate review of the Veteran’s medical records. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). Accordingly, a Remand is necessary to obtain another VA opinion. 3. TDIU Lastly, the claim for a TDIU is inextricably intertwined with the remaining claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, obtain an addendum by an appropriate examiner to determine the nature and etiology of any stroke with transient ischemic attack (TIA) residual and/or cardiovascular accident (CVA). The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any stroke with TIA and/or CVA residual was caused by the Veteran’s service-connected diabetes, hypertension, and/or CAD with coronary artery stent and NSTEMI disability? Please explain why or why not. (b) Is it at least as likely as not (50 percent or greater probability) that any stroke with TIA and/or CVA residual was aggravated by the Veteran’s service-connected diabetes, hypertension, and/or CAD with coronary artery stent and NSTEMI disability? Please explain why or why not. If the examiner finds that the disability was aggravated by a service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner is asked to consider the November 2019 letter from Dr. Blevins who concluded that the Veteran’s hypertension contributed significantly to the development of his TIA resulting in speech difficulty, weakness and poor stamina, the January 2020 Brief from the representative, the January 2020 medical literature submission titled “Hypertension and Stroke,” and the Veteran’s lay statements as to the onset of his symptomatology. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. After the development in #1 is completed, obtain an addendum by an appropriate examiner to determine the nature and etiology of his COPD. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed COPD is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed COPD was caused by his service-connected CAD disability? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed COPD was aggravated by his service-connected CAD? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner is asked to consider VA and private medical records noting a 2000 PFT revealing COPD, and continuous treatment for COPD since at least November 2003. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. Then, the AOJ must readjudicate the remaining issues on appeal, to include the claim for TDIU. If the benefits sought remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.