Citation Nr: 21023206 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-34 342 DATE: April 20, 2021 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to an initial compensable evaluation for a scar associated with coronary artery disease (CAD) status-post coronary artery bypass graft (CABG) is remanded. Entitlement to an evaluation in excess of 10 percent prior to January 4, 2021 for CAD status-post CABG is remanded. Entitlement to an evaluation in excess of 60 percent on or after January 4, 2021 for CAD status-post CABG is remanded. Entitlement to a compensable evaluation for posttraumatic stress disorder (PTSD) prior to September 6, 2016 is remanded. Entitlement to an evaluation in excess of 60 percent for PTSD on or after September 6, 2016 is remanded. Entitlement to an initial evaluation in excess of 10 percent for right foot Morton’s neuroma with metatarsalgia is remanded. Entitlement to an evaluation in excess of 20 percent for left foot degenerative joint disease, residuals of fracture, os calcis, is remanded. Entitlement to a compensable evaluation for bilateral hearing loss prior to July 18, 2019 is remanded. Entitlement to an evaluation in excess of 30 percent for bilateral hearing loss on or after July 18, 2019 is remanded. Entitlement to an evaluation in excess of 20 percent for residuals of a lumbar fracture is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from January 1953 to June 1981. His awards and decorations include the Combat Action Ribbon and the Purple Heart with Oak Cluster. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2014, January 2015, and February 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board, in relevant part, remanded issues of entitlement to service connection for hypertension; whether new and material evidence had been received to reopen claims for service connection for sleep difficulties and a cervical spine disorder; and entitlement to increased evaluations for service-connected lumbar spine, foot, and bilateral hearing loss disabilities for further development. The Board also deferred adjudication of the issues of entitlement to a TDIU and increased evaluations for the service-connected CAD, a surgical scar related to CAD, PTSD, and right foot Morton’s neuroma pending the resolution of earlier effective date issues for those disabilities. The Board remanded the issues of entitlement to earlier effective dates for the grant of service connection for PTSD, CAD, a surgical scar associated with CAD, and right foot Morton’s neuroma for the issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). The RO issued an SOC in September 2019, and the Veteran perfected his appeal. In January 2020, the Board denied entitlement to earlier effective dates for the grant of service connection for PTSD, CAD, a surgical scar related to CAD, and right foot Morton’s neuroma. Therefore, those issues are no longer in appellate status, and no further consideration is necessary. In an August 2020 rating decision, the RO increased the evaluation assigned for the service-connected bilateral hearing loss to 30 percent effective from July 18, 2019. In a February 2021 rating decision, the RO also increased the evaluation assigned for the service-connected CAD to 60 percent effective from January 4, 2021. Nevertheless, the issues remain in appellate status, as the maximum schedular ratings have not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). Of note, the Veteran is in receipt of the combined maximum evaluation from August 27, 2019. Thus, any subsequent awards of service connection or higher ratings will bear no impact on his compensation payments. 1. Entitlement to service connection for hypertension In an August 2019 VA medical opinion, the examiner opined that the Veteran’s hypertension did not have its onset in service, did not manifest within one year of his discharge from service, and was not otherwise medically related to service. In so finding, the examiner stated that the Veteran did not have abnormal blood pressure readings during service. However, the Veteran’s service treatment records document findings of elevated blood pressure. See, e.g., April 1977 and June 1979 service treatment records. A June 1969 health record also noted an assessment of borderline hypertension. As such, the opinion is based, in part, on an inaccurate and incomplete factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding that a medical opinion based upon an inaccurate factual premise has no probative value). Therefore, a remand is necessary to obtain an additional medical opinion. Stegall v. West, 11 Vet. App. 268 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to service connection for a cervical spine disorder In a January 2006 rating decision, the RO denied service connection for a cervical spine disorder, finding that the condition neither occurred in nor was caused by service. The RO also found that the Veteran’s service treatment records did not show any treatment or a diagnosis of a cervical spine disorder. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within one year of notification of the decision. In a January 2015 rating decision, the RO determined that new and material evidence had not been received to reopen a claim for service connection for a cervical spine disorder. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). The regulations identify service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). “Relevant” means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 1343 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. Following the January 2006 rating decision, additional service treatment and personnel records were associated with the claims file. These records include clinical records that provide additional information regarding the injuries that the Veteran sustained during service when his truck hit a land mine. In addition, a June 1969 clinical record noted that a physical examination of the Veteran revealed tenderness of the right paravertebral muscles. The Board also notes that the service treatment records were in existence and not previously associated with the claims file at the time of the January 2006 rating decision. Moreover, the service records speak to the basis of the prior denial. Therefore, 38 C.F.R. § 3.156(c) applies, and the claim for service connection for a cervical spine disorder will be reconsidered on the merits. The Veteran’s post-service medical records include a June 1985 VA radiology report that noted an impression of degenerative arthritis at C6-C7. In an August 2010 VA primary care record, the Veteran reported having chronic dull neck pain and a history of a combat injury from a mine explosion during his service in the Republic of Vietnam. As discussed above, the Veteran’s service treatment records also document complaints of paravertebral tenderness. Therefore, the Board finds that a VA examination is necessary to ascertain the nature and etiology of any current cervical spine disorders. See McClendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (describing the circumstances under which VA’s duty to provide a medical examination are triggered). 3. Entitlement to service connection for a sleep disorder In a February 2014 rating decision, the RO denied service connection for a disorder characterized by difficulty falling or staying asleep. In so finding, the RO stated that the evidence did not show a current diagnosed disability or an in-service event, disease, or injury. The Veteran was notified of the decision in a February 25, 2014 letter. In a January 2015 rating decision, the RO determined that new and material evidence had not been received to reopen a claim for service connection for a disorder characterized by difficulty falling or staying asleep. Prior to expiration of the appeal period for the February 2014 rating decision, a VA psychiatric examination was associated with the claims file in February 2015. See VA notification letter dated February 25, 2014. In the February 2015 VA examination report, the examiner diagnosed the Veteran with PTSD and indicated that his symptoms included sleep disturbances and chronic sleep impairment. Accordingly, the Board finds that the February 2014 rating decision did not become final because new and material evidence was received within one year of issuance of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the Veteran’s claim for service connection for a sleep disorder stems from the February 2014 rating decision. In addition, following the February 2014 and January 2015 rating decisions, the AOJ obtained additional service treatment records in October 2019. These records include June 1969 clinical records that show the Veteran was prescribed medication for sleep while he was hospitalized for injuries that he sustained when his truck hit a land mine. The Board also notes that the service treatment records were in existence and not previously associated with the claims file at the time of the prior rating decisions. Moreover, the service records speak to the basis of the prior denials. Therefore, 38 C.F.R. § 3.156(c) applies, and the claim for service connection for a sleep disorder will be reconsidered on the merits. However, as discussed below, a remand is necessary to obtain outstanding private and VA medical records. 4. Entitlement to increased evaluations for bilateral hearing loss The Veteran was most recently afforded a VA examination in connection with his service-connected bilateral hearing loss in July 2019. However, a February 2020 VA audiology record indicated that the Veteran was being re-evaluated due to a possible decrease in his hearing. Although the Veteran speech discrimination score for his right ear was recorded as 48 percent, the audiology testing was performed using the Northwestern University Auditory Test No. 6 (NU-6) recorded word list which is not adequate for rating purposes. See 38 C.F.R. § 4.85(a) (requiring examinations to use a Maryland CNC word list to be adequate for rating purposes). Nevertheless, given that the evidence documents a possible worsening of the Veteran’s bilateral hearing loss, the Board finds that a VA examination is needed to ascertain the current severity and manifestations of his disability. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, the Veteran’s VA audiology records reference audiogram reports located in the Computerized Patient Record System (CPRS) that are not currently associated with the claims file. See, e.g., February 2020 VA audiology record. Therefore, on remand, the Agency of Original Jurisdiction (AOJ) should obtain any outstanding VA audiology records. 5. Entitlement to an increased initial evaluation for right foot Morton’s neuroma with metatarsalgia 6. Entitlement to an increased evaluation for left foot degenerative joint disease, residuals of fracture, os calcis The Veteran was afforded a VA foot examination in July 2019. The examiner stated that the Veteran’s experienced left foot pain on examination that contributed to functional loss. He also stated that there was functional loss due to left foot pain during flare-ups and/or when the joint was used repeatedly over a period of time. However, the examiner did not conduct range of motion testing for each foot or otherwise explain why such testing was not necessary, as directed by the Board in April 2018. In addition, the examiner stated that the Veteran’s left foot hallux valgus and right foot degenerative arthritis were incidental findings on examination and were not related to his service-connected right and left foot disabilities. However, the examiner provided no supporting rationale for his conclusion. A medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In particular, the examiner did not address the relevance, if any, of a January 2015 VA left foot x-ray report that noted an impression of degenerative changes of the first metatarsophalangeal (MTP) joint associated with compensatory hallux valgus. In light of the above, and although the Board sincerely regrets the delay, a remand is necessary to afford the Veteran an additional VA examination. Stegall v. West, 11 Vet. App. 268 (1998); see also Barr, 21 Vet. App. at 311. 1. – 14. Entitlement to service connection for hypertension, a cervical spine disorder, and a sleep disorder; entitlement to increased evaluations for CAD, a scar associated with CAD, PTSD, right foot disability, left foot disability, bilateral hearing loss, and lumbar spine disability; and entitlement to a TDIU In a July 2019 VA Form 21-4142a, the Veteran reported that he received medical treatment at a VA hospital in Columbia in 1983. The Veteran’s representative also requested that VA consider the Veteran’s VA Form 21-4142a in processing his claims. However, the VA medical records currently associated with the claims file do not include records dated in 1983. In July 2019, the Private Medical Records (PMR) retrieval center rejected a request to obtain records from that facility because the provider was non-private. There is no indication that the AOJ made any further efforts to obtain such records. Therefore, the AOJ should attempt to obtain any outstanding VA medical records. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information). In addition, the Veteran’s VA medical records reference private treatment records from the Cox Health Center located in the Vista Imaging System that are not currently associated with the claims file. See, e.g., July 2020, August 2020, and September 2020 VA community care medical records. The Veteran’s medical records also document that he received treatment for a variety of disorders at the Cox Health Center, including pain management and a heart disability. See, e.g., November 2020 VA medical record. However, the private treatment records from that facility are limited to records dated prior to 2020. Therefore, a remand is necessary to obtain any outstanding relevant records located in the Vista Imaging System. 38 C.F.R. § 3.159(c)(3). 14. Entitlement to a TDIU The issue of entitlement to TDIU has been raised by the record as part and parcel of the Veteran’s claims for increased evaluations for his service-connected lumbar spine disability, CAD, PTSD, bilateral hearing loss, left foot disability, and right foot disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also, Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran is currently assigned a 100 percent combined rating for his service-connected disabilities from August 27, 2019. The Board notes that the presence of a 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). Moreover, the Board finds that the issue of entitlement to TDIU is inextricably intertwined with the increased rating and service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). The matters are REMANDED for the following actions: 1. Obtain outstanding VA medical records pertaining to the Veteran, to include any records from a VA hospital in Columbia dated in 1983. 2. Obtain and associate with the claims file any outstanding treatment records located in CPRS or the Vista Imaging System that pertain to the disorders on appeal, to include any VA audiogram reports and private treatment records from the Cox Health Center. See February 2020 VA audiology record; see also July 2020, August 2020, and September 2020 VA community care records. All efforts undertaken and the responses received should be documented in the claims file. 3. Obtain a medical opinion from an appropriate examiner regarding the nature and etiology of the Veteran’s hypertension. The examiner must opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s current hypertension had its onset during active service, manifested within one year after discharge, or is otherwise causally or etiologically related to service. In providing such opinion, the examiner should specifically address the service treatment records that document elevated blood pressure readings. See, e.g., April 1977 health records. He or she should also consider the June 1979 service treatment record that noted an assessment of borderline hypertension. A complete rationale for any opinion offered should be provided. 4. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any cervical spine disorders that may be present. Any and all studies, tests, and evaluations deemed necessary should be performed. (a) The examiner should identify all current cervical spine disorders. (b) For each disorder identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s disorder had its onset during active service, manifested within one year after discharge, or is otherwise causally or etiologically related to service. In doing so, the examiner must address the Veteran’s reports of a combat injury from a mine explosion; in-service notations of a neck injury; and the Veteran’s reports of chronic symptoms since that time. A complete rationale for any opinion offered should be provided. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral ear hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria for DC 6100. 6. Schedule the Veteran for an examination to determine the severity of his service-connected right foot Morton’s neuroma with metatarsalgia and left foot degenerative joint disease, residuals of a fracture, os calcis. Any and all studies, tests, and evaluations deemed necessary should be performed and reported under the rating criteria for DCs 5279 (right foot) and 5284 (left foot). (a) The examiner should report all signs and symptoms necessary for rating the Veteran’s service-connected right and left foot disabilities under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) for both of the Veteran’s feet and describe the effects of pain on active and passive motion, in weight-bearing and nonweight-bearing, or explain why any such information cannot be provided. (b) The examiner should describe whether pain significantly limits functional ability when the joint is used repeatedly over a period of time or during flare-ups (if reported), and indicate range of motion. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. (c) The examiner should address whether any other foot diagnoses (including hallux valgus) are manifestations of the Veteran’s service-connected right and left foot disabilities or separate disorders. If the Veteran has a separate foot disorder, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was either caused or aggravated by the service-connected right and left foot disabilities. (d) To the extent possible, the examiner should distinguish which symptoms are attributable to the Veteran’s service-connected right and left foot disabilities as opposed to any other nonservice-connected disorder. If the examiner is unable to distinguish the symptomatology, the examiner should so state in the report and provide an explanation. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.