Citation Nr: 21025757 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-55 550 DATE: April 28, 2021 REMANDED Entitlement to service connection for back disability is remanded. Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for bilateral ankle disability is remanded. Entitlement to service connection for bilateral hip disability is remanded. Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. Entitlement to service connection for disability manifested by impaired balance is remanded. Entitlement to service connection for disability manifested by fatigue, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for disability manifested by memory loss is remanded. Entitlement to service connection for bilateral hand disability (claimed as hand tremors) is remanded. Entitlement to service connection for speech disability is remanded. Entitlement to service connection for bilateral eye disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from at least January 2003 to January 2005. He had additional service with the Army National Guard, to include, but not limited to, periods of active duty for training (ACDUTRA) from January 1998 to April 1998 and active duty for special work (ADSW) from June 2002 to December 2002. These matters initially came before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2020 hearing and a transcript of the hearing has been associated with his claims file. In April 2020, the Board remanded these matters for further development. 1. Entitlement to service connection for back disability, cervical spine disability, bilateral ankle disability, and bilateral hip disability are remanded. The Veteran contends, among other things, that he has current back disability, cervical spine disability, bilateral ankle disability, and bilateral hip disability, and that these disabilities are all related to his various physical duties in service and his wearing/carrying of heavy equipment. VA back, cervical spine, ankle, and hip examinations were conducted in January 2021 and the Veteran was diagnosed as having degenerative arthritis and degenerative disc disease of the thoracolumbar spine, a cervical strain, bilateral lateral collateral ligament sprain, and right hip trochanteric pain syndrome. The physician who conducted the examinations opined that the Veteran’s back, cervical spine, bilateral ankle, and right hip disabilities were not related to service. These opinions are all inadequate because the only claimed in-service injury that they address is the Veteran’s reported fall from a helicopter. The opinions do not discuss whether the Veteran’s claimed disabilities are related to his various physical duties that were performed throughout his time in service and his wearing/carrying of heavy equipment. Moreover, the physician did not provide any opinion as to whether the Veteran’s claimed left hip disability is related to service because he did not report any left hip problems during the January 2021 examination. However, the Veteran has reported left hip pain and stiffness during the claim period (see a September 2011 VA physical therapy note and the Veteran’s testimony during the January 2020 Board hearing), and evidence of pain alone is sufficient in some circumstances to show the existence of current disability. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110). In light of the above deficiencies, a remand is necessary to obtain new appropriate medical opinions as to whether the Veteran’s claimed back, cervical spine, ankle, and hip disabilities were incurred in or aggravated by service. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Roseburg VA Health Care System and are dated to September 2020. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for residuals of TBI is remanded. The Veteran was afforded a VA TBI examination in December 2020 and the physician who conducted the examination concluded that the Veteran did not have any residuals of TBI. However, a review of the Veteran’s treatment records reflect that he has reported headaches during the claim period and a January 2016 VA physician emergency department note includes a diagnosis of migraine headaches. Therefore, a remand is necessary to obtain an opinion as to whether the Veteran’s headaches were incurred in or aggravated by service. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to service connection for disability manifested by impaired balance is remanded. The Veteran was afforded a VA ear conditions (including vestibular and infectious conditions) examination in December 2020. The physician who conducted the examination concluded that there was no objective evidence to support a diagnosis of any disability manifested by impaired balance. Therefore, no opinion was provided as to whether any such disability is related to service. However, the Veteran’s treatment records reflect that he has been diagnosed as having vertigo during the claim period (see an August 2012 VA physician emergency department note). Therefore, a remand is necessary to obtain an opinion as to whether the Veteran’s vertigo was incurred in or aggravated by service. Also, all outstanding VA treatment records should be secured upon remand. 4. Entitlement to service connection for disability manifested by fatigue is remanded. In the April 2020 remand, the Board instructed the agency of original jurisdiction (AOJ) to schedule the Veteran for an examination to determine the nature of any current disability manifested by fatigue and obtain a medical opinion as to whether any such disability is related to service. Pursuant to the Board’s remand, the Veteran was afforded a chronic fatigue syndrome examination in January 2021. The physician who conducted the examination concluded that the Veteran did not meet the criteria for chronic fatigue syndrome, and no further opinion was provided as to whether any disability manifested by fatigue is related to service. The January 2021 examiner noted that although the Veteran did not have chronic fatigue syndrome, he did experience other clinical conditions that may produce similar symptoms (i.e., insomnia and sleep apnea). The Veteran has already been awarded service connection for sleep apnea, but no opinion has been provided as to whether his insomnia was incurred in or aggravated by service. Also, the evidence reflects that the Veteran experiences sleep impairment associated with his service-connected psychiatric disability and sleep apnea. Therefore, an appropriate medical opinion should be obtained as to whether the Veteran’s insomnia was incurred in or aggravated by service or is caused or aggravated by service-connected disability(ies). Also, all outstanding VA treatment records should be secured upon remand. 5. Entitlement to service connection for bilateral hand disability (claimed as hand tremors), speech disability, bilateral eye disability, and disability manifested by memory loss are remanded. As the record currently stands, there is no evidence of any current hand disability, speech disability, eye disability (refractive error is not a disease or injury within the meaning of applicable legislation relating to service connection), or disability manifested by memory loss. As additional evidence is being sought upon remand which may document evidence of such disabilities, the claims of service connection for bilateral hand disability, speech disability, bilateral eye disability, and disability manifested by memory loss are being remanded, as well. Also, all outstanding VA treatment records should be secured upon remand. 6. Entitlement to a TDIU due to service-connected disabilities is remanded. The Veteran submitted his claim for a TDIU (VA Form 21-8940) in September 2012. At that time, he reported that he had stopped working in September 2012. In the years since that time, he has secured other employment in various positions and was employed as recently as March 2020 (see an April 2020 VA Form 21-8940 and a February 2021 VA Form 21-4192). He reported on the April 2020 VA Form 21-8940 that his psychiatric disability “got in the way of [him] being able to function in [the] work place.” The Veteran is currently service-connected for the following disabilities: sleep apnea, major depression and anxiety, chondromalacia patella and degenerative joint disease of the right knee, degenerative joint disease of the left knee, bilateral foot metatarsalgia, tinnitus, gastroesophageal reflux disease with irritable bowel syndrome, and bilateral hearing loss. He has not been afforded VA examinations during the claim period for much of these disabilities to determine the functional impacts of these disabilities and their effects on his ability to perform substantially gainful employment. Upon remand, the Veteran should be given an opportunity to report for appropriate examinations to assess the impact of his service-connected disabilities upon his ability to work. Also, all outstanding VA treatment records should be secured upon remand. Lastly, since a decision on the other remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for ankle disability, hip disability, cervical spine disability, back disability, residuals of TBI, hand disability, speech disability, impaired balance, eye disability, fatigue, and memory loss, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for ankle disability, hip disability, cervical spine disability, back disability, residuals of TBI, hand disability, speech disability, impaired balance, eye disability, fatigue, and memory loss from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Roseburg VA Health Care System for the period since September 2020; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any back disability experienced by the Veteran since approximately August 2011 at least as likely as not (1) began during any period of active service, ACUDTRA, or INACDUTRA; (2) manifested within one year after separation from any period of active service (in the case of any currently diagnosed arthritis); (3) is related to an injury or disease during a period of service, including his physical duties performed throughout service and his wearing/carrying of heavy equipment; or (4) was aggravated by a period of service. The clinician must provide reasons for each opinion given. In this regard, the clinician must specifically address whether any current back disability is related to the Veteran’s physical duties performed throughout service and his wearing/carrying of heavy equipment. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any cervical spine disability experienced by the Veteran since approximately August 2011 at least as likely as not (1) began during any period of active service, ACUDTRA, or INACDUTRA; (2) manifested within one year after separation from any period of active service (in the case of any currently diagnosed arthritis); (3) is related to an injury or disease during a period of service, including his physical duties performed throughout service and his wearing/carrying of heavy equipment; or (4) was aggravated by a period of service. The clinician must provide reasons for each opinion given. In this regard, the clinician must specifically address whether any current cervical spine disability is related to the Veteran’s physical duties performed throughout service and his wearing/carrying of heavy equipment. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any ankle disability experienced by the Veteran since approximately August 2011 at least as likely as not (1) began during any period of active service, ACUDTRA, or INACDUTRA; (2) manifested within one year after separation from any period of active service (in the case of any currently diagnosed arthritis); (3) is related to an injury or disease during a period of service, including his physical duties performed throughout service and his wearing/carrying of heavy equipment; or (4) was aggravated by a period of service. The clinician must provide reasons for each opinion given. In this regard, the clinician must specifically address whether any current ankle disability is related to the Veteran’s physical duties performed throughout service and his wearing/carrying of heavy equipment. 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any hip disability experienced by the Veteran since approximately August 2011 (including, but not limited to, bilateral hip pain) at least as likely as not (1) began during any period of active service, ACUDTRA, or INACDUTRA; (2) manifested within one year after separation from any period of active service (in the case of any currently diagnosed arthritis); (3) is related to an injury or disease during a period of service, including his physical duties performed throughout service and his wearing/carrying of heavy equipment; or (4) was aggravated by a period of service. The clinician must provide reasons for each opinion given. In this regard, the clinician must specifically address whether any hip disability is related to the Veteran’s physical duties performed throughout service and his wearing/carrying of heavy equipment. 7. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any headaches experienced by the Veteran since approximately August 2011 at least as likely as not (1) began during any period of active service, ACUDTRA, or INACDUTRA; (2) manifested within one year after separation from any period of active service; (3) is related to an injury or disease during a period of service; or (4) was aggravated by a period of service. The clinician must provide reasons for each opinion given. 8. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any vertigo experienced by the Veteran since approximately August 2011 at least as likely as not (1) began during any period of active service, ACUDTRA, or INACDUTRA; (2) manifested within one year after separation from any period of active service (in the case of any currently diagnosed organic disease of the nervous system); (3) is related to an injury or disease during a period of service; or (4) was aggravated by a period of service. The clinician must provide reasons for each opinion given. 9. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any insomnia experienced by the Veteran since approximately August 2011 at least as likely as not (1) began during any period of active service, ACUDTRA, or INACDUTRA; (2) is related to an injury or disease during a period of service; (3) was aggravated by a period of service; (4) is caused by service-connected major depression and anxiety and/or sleep apnea; OR (5) is aggravated by service-connected major depression and anxiety and/or sleep apnea. The clinician must provide reasons for each opinion given. 10. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for appropriate examination(s) (or telehealth interview, review of the record, etc., if in-person examinations are not feasible) to determine the impact of his service-connected disabilities upon his occupational functioning. Based on any examination findings and the Veteran’s documented medical history and lay assertions, the clinician(s) should identify any functional impairments due to his service-connected disabilities, alone, and discuss the effects of these disabilities on any occupational functioning and activities of daily living. The clinician(s) must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.