Citation Nr: 21027175 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 20-19 069 DATE: May 4, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for residuals of stroke is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid or attendance, or at the housebound rate, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1954 to February 1957 and in the U.S. Air Force from February 1960 to February 1964. His decorations include the Parachutist Badge. These matters come to the Board of Veterans' Appeals (Board) on appeal from May 2018 and September 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its May 2018 rating decision, the RO denied service connection for a back disability and residuals of stroke. In its September 2018 rating decision, the RO denied SMC based on the need for regular aid and attendance, or at the housebound rate. The Board notes that the Veteran was previously denied service connection for a back disability in a June 2017 rating decision. After obtaining additional evidence, the RO readjudicated the Veteran's claim and confirmed its prior denial in the May 2018 rating decision, within one year of the original denial. The Board notes that in his June 2018 and October 2018 notices of disagreement (NODs), the Veteran expressly limited his appeal to the issues addressed herein. As such, the Board will limit its consideration to those issues as well. In October 2020, the Veteran and his spouse testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Entitlement to service connection for a back disability is remanded. The Veteran contends that his back disability was incurred in or caused by service. Specifically, he testified at his October 2020 hearing that he injured his back while serving in the Army when he jumped out of airplanes. He stated that he thought he had jumped up to 16 times, that he hurt himself a couple of times when he fell, and that he did not seek treatment. He also testified that during his service in the Army he took broken concrete blocks from other places and had to bury them, indicating that they were heavy. He stated that back pain manifested in the Army and had continued since. His wife testified that they had been married since 1980, and that when she met him he was seeing chiropractors right from the start and has continued to do so for many, many years. In support of his claim, the Veteran submitted lay statements from his brother, F.K., his sister, J.S., and his wife, R.K., in August 2018. His brother stated that the Veteran did not have any health problems prior to service, but that when he came home on leave and eventual discharge, he had severe back problems. He stated that the Veteran's back issues developed as a result of his time as a paratrooper. His sister also stated that the Veteran had no problems with his back prior to entering the Army, and that she had been aware of his back problems and known of him requiring treatment many times over the years. She added that the Veteran had stated to her that his back problems were a result of his injuries as a paratrooper. His wife stated that the Veteran's back had required treatment for as long as she had known him and that he told her that the problems began when he was a paratrooper. She added that when she first met him (some years after service) he had been seeing a chiropractor on a daily and weekly basis for over a year and a half. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). As to the first element of service connection, the Board notes that a June 2018 x-ray of the Veteran's lumbar spine shows severe arthritis and degenerative changes of the lumbosacral spine. A current disability has therefore been demonstrated. As to evidence of an in-service injury or disease, the agency of original jurisdiction (AOJ) initially attempted to obtain the Veteran's service treatment records (STRs) for his service in both the U.S. Army and the U.S. Air Force in January 2017. It obtained and associated with the record STRs for his period of service in the U.S. Air Force that same month. Regarding the AOJ's request for STRs for his period of service in the U.S. Army, however, a January 2017 PIES response indicated that the National Personnel Records Center (NPRC) could not identify an Army record, and that all available records from the Veteran's Air Force record that contained Army, Army Air Corps, and Air Force information had been sent and associated with the claims file. In June 2017, the AOJ sent the Veteran a letter informing him that the NPRC clarified that it did not have records related to his period of service in the Army, that all efforts to obtain them had been exhausted, and that further attempts to obtain them would be futile. In cases such as this, where the Veteran's complete STRs are not available, the Board's obligation to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt doctrine, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). While acknowledging that STRs are unavailable for the Veteran's period of service in the U.S. Army, the Board notes that STRs from his later period of service in the U.S. Air Force (from February 1960 to February 1964) are silent for complaints of, treatment for, or a diagnosis of any condition related to the back. While the Veteran contends that he injured his back during his period of service in the U.S. Army from March 1954 to February 1957, he did not report any problems with his back at his February 1960 U.S. Air Force entrance examination, and no problems regarding his back were noted or reported at any time during his service in the U.S. Air Force, including at the time of his February 1964 separation examination. The Veteran was afforded a VA examination in March 2018. The examiner found that the Veteran did not have a back condition and remarked that the Veteran could not give a detailed or accurate history due to residuals of a stroke, even with the assistance of his wife, who was present. She stated that in the absence of any medical evidence from STRs which showed a chronic or pathologic condition of the spine and in the absence of any post-military records which documented a chronic or pathologic condition of the spine, she would have to affirm the negative opinions as to service connection rendered in the [June 2017] rating decision based on the fact that U.S. Air Force STRs were silent for any back problems. The Board finds the March 2018 VA examination and opinion inadequate. As subsequent evidence demonstrates that the Veteran has a current back disability, the examiner's finding that the Veteran did not have a back condition is inconsistent with the evidence of record. The examiner also failed to take into account the Veteran's period of service in the U.S. Army and the fact that STRs from that period of service are unavailable. Consideration of the unavailability of STRs during this time period is of critical importance given that it is the period in which the Veteran contends he first injured his back. She also failed to take into account the Veteran's contention that he injured his back while jumping as a paratrooper. The Veteran submitted a statement from his treating chiropractor, M.A., D.C. in June 2018. Dr. A. stated that the Veteran presented earlier that month because of pain he was having in his neck, middle back, and low back areas. He further stated that the Veteran explained that he had pains daily and that they went all the way back to when he was in the military when he was a paratrooper and injured his spine several times from jumping out of planes and landing. Dr. A. noted that he examined the Veteran's spine and took x-rays, which revealed severe arthritis and degeneration. He stated that in his professional opinion, the Veteran's problems had been developing for many years, and that he would say that the problems he was suffering with were related to the continuous traumas he obtained during his years of military service. While clearly supportive of the Veteran's claim, the Board finds that Dr. A.'s June 2018 statement is insufficient for an award of service connection at present. There is no indication that Dr. A. reviewed the Veteran's STRs or any other records in the claims file. While his opinion that the Veteran's problems have been developing for many years is supported by x-ray imaging showing severe arthritis and degeneration, his opinion that the Veteran's back disability is related to service is not supported by any rationale, and appears to be based solely on the Veteran's report. In December 2018, the Veteran was afforded a second VA examination by the same examiner who examined him in March 2018. The examiner did not provide a response with respect to a current diagnosis, but she did cite to the June 2018 x-ray of the lumbar spine showing severe arthritis and degenerative changes. The examiner again gave a negative nexus opinion, stating that, as had been stated in "multiple prior exam opinions," there was no medical evidence of any chronic or pathologic condition of the back during service nor was there any medical evidence of any injury to the back during service. She cited to Dr. A.'s treatment records, but reasoned that the remoteness of the diagnosis of this chronic condition from service along with the absolute absence of any known back problem or back injury with sequelae in service made it extremely unlikely that the Veteran's chronic back condition was in any way related to service. She further reasoned that the Veteran's wife's lay statement and Dr. A.'s private opinion were not supported by any review of the STRs or other medical records and did not include any scientific rationale. The Board finds that the December 2018 examiner did not take into account the fact that STRs from the Veteran's period of service in the U.S. Army are unavailable. She also did not fully take into account the Veteran's contentions that he injured his back during his service in the Army while jumping from planes and landing and when moving heavy concrete blocks. Still further, while the examiner considered Dr. A.'s June 2018 private opinion and the Veteran's wife's August 2018 lay statement, she did not consider the August 2018 lay statements of the Veteran's brother and sister. Finally, her December 2018 nexus opinion appears to be influenced by her earlier, March 2018 opinion, inasmuch as she indicated that she was repeating statements from 'multiple prior exam opinions.' The Board notes that there is only one such prior opinion, not multiple, that it was offered by the same examiner, and that it was offered prior to when the claims file contained evidence of a current diagnosis. The Board finds that the examiner's apparent reliance on her March 2018 nexus opinion when formulating her December 2018 nexus opinion was therefore questionable. Under the circumstances, and with VA's heightened duty to assist in mind, an addendum opinion from another VA examiner is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board acknowledges that the Veteran submitted another statement from Dr. A. in January 2021. Dr. A. stated that after reviewing the Veteran's records, working with him in the past, and according to his findings and his communication with the Veteran about his problems, he still supported the statement he provided in June 2018. The Board finds that Dr. A.'s January 2021 statement does not adequately address what records he reviewed, or how that review further informed his June 2018 opinion. It is therefore insufficient for an award of service connection at present. Importantly, Dr. A. did not state that he reviewed the Veteran's STRs, and he certainly offered no explanation as to how the Veteran's back disability was related to his service even in the absence of any complaints of, treatment for, or a diagnosis of any condition related to the back during the Veteran's period of service in the U.S. Air Force, which was subsequent to when he contends he injured his back by way of parachute jumps and moving concrete blocks. The Board also notes that the first record of treatment for any back problems in the claims file is a June 2018 treatment record from Dr. A. 54 years after the Veteran's separation from service. As noted above, the Veteran and his wife testified at his October 2020 hearing that he had been receiving treatment for his back from chiropractors for many years, since at least 1980 when they were married. While the Veteran testified that he currently receives treatment for his back disability from chiropractors at 'IMAC' in Paducah, Kentucky, he has not, to date, identified any other chiropractors or other private providers who have treated him for his back disability. Inasmuch as the claims file does not contain records of treatment from IMAC, on remand, efforts should be made to obtain them. With VA's heightened duty to assist in mind, the Board also finds that the Veteran should also be given another opportunity to identify and provide an appropriate release for records from any private treatment providers who have treated him for his back disability, with particular emphasis on any records of treatment prior to June 2018. Updated records of any VA treatment should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). 2. Entitlement to service connection for residuals of stroke is remanded. The Veteran contends that he had a stroke that was caused by service. Specifically, he contended in a January 2017 document that he was exposed to gasoline on a cleaning detail during his service in the Army. He contends that this exposure caused tremors which he has had since, that tremors caused atrial fibrillation, that atrial fibrillation caused a stroke, and that he now suffers from residuals of stroke. In their August 2018 lay statements, the Veteran's brother, sister, and wife provided statements related to residuals of stroke. His brother stated that when the Veteran came home on leave and eventual discharge, he had hand tremors, and that the Veteran told him that he had been exposed to severe gasoline fumes over and over again in the Army and that his hand tremors were a direct result of that. His sister stated that her mother brought to her attention the fact that after discharge from service the Veteran's hands were shaking and that she also began to notice this. She stated that she lived with him for an entire summer when he was in the Air Force when she saw his hands shaking and that the Veteran told her it happened after being exposed to gasoline in the Army on a work detail. His wife stated that she noticed the Veteran's hands shaking early in their relationship, and that the Veteran told her they began shaking after he was on cleaning duties in the Army. As to the first element of service connection, the Board notes that a December 2018 VA examination shows that the Veteran had an ischemic stroke secondary to atrial fibrillation in August 2015. A current disability has therefore been demonstrated. As to evidence of an in-service injury or disease, the Board again notes that the Veteran's STRs for his period of service in the U.S. Army are unavailable. The Board's obligation to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt doctrine, is therefore heightened. See O'Hare, Pruitt, supra. The Board also notes that the Veteran's STRs for his period of service in the U.S. Air Force are silent for complaints of, treatment for, or a diagnosis related to any gasoline exposure during service or possible residual effects of that exposure. They are also silent for tremors. Turning to post-service records, the Board notes that a May 2017 private treatment record notes diagnoses of tremor, cerebrovascular accident (CVA) due to embolism of left middle cerebral artery, and toxic effect of other specified gases, fumes and vapors. A treatment record from the Veteran's treating provider E.G., M.D. indicates under history of present illness that the Veteran had had tremor for years since being exposed to gasoline while in the military, that there was no family history of tremor, and that the tremor was worse after his stroke. In June 2018, the Veteran submitted a statement from his private provider, C.S., M.D. Dr. S. stated that the Veteran had a stroke in August 2015 which affected his memory, that he had had tremors since being exposed to gasoline while in the military, and that he developed tremors shortly after the exposure which led to atrial fibrillation as well as other related health issues. While clearly supportive of the Veteran's claim, the Board finds that Dr. S.'s June 2018 statement is insufficient for an award of service connection at present. Dr. S. does not appear to have reviewed the Veteran's STRs or other medical records, and his statement that the Veteran's exposure to gasoline in service led to atrial fibrillation is not supported by any rationale. The Veteran was afforded a VA examination in connection with his claim in December 2018. As noted above, the examiner diagnosed ischemic stroke secondary to atrial fibrillation, and indicated that the Veteran's stroke residuals did not impact his ability to work. She also offered a negative nexus opinion, reasoning that there were no documented incidences of gasoline or cleaning product exposures during service or any documented complaints or side effects or ill effects of any purported gasoline or chemical exposures during service. She further reasoned that there was no medical evidence of any problems or symptoms which could represent tremors, atrial fibrillation, or other problems/complaints relative to any type of exposure during service, and that according to a review of medical literature, there were no specifically known long-term effects of gasoline exposure. She found that an ischemic stroke more than 50 years after separation from service would be too remote to be considered service related. She also cited to the lay statements and private medical opinions of record and stated that they were not based on any review of the STRs and did not offer any scientific rationale. She noted that the Veteran had risk factors of a 60-pack per year history of smoking and a new onset of atrial fibrillation with an associated ischemic stroke event and that his stroke was medically explained by these factors. The Board finds that the December 2018 examiner did not fully take into account the fact that the Veteran's STRs for the period of his service in the U.S. Army are unavailable. Still further, while she cited to the lay statements of record, she did not adequately address the Veteran's contention that he has had tremors since service, or the other lay statements regarding the observation of tremors. Finally, the examiner's statement that residuals of stroke does not impact the Veteran's ability to work is significantly inconsistent with other evidence of record, including her own examination, which indicates that the Veteran has significantly limiting residuals. This inconsistency calls into question whether the December 2018 VA examiner fully reviewed and considered the evidence of record, including the Veteran's contentions. Under the circumstances, and addendum opinion from another VA examiner is warranted. See Barr, supra. The Board acknowledges that in November 2020, the Veteran submitted another statement from Dr. S. Dr. S. stated that in reviewing the records, the Veteran had a CVA in 2015 that greatly affected his memory, that he had had persistent tremors since being exposed to gasoline while in the military, and that his atrial fibrillation could have precipitated his CVA. The Board finds that Dr. S.'s November 2020 statement is insufficient for an award of service connection. While he stated he reviewed the Veteran's records, it appears from his statement that the records he reviewed were those relating to the stroke itself in 2015, and not the Veteran's STRs. Still further, his statement that atrial fibrillation could have precipitated the stroke is speculative, in that it expresses an opinion in terms of possibility, rather than probability. As a final matter, the Board notes that at his October 2020 hearing, the Veteran testified that he received treatment for stroke residuals from a Dr. B. in Gilbertsville, Kentucky, as well as from other providers. While records from the other private providers he identified at his October 2020 hearing are present in the claims file, there are no records of treatment from Dr. B. On remand, efforts should be made to obtain them. 3. Entitlement to SMC based on the need for regular aid or attendance, or at the housebound rate, is remanded. The Veteran contends that he is entitled to SMC based on the need for regular aid or attendance, or at the housebound rate, due to residuals of his stroke. The Board notes that the Veteran is currently service-connected only for hearing loss and tinnitus, and that his combined rating is 20 percent. His claim of entitlement to SMC is directly related to his claim for service connection for residuals of stroke. That is to say, the claims are inextricably intertwined. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). As such, the Board will remand the SMC claim as well. These matters are REMANDED for the following action: 1. Ask the Veteran to provide appropriate releases for records from IMAC in Paducah, Kentucky and from Dr. B. in Gilbertsville, Kentucky, and to identify and provide releases for any other care providers who may possess new or additional evidence pertinent to the issues on appeal, with particular emphasis on any private providers (including chiropractors) who treated him prior to June 2018. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran's claims file reviewed by a qualified VA examiner (other than the examiner who evaluated his case in March 2018 and December 2018, if possible) to obtain an opinion as to the etiology of his back disability. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's back disability is consistent with an injury of the type he has described as having happened during service. In so doing, the examiner should consider and address the Veteran's contention that he jumped out of airplanes and landed up to 16 times during service, and that he injured his back when moving heavy concrete blocks. The examiner should also consider the December 2018 VA examination and opinion, the August 2018 lay statements of the Veteran's brother, sister, and wife, and the June 2018 and January 2021 statements from Dr. A. Inasmuch as the Veteran's STRs for the period of his service in the U.S. Army are unavailable, the examiner should not offer an opinion on the sole basis that there is no recorded in-service notation of the injury during that earlier period of service. Rather, the examiner should consider the nature of the in-service injury and whether the Veteran's back disability is consistent with injuries of the type the Veteran has described. The examiner should also consider, however, that the Veteran's STRs from his subsequent period of service in the U.S. Air Force are silent for complaints of, treatment for, or a diagnosis related to a back disability. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as to why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. The need for another in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 4. Also arrange to have the Veteran's claims file reviewed by a qualified VA examiner (other than the examiner who evaluated the Veteran's case in December 2018, if possible) to obtain an opinion as to the etiology of his stroke. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's stroke is consistent with his exposure to gasoline during service. In so doing, the examiner should consider and address the Veteran's contention that he was exposed to gasoline while cleaning during service and that it resulted in tremors that have continued since. The examiner should also consider the May 2017 private treatment record noting diagnoses of tremor, CVA due to embolism of left middle cerebral artery, and toxic effect of other specified gases, fumes and vapors; the May 2017 treatment record from Dr. G. indicating that the Veteran has had tremors for years since being exposed to gasoline while in the military and that there is no family history of tremor; and the December 2018 VA examination and opinion. The examiner should further consider the August 2018 lay statements of the Veteran's brother, sister, and wife, and the June 2018 and November 2020 statements from Dr. S. Inasmuch as the Veteran's STRs for the period of his service in the U.S. Army are unavailable, the examiner should not offer an opinion on the sole basis that there is no recorded in-service notation of gasoline exposure during that period of service. Rather, the examiner should consider the nature of the in-service injury and whether the Veteran's stroke is consistent with exposure to gasoline. The examiner should also consider, however, that the Veteran's STRs from his subsequent period of service in the U.S. Air Force are silent for complaints of, treatment for, or any diagnosis related to gasoline exposure, to include any report or treatment related to tremors. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as to why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. The need for another in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.