Citation Nr: 21029254 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 11-03 500 DATE: May 13, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for unspecified anxiety disorder is dismissed. Entitlement to an initial rating in excess of 20 percent for peripheral vascular disease (PVD) of the left lower extremity (LLE) is dismissed. Entitlement to an initial rating in excess of 20 percent for PVD of the right lower extremity (RLE) is dismissed. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) and chronic gastritis is dismissed. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for diverticulitis is remanded. FINDINGS OF FACT 1. The Veteran has not submitted a Notice of Disagreement (NOD) to appeal VA's November 2020 assignment of an initial 30 percent rating for unspecified anxiety disorder. 2. The Veteran has not submitted an NOD to appeal VA's June 2020 assignment of an initial 20 percent rating for PVD of the LLE. 3. The Veteran has not submitted an NOD to appeal VA's June 2020 assignment of an initial 20 percent rating for PVD of the RLE. 4. The Veteran has not submitted an NOD to appeal VA's November 2020 assignment of an initial 10 percent rating for GERD and chronic gastritis. CONCLUSIONS OF LAW 1. The criteria for filing an NOD to the November 2020 rating decision granting service connection for unspecified anxiety disorder and assigning an initial 30 percent rating have not been met. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.202, 20.302(b). 2. The criteria for filing an NOD to the June 2020 rating decision granting service connection for PVD of the LLE and assigning an initial 20 percent rating have not been met. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.202, 20.302(b). 3. The criteria for filing an NOD to the June 2020 rating decision granting service connection for PVD of the RLE and assigning an initial 20 percent rating have not been met. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.202, 20.302(b). 4. The criteria for filing an NOD to the November 2020 rating decision granting service connection for GERD and chronic gastritis and assigning an initial 10 percent rating have not been met. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.202, 20.302(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1968 to August 1970. In February 2019, the Veteran presented sworn testimony before the undersigned during a video conference hearing in San Juan, Puerto Rico. A transcript of the hearing has been associated with the claims file. Dismissed Issues 1. Entitlement to an initial rating in excess of 30 percent for unspecified anxiety disorder 2. Entitlement to an initial rating in excess of 20 percent for PVD of the LLE 3. Entitlement to an initial rating in excess of 20 percent for PVD of the RLE 4. Entitlement to an initial rating in excess of 10 percent for GERD and chronic gastritis The Board must have jurisdiction to review the denial of a claim. To have jurisdiction, the Veteran must submit a written NOD within one year of notification of VA's denial of the claim to initiate an appeal. 38 C.F.R. § 19.20. VA denied the Veteran's claims for entitlement to service connection for unspecified anxiety disorder, PVD of the LLE, PVD of the RLE, and GERD and chronic gastritis in June 2020 and November 2020 rating decisions, assigning initial ratings and effective dates. The Veteran has not filed an NOD with any of the initial ratings assigned to initiate an appeal. denial. As the Veteran has not initiated an appeal for any of these claims, the Board does not have jurisdiction and must dismiss the claims. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.101 (d). The Board notes that the one-year period to file an NOD is still pending and that the Veteran may still do so if he wishes. Accordingly, the claims are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability The cervical spine disability claim was remanded in May 2019 for a VA examination and opinion. The examiner was specifically directed to consider whether the Veteran's cervical spine disability was caused or aggravated by any of his service-connected disabilities or by his claimed bilateral knee disabilities. The January 2021 examiner concluded that his cervical spine disability was not caused or aggravated by his service-connected prostate cancer, diabetes mellitus, peripheral neuropathies of the bilateral upper and lower extremities, tinnitus, hearing loss, ischemic heart disease, erectile dysfunction, or scar. However, he failed to address his claimed bilateral knee disabilities or his newly service-connected bilateral feet disabilities, low back disability, and PVD of the bilateral lower extremities. In light of these failures, the claim must be remanded for an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stegall v. West, 11 Vet. App. 268 (1998). 2. and 3. Entitlement to service connection for a right knee and left knee disability is remanded. The right and left knee disability claim was remanded in May 2019 for a VA examination and opinion. The examiner was specifically directed to consider whether the Veteran's right knee and left knee Osgood-Schlatter's disease pre-existed service and, if so, whether it was aggravated therein. The examiner was also directed to consider whether any right and/or left knee diagnosis was caused or aggravated by any of his service-connected disabilities. The November 2019 examiner failed to provide an opinion as to whether the right knee and/or left knee Osgood-Schlatter's disease pre-existed service and was aggravated therein or on secondary service connection. The January 2021 examiner concluded that the Veteran did not currently have Osgood-Schlatter's disease, despite the diagnosis made by the November 2019 examiner, within the appeals period. In light of these failures, the claim must be remanded for an addendum opinion. See Barr, supra; see also Stegall, supra. 4. Entitlement to service connection for hypertension is remanded. The hypertension claim was remanded in May 2019 for a new VA examination and opinion. The examiner was specifically directed to address the elevated blood pressure reading at the Veteran's separation examination. The December 2019 and February 2021 opinions stated that there were no in-service findings of elevated blood pressure readings, despite the separation examination finding. The October 2020 opinion noted borderline hypertension in service but did not provide an opinion on direct service connection. As none of the VA opinions provide an opinion on direct service connection in light of the elevated blood pressure reading at separation, the claim must be remanded for an addendum opinion. See Barr, supra; see also Stegall, supra. 5. Entitlement to service connection for hemorrhoids is remanded. The hemorrhoids claim was remanded in May 2019 for a VA examination and opinion. The December 2019 examiner concluded that the Veteran's hemorrhoids were less likely than not secondary adverse effects from his medications for service-connected disabilities or radiation therapy for service-connected prostate cancer. However, he did not provide an opinion on whether the Veteran's now service-connected radiation proctitis or remanded diverticulitis caused or aggravated his hemorrhoids. Given that these conditions affect the same areas of the anus and rectum, the Board finds that such an opinion is necessary. The claim must be remanded for an addendum opinion. See Barr, supra. 6. Entitlement to service connection for diverticulitis is remanded. The diverticulitis claim was remanded in May 2019 for a VA examination and opinion. The November 2019 VA examiner concluded that the Veteran's diverticulitis pre-existed his prostate cancer and radiation proctitis and was not caused by them. A January/February 2021 examiner found that the Veteran's diverticulitis was not caused or aggravated by a service-connected disability. However, the examiner listed use of nonsteroidal anti-inflammatory drugs (NSAIDs) as a risk factor for development of diverticulitis. The Veteran has a history of regular NSAID use for his service-connected disabilities. In fact, NSAID use is the basis of the grant of service connection for GERD and chronic gastritis. In light of the examiner's failure to address whether the Veteran's NSAID use for service-connected disabilities could have caused or aggravated his diverticulitis, this claim must be remanded for an addendum opinion. See Barr, supra. The matters are REMANDED for the following actions: 1. Send the Veteran's claims file to appropriate examiner(s) to provide addendum opinions regarding the nature and etiology of his cervical spine disability, right knee disability, left knee disability, hypertension, hemorrhoids, and diverticulitis. The Veteran may be recalled for examination(s) if deemed necessary. With regard to the cervical spine: a) whether it is at least as likely as not that the Veteran's cervical spine disability was caused or aggravated by his service-connected low back disability, peripheral vascular disease of the bilateral lower extremities, and bilateral pes planus. With regard to the right knee: a) the examiner must state whether right knee Osgood-Schlatter's disease clearly and unmistakably (undebatable) preexisted the Veteran's service. b) If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. c) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including moving heavy equipment, or a service-connected disability. With regard to the left knee: a) whether the Veteran's pre-existing left knee Osgood-Schlatter's disease was clearly and unmistakably not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. b) The examiner should specifically address the prominent left tibial tubercle at separation. With regard to hypertension: a) whether it is at least as likely as not that the Veteran's current hypertension is related to an in-service injury, event, or disease. b) The examiner must specifically address the elevated blood pressure reading at separation and state whether it indicates that hypertension began in service. With regard to hemorrhoids: a) whether it is at least as likely as not that the Veteran's hemorrhoids were caused or aggravated by his service-connected radiation proctitis or his diverticulitis. With regard to diverticulitis: a) whether it is at least as likely as not that the Veteran's diverticulitis was caused or aggravated by a service-connected disability, to include medications taken for such. b) The examiner must specifically address the Veteran's use of NSAIDs to treat his service-connected disabilities and the February 2021 VA opinion noting that NSAID use was a risk factor for diverticulitis. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.