Citation Nr: 21029538 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 08-31 543 DATE: May 13, 2021 REMANDED Entitlement to service connection for cardiac disability (including coronary artery disease), to include as secondary to service-connected disability, is remanded. Entitlement to an initial rating higher than 20 percent, from November 18, 2005, for left shoulder rotator cuff tendonitis with degenerative changes is remanded. Entitlement to a higher initial rating for lumbar spine hypertrophic osteoarthritis L4-L5, L5-S1, rated 20 percent disabling, from November 18, 2005 through January 28, 2021, and 40 percent disabling, from January 29, 2021, 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 August 1978 to August 1981, March 1983 to February 1987, and July 2004 to November 2005, which includes service in Southwest Asia. He had additional service with the Army National Guard. His awards include the Combat Action Badge and Army Commendation Medal. These matters initially came before the Board of Veterans' Appeals (Board) from October 2007, September 2008, and August 2018 rating decisions. In the October 2007 decision, the agency of original jurisdiction (AOJ) denied entitlement to a rating in excess of 10 percent for left shoulder rotator cuff tendonitis with degenerative changes and denied entitlement to a TDIU. In the September 2008 decision, the AOJ awarded service connection for lumbar spine hypertrophic osteoarthritis L4-L5, L5-S1 and assigned an initial 20 percent disability rating, from January 14, 2006. In April 2010, the Board denied entitlement to a rating in excess of 10 percent for the service-connected left shoulder disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2010, the Court set aside the Board's April 2010 decision, in part, and remanded to the Board the issue of entitlement to a higher rating for the service-connected left shoulder disability for readjudication in compliance with directives specified in an October 2010 Joint Motion filed by counsel for the Veteran and VA. In May 2011, the Board granted an effective date of November 18, 2005 for the award of service connection for the service-connected back disability, and remanded the issues of entitlement to higher ratings for the service-connected left shoulder and back disabilities for further development. In December 2011, the AOJ implemented the Board's grant of an earlier effective date for the award of service connection for the service-connected back disability and assigned a 20 percent disability rating, from November 18, 2005. In April 2015, the Board denied entitlement to higher ratings for the service-connected left shoulder and back disabilities. The Veteran appealed the Board's decision to the Court. In October 2015, the Court set aside the Board's April 2015 decision, in part, and remanded to the Board the issues of entitlement to higher ratings for the service-connected left shoulder disability and back disability for readjudication in compliance with directives specified in a September 2015 Joint Motion filed by counsel for the Veteran and VA. In July 2016, the Board remanded the issues of entitlement to higher ratings for the service-connected left shoulder disability and back disability for further development in compliance with the Joint Motion. In December 2016, the AOJ assigned a 20 percent rating for the service-connected left shoulder disability, from November 18, 2005. In June 2017, the Board denied entitlement to higher ratings for the service-connected left shoulder disability and back disability, and remanded the issue of entitlement to a TDIU for further development. The Veteran appealed the Board's decision to the Court. In the August 2018 decision, the AOJ denied service connection for coronary artery disease. In August 2018, the Court set aside the Board's June 2017 decision, in part, and remanded to the Board the issues of entitlement to higher ratings for the service-connected left shoulder disability and back disability for readjudication in compliance with directives specified in an August 2018 Joint Motion filed by counsel for the Veteran and VA. In May 2019, the Board remanded the issues of entitlement to higher ratings for the service-connected left shoulder disability and back disability and entitlement to a TDIU for further development in compliance with the Joint Motion. In November 2020, the Board remanded all matters currently on appeal for further development. In March 2021, the AOJ assigned a 40 percent rating for the service-connected back disability, from January 29, 2021. As for characterization of the issues on appeal, the AOJ awarded service connection for left shoulder rotator cuff tendonitis and assigned an initial 10 percent disability rating, from November 18, 2005, in a February 2006 rating decision. VA treatment records were subsequently associated with the claims file in October 2006, and these records include evidence as to the severity of the Veteran's service-connected left shoulder disability. Hence, new and material evidence pertaining to the initial rating assigned for the service-connected left shoulder disability was received within a year of the February 2006 rating decision. The issue of entitlement to a higher rating for the service-connected left shoulder disability was readjudicated in the October 2007 rating decision, from which the current left shoulder appeal originates. As new and material was received within a year of the February 2006 rating decision, that decision is not final as to the initial rating assigned for the service-connected left shoulder disability. 38 C.F.R. § 3.156 (b). Thus, the left shoulder matter has been characterized as entitlement to a higher initial rating for left shoulder rotator cuff tendonitis with degenerative changes. Lastly, in light of the Veteran's reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for coronary artery disease as a claim of service connection for cardiac disability (including coronary artery disease). See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). 1. Entitlement to service connection for cardiac disability (including coronary artery disease), to include as secondary to service-connected disability, is remanded. The Veteran contends that he has current cardiac disability that is related to service (to include chemical exposures) or, in the alternative, is associated with his service-connected sleep apnea and/or posttraumatic stress disorder (PTSD). He was afforded a VA cardiac examination in August 2018 and was diagnosed as having coronary artery disease. In December 2020 and February 2021, a VA physician assistant reviewed the Veteran's claims file and opined that his coronary artery disease was not likely related to chemical exposures in service and was not likely caused or aggravated by his service-connected sleep apnea or PTSD. However, the physician assistant also explained in the December 2020 opinion that the Veteran's coronary artery disease was likely secondary to his non service-connected hypertension, which was "shown to have developed while in service." Overall, the December 2020 opinion suggests that the Veteran's cardiac disability may have had its onset in service along with his hypertension. However, the physician assistant did not specifically opine whether the Veteran's cardiac disability had its onset in service. In this regard, the Veteran's service treatment records include a September 2005 post-deployment health assessment form, on which he reported that he experienced dizziness/fainting/light headedness during his deployment and was still experiencing such symptoms at the time of the September 2005 assessment. Moreover, the medical opinions that have been obtained only address the Veteran's coronary artery disease and do not address any of the other cardiac diagnoses provided during the claim period (e.g., decompensated biventricular systolic heart failure, ischemic cardiomyopathy, and atrial flutter). In light of the above, a remand is necessary to obtain a new medical opinion as to whether any current cardiac disability is related to service or is caused or aggravated by service-connected disability. Moreover, evidence in the claims file, including a January 2008 statement from the Veteran (VA Form 21-4138), a January 2008 VA psychology note, an April 2018 VA gastroenterology secure messaging note, and a June 2019 VA mental health note indicate that the Veteran had applied for Social Security Administration (SSA) disability benefits and may have applied for federal disability retirement benefits for unspecified disability. Any outstanding records pertaining to the Veteran's claim(s) for SSA benefits and/or federal disability retirement benefits may be relevant to the issues on appeal. Hence, the AOJ should attempt to obtain any such relevant records upon remand. Also, a January 2018 VA addendum note indicates that the Veteran received treatment for cardiac disability at Emory Midtown. A remand is required to allow VA to obtain authorization and request these relevant outstanding private treatment records. Lastly, 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 Memphis Vista electronic records system (dated to November 2011) and the Atlanta VA Health Care System (dated to January 2021). 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 higher initial ratings for left shoulder rotator cuff tendonitis with degenerative changes (rated 20 percent disabling, from November 18, 2005) and lumbar spine hypertrophic osteoarthritis L4-L5, L5-S1 (rated 20 percent disabling, from November 18, 2005 through January 28, 2021, and 40 percent disabling, from January 29, 2021) and entitlement to a TDIU due to service-connected disabilities are remanded. The Board is cognizant of the fact that these matters have been in adjudicative status for years and have already been remanded multiple times in the past. Nevertheless, the Board finds that it is necessary to obtain outstanding SSA and/or federal disability retirement records and to seek further clarification as to the Veteran's employment history. Consequently, the Board wishes to assure the Veteran that it would not be remanding these matters again unless it was essential for a full and fair adjudication of his claims. As explained above, all outstanding SSA records, federal disability retirement records, and VA treatment records should be secured upon remand. Also, the Veteran most recently submitted a Veteran's Application for Increased Compensation Based on Unemployability form (VA Form 21-8940) in October 2007, on which he reported that he stopped working in August 2006. However, the evidence in the claims file indicates that he subsequently worked on a full time basis for many years and was still employed as recently as January 2021 (see a January 2021 VA gastroenterology secure messaging note). In the November 2020 remand, the Board instructed the AOJ to ask the Veteran to complete another VA Form 21-8940 in order to clarify his employment history. Pursuant to the Board's remand, the AOJ asked the Veteran to provide updated employment information and to complete a VA Form 21-8940 by way of a January 2021 letter, but he did not respond to the letter and has not otherwise provided any further information about his employment history. Therefore, he should be given another opportunity to report his employment history throughout the entire claim period. Lastly, since a decision on the remanded service connection and higher rating matters 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 complete a VA Form 21-8940 and to report his education and employment history and earnings, especially for the period since November 2006. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for cardiac disability, back disability, and left shoulder disability, 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 cardiac disability, back disability, and left shoulder disability from Emory Midtown and any other 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. 3. Obtain the Veteran's outstanding VA treatment records from the Memphis Vista electronic records system for the period since November 2011; the Atlanta VA Health Care System for the period since January 2021; and all such relevant records from any other sufficiently identified VA facility. 4. Contact the SSA and request a copy of that agency's decision(s) for disability and/or supplemental security income (SSI) benefits and all relevant records pertaining to the Veteran's claim(s). Document all requests for information as well as all responses in the claims file. 5. Contact the United States Office of Personnel Management (OPM) and request all records associated with any disability retirement claim(s) submitted by the Veteran. Document all requests for information as well as all responses in the claims file. 6. After all efforts have been exhausted to obtain and associate with the claims file any records from the SSA and OPM and any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any cardiac disability experienced by the Veteran since approximately April 2018 (including, but not limited to, coronary artery disease, decompensated biventricular systolic heart failure, ischemic cardiomyopathy, and atrial flutter) at least as likely as not (1) began during any period of active service; (2) manifested within one year after discharge from any period of active service; (3) is related to an injury or disease during service, including chemical exposures and his report of dizziness/fainting/light headedness on a September 2005 post-deployment health assessment form; (4) is caused by service-connected sleep apnea and/or PTSD; OR (5) is aggravated by service-connected sleep apnea and/or PTSD. (CONTINUED ON NEXT PAGE) The clinician must provide reasons for each opinion given. In this regard, the clinician should consider the December 2020 opinion from a VA physician that the Veteran's coronary artery disease was likely caused by his hypertension and that hypertension likely had its onset in service. 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.