Citation Nr: 21030406 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 05-23 031 DATE: May 18, 2021 REMANDED 1. Entitlement to service connection for a lumbar spine disability is remanded. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. 3. Entitlement to service connection for a disability manifested by ear pain and dizziness is remanded. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to March 14, 2016, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1967 to March 1970, and has additional unconfirmed Army National Guard service. This matter is before the Board of Veterans' Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal of a January 2014 rating decision. In November 2017, the matter was remanded for additional development. A February 2020 Board decision denied entitlement to service connection for hypertension, a lumbar spine disability, a disability manifested by ear pain and dizziness, and entitlement to a TDIU rating prior to March 14, 2016. The Veteran appealed that decision to the CAVC. A December 2020 CAVC Order vacated the Board's February 2020 decision that denied service connection for hypertension, a lumbar spine disability, a disability manifested by ear pain and dizziness, and entitlement to a TDIU rating prior to March 14, 2016 and remanded the matters to the Board for further development and re-adjudication consistent with terms of a December 2020 Joint Motion for Remand (JMR). 1., 2., 3. Entitlement to service connection for a lumbar spine disability, hypertension, and a disability manifested by ear pain and dizziness. In the December 2020 JMR, the parties agreed that vacatur and remand was required because the Board erred by failing to ensure satisfaction of the duty to assist and by providing an inadequate statement of reasons or bases to support its decision. See 38 U.S.C. §§ 5103A,7104(d)(1); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Regarding the Veteran's lumbar spine disability, the parties agreed that the Board erred in failing to ensure that VA satisfied its duty to assist by obtaining his Army National Guard (ARNG) medical treatment and personnel records. In an August 2011 statement and on August 2018 spine examination, the Veteran reported serving in the ARNG with the 20th Special Forces Group in 1978 and being sent to "jump" school where he injured his back. It did not appear that VA made any efforts to obtain records from his ARNG service. Additionally, the parties noted that the August 2018 VA examiner relied on an absence of evidence (i.e. lack of ARNG records) in coming to a negative etiological opinion. Therefore, remand is necessary to attempt to obtain records of the Veteran's ARNG service, and if such records confirm such service, an addendum medical opinion regarding the likely etiology of the lumbar spine disability may be necessary. Regarding hypertension, the parties agreed that in denying the Veteran's claim, the Board failed to ensure satisfaction of the duty to assist when it relied on inadequate VA medical opinions. The January 2014 VA examiner stated that "there is no medical literature supportive of the causal relationship between PTSD and hypertension" but did not address the medical literature identified by the Veteran (on examination and in an October 2012 written statement) supporting such a connection, including as due to aggravation, and the July 2018 VA examiner opined that the Veteran's hypertension was not caused or aggravated by his service-connected PTSD because there was no spike in his blood pressure readings around the time of his PTSD diagnosis, which the examiner wrote was diagnosed at VA June 9, 2010. However, the examiner materially misstated the date of the Veteran's PTSD diagnosis. A September 14, 2004 VA Psychiatry note indicates that PTSD was diagnosed in 2004, when he also had elevated blood pressure without a diagnosis of hypertension, making the factual premise underlying the July 2018 opinion inaccurate, and entitling the opinion to no weight. Therefore, remand is necessary for an adequate medical advisory opinion that addresses the aforementioned medical literature submitted by the Veteran, the VA treatment records showing elevated blood pressure without a diagnosis of hypertension around the same time that PTSD was diagnosed and that his blood pressure reading at his March 17, 1970 discharge examination was 140/90. Regarding a disability manifested by ear pain and dizziness, the parties agreed that the Board failed to address medical records showing that the Veteran had reported (on February 2004 VA Agent Orange examination, in December 2003 and January 2004 VA treatment records, and June 2004 and October 2008 treatment records) ear pain since, and related to, concussions in Vietnam. The Veteran served in combat and received a Combat Action Ribbon. His service treatment records (STRs), are silent for complaints, treatment, findings, or diagnosis pertaining to a concussion during service. Considering that he served in combat, however, it may be accepted as factual that during service he sustained a concussion/head injury (of unknown severity) due to explosions from artillery shells. In an August 2018 VA ear conditions opinion, intermittent bilateral otalgia was diagnosed, and the examiner opined that the Veteran's ear pain and dizziness are not related to his service because there was no objective evidence of ear pain and dizziness being incurred in, caused by, or a result of his military service, and any intermittent dizziness was not vertigo and not due to a peripheral vestibular disorder. The opinion is inadequate because the examiner did not address the Veteran's lay reports and the medical evidence indicating that a disability manifested by ear pain and dizziness may be related to a concussion incurred during service. Therefore, remand is necessary for examination to obtain an adequate medical advisory opinion regarding the etiology of the Veteran's disability manifested by ear pain and dizziness. 4. Entitlement to a TDIU rating prior to March 14, 2016. The claim of entitlement to TDIU prior to March 14, 2016, is inextricably intertwined with the other claims being remanded (a grant of service connection for hypertension, a lumbar spine disability, or a disability manifested by ear pain and dizziness would impact on the analysis of the TDIU claim). Therefore, consideration of the TDIU claim must be deferred. The matters are REMANDED for the following: 1. Ask the Veteran to identify which state's Army National Guard he was assigned to, and the dates of such service. Then arrange for exhaustive development to verify the Veteran's specific dates of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) (to specifically include ACDUTRA in 1978). All requests for records and the responses must be associated with the record. If any periods of ACDUTRA and INACDUTRA are verified, arrange for exhaustive development to obtain the Veteran's ARNG medical and personnel records. If, upon exhaustive development, the Veteran's ARNG medical and personnel records cannot be obtained, it must be so stated for the record, the reason why that is so must be explained for the record, the scope of the attempts at obtaining such records should be described, and the Veteran must be so notified. If, upon exhaustive development, the Veteran's periods of ACDUTRA and INACDUTRA cannot be verified, it must be so stated for the record, the reason why that is so must be explained for the record, the scope of the attempts at verification should be described, and he must be so notified. 2. If and only if, the above development confirms the Veteran's period of ACDUTRA in 1978, return the Veteran's record to the August 2018 VA examiner (or another appropriate physician if that provider is not available) for re-review and an addendum medical opinion regarding the etiology of his lumbar spine disability. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] The consulting provider should: (a) Identify (by diagnosis) each lumbar spine disability entity found/or shown by the record during the pendency of the instant claim. (b) Identify the likely etiology for each lumbar spine disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it was incurred during the Veteran's reported period of ACDUTRA in 1978 and his jump school training? (c) If the opinion is that a diagnosed low back disability was not incurred during a period of ACDUTRA or INACDUTRA, identify the etiology that is considered more likely (and explain why that is so). The provider must include rationale with all opinions, citing to supporting factual data as deemed appropriate. 3. Arrange for the Veteran's record to be forwarded to an appropriate physician, other than the 2018 VA examiner (e.g. internist or cardiologist, and if deemed needed, with psychiatry consult) for review and an advisory medical opinion regarding the likely etiology of his hypertension. After a review of the entire claims file (to include the aforementioned medical literature submitted by the Veteran and the VA treatment records showing elevated blood pressure without a diagnosis of hypertension around the same time that PTSD was diagnosed), the consulting provider should respond to the following: (a) Is it at least as likely as not (a 50% or better probability) that the Veteran's hypertension is etiologically related to his service? Discuss the significance, if any, of a blood pressure reading of 140/90 at his March 17, 1970 discharge examination. (b) If the hypertension is found to be less likely than not directly related to his service, opine whether it is at least as likely as not that the hypertension was caused or aggravated (aggravation must be addressed, regardless of permanence) by the Veteran's service-connected PTSD? (c) Has the severity of the hypertension varied or has it remained essentially unchanged/and unimpacted by his service-connected PTSD? (d) If the opinion is that the Veteran's PTSD did not cause, but aggravated, his hypertension, identify (to the extent possible) the degree of disability due to such aggravation. (e) If the Veteran's PTSD did not cause or aggravate the hypertension, identify the etiology for the hypertension that is considered to be more likely (to the extent the record permits), and explain why that is so. If the more likely alternate etiology cannot be identified, explain why that is so. Detailed rationale should be included with all opinions. If an opinion sought cannot be provided without resort to mere speculation, there should be explanation why that is so. 4. Thereafter, arrange for a TBI protocol examination of the Veteran by a neurologist to determine whether he has any residuals of a TBI in service to specifically include a disability manifested by ear pain and dizziness. The Veteran's record (to include this remand and post-service treatment records (which note his reports of concussion during service) must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Does the Veteran have any residuals of a TBI sustained in service? If so, please describe all such residuals in detail. Indicate whether any symptoms or combination of symptoms found may be considered residuals of a brain injury in service. If a TBI is diagnosed, provide responses to (b) and (c). If a TBI is not diagnosed, provide responses to (b) and (d). (b) Does the Veteran have a disability manifested by ear pain and dizziness? If not, reconcile that finding with the notations of bilateral otalgia and other reports of ear pain and/or dizziness in the record (i.e., was it misdiagnosed, resolved since, etc.). (c) If a disability manifested by ear pain and dizziness is diagnosed, is it at least as likely as not (a 50% or better probability) that such disability arose during (was first manifested in, or is otherwise etiologically related to) the Veteran's active duty service, to include as being a residual of a TBI? (d) If a diagnosed disability manifested by ear pain and dizziness is found to be unrelated to a TBI, identify the etiology that is considered to be more likely. The examiner must explain the rationale for all opinions, with citation to supporting clinical data, as indicated and comment on the opinions already in the record outlined above (expressing agreement or disagreement with each, and explaining the rationale for the agreement or disagreement). 5. When the development sought above is completed, arrange for all further development necessary, and readjudicate the claim of entitlement to a TDIU rating prior to March 14, 2016. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.