Citation Nr: 21031065 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-17 083A DATE: May 20, 2021 REMANDED Entitlement to a compensable evaluation for lumbar degenerative disc disease 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 a traumatic brain injury (TBI) and headaches is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) and a lung abcess is remanded. Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an adjustment disorder, is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2011 to August 2012, including in Afghanistan from May 2011 to December 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2015 and March 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2020. A transcript of the proceeding is of record. In a March 2021 correspondence, the Veteran waived Agency of Original Jurisdiction (AOJ) review of evidence submitted after the March 2017 Statement of the Case. In an August 2020 correspondence, the Veteran reported he was unable to work. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held that every claim for an increased evaluation includes a claim for a total disability evaluation based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevent him from working. Accordingly, the evidence of record raises a claim of entitlement to TDIU. The Board observes that the Veteran failed to attend several scheduled VA examinations. The Veteran testified in his May 2020 Board hearing he was homeless at the time and because the VA notices were sent to his former spouse's home, he was unaware of the exams. Increased Rating for Back Disability The Veteran contends he is entitled to a compensable rating for a back disability. In August 2020, the Veteran submitted a private assessment reflecting that his back disability has worsened from when the disability was previously evaluated. Given this evidence suggesting worsening symptoms and a lack of a VA examination, a remand for a VA examination to assess the current severity of the Veteran's back disability is warranted. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Right and Left Knee Disability The Veteran contends that he is entitled to service connection for right and left knee disabilities. In August 2020, he submitted a private opinion from a consultant diagnosing him with bilateral knee pain. The consultant opined that it was more likely than not related to service. However, the opinion is not adequate because it merely discusses in general terms that repetitive exercises and movements performed during military service is responsible for the Veteran's knee pain. The consultant does not discuss or address the Veteran's service treatment records, which do not document any knee pain or injury incurred during service, nor was there any indication the consultant reviewed the Veteran's service treatment records. Accordingly, a VA examination should be obtained to diagnose any right or left knee disability and to determine if any diagnosed knee disability is related to service. TBI and Headaches The Veteran contends that he is entitled to service connection for a TBI suffered during service and resulting headaches. The Veteran reported experiencing a TBI related to his service in Afghanistan, specifically that in 2011 during an ambush he hit his head while taking cover. He has reported headaches regularly occurring since the TBI. In August 2020, the Veteran submitted a questionnaire from a private consultant that diagnosed him with migraine headaches and discussed his injury in Afghanistan. However, the submitted questionnaire includes no discussion of the etiology of the Veteran's migraine headaches or a rationale linking them to his service. Accordingly, the Veteran should be afforded a VA examination to diagnose the Veteran with any TBI or headache disability and to determine the etiology of any diagnosed disability. Hearing Loss In May 2019, the Veteran was afforded a VA audiological examination to assess his reported hearing loss and tinnitus. The VA examiner diagnosed the Veteran with tinnitus and bilateral hearing loss. The examiner reported the Veteran was exposed to noise including small arms fire, grenades, mortars, and high caliber weapons. The examiner opined that while the Veteran's excessive noise exposure in service likely resulted in his tinnitus, the examiner opined it was less likely than not that the Veteran's hearing loss was related to service. The basis for this opinion was the Veteran's 2010 enlistment examination reflected significant hearing loss and no significant threshold shift occurred during service that would reflect aggravation. However, the examiner did not address the Veteran's conceded noise exposure in service. Accordingly, an addendum opinion specifically addressing any potential etiological relationship between the Veteran's diagnosed hearing loss and to his noise exposure during service. Respiratory Disorder The Veteran submitted an August 2020 questionnaire completed using a VA Form completed by private Certified Nurse Practitioner diagnosing the Veteran with asthma, emphysema, and a lung abcess. The private consultant opined that exposure to burn pits during service are responsible for these conditions. The medical records reflect various diagnosed respiratory conditions and cite risk factors including the Veteran's tobacco use and family history of lung disease. The consultant failed to address these findings in the medical records and the opinion is inadequate. Accordingly, the Veteran should be afforded a VA examination to diagnose any respiratory conditions and to determine any relationship with the Veteran's service. Acquired Psychiatric Disorder The Veteran submitted a psychiatric questionnaire in July 2019. The consultant opined that the Veteran was diagnosed with a depressive disorder due to his service-connected degenerative disc disease. The consultant opined the Veteran was permanently disabled. No rationale was provided in support of the relationship between the Veteran's degenerative disc disease, presently rated as 0 percent disabling, and a psychiatric disorder. Accordingly, a VA psychiatric examination should be obtained to determine the etiology of any diagnosed mental disorders, to include PTSD. TDIU The Veteran's TDIU claim is inextricably intertwined with the remanded claims. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). As such, the adjudication of that issue is deferred. The matters are REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. Request that the Veteran file an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) detailing his complete and accurate work history and income information, including self-employment and any other information regarding full-time or part-time employment or attempts to obtain employment. The Veteran is advised to complete the entire form. 3. After any additional records are associated with the claims file, Veteran should be scheduled for VA examinations to assess the current severity of his service-connected lumbar degenerative disc disease. The electronic claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. Upon examination of the record and the Veteran, the examiner should address the following: (a.) The examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. (b.) The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability. The examiner should identify the degree of any additional range of motion loss due to pain on use or during flare-ups. If the Veteran reports flare-ups but the examination is not conducted during a flare-up, appropriate information should be solicited from the Veteran in order to attempt to estimate any additional impairment during flare-ups. (c.) The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. Schedule the Veteran for an examination to determine the nature and etiology of any right and/or left knee disability. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any current knee disability is related to an in-service injury, event, or disease. 5. Schedule an examination to determine the nature and etiology of any diagnosed TBI and/or headaches. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed TBI was incurred in or due to the Veteran's service. The Veteran's lay statements, including regarding injury during service in Afghanistan should be addressed. Regarding the Veteran's headaches, the examiner must opine whether any diagnosed headache disorder is at least as likely as not (50 percent or greater probability) related to service. The examiner should address if the Veteran's headaches are proximately caused or aggravated by his service-connected tinnitus. 6. Obtain an addendum opinion regarding the etiology of the Veteran's hearing loss. The medical expert should opine if at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed hearing loss is related to service. The opinion should specifically address the Veteran's conceded noise exposure during service and discuss any potential relationship between that noise exposure and his current hearing loss disability. 7. Schedule the Veteran for an examination to determine the nature and etiology of any diagnosed respiratory conditions, to include COPD and a lung abcess. The examiner must opine whether any of the Veteran's current respiratory conditions are at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include claimed exposure to burn pits in Afghanistan. 8. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any current acquired psychiatric disorder, to include PTSD. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disorder is related to an in-service injury, event, or disease. The examiner must opine on whether it is at least as likely as not that any current psychiatric disorder was (1) caused by or (2) aggravated by service-connected lumbar degenerative disc disease, to include pain. 9. A complete rationale should be provided for all opinions. The Veteran's lay contentions, as well as any private medical opinions, should be addressed and discussed. 10. After development above has been completed, readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Keogh, 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.