Citation Nr: 21031151 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-64 083 DATE: May 20, 2021 REMANDED Whether the reduction of a disability rating for thoracolumbar degenerative joint and disc disease with osteomalacia from 20 percent to 10 percent, effective July 15, 2014, was proper is remanded. Whether the reduction of a disability rating for left leg radiculopathy from 10 percent to 0 percent, effective July 15, 2014, was proper is remanded. Entitlement to service connection for fatigue and memory loss, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for a gastrointestinal disability, to include anastomosis ulcer, claimed as due to an undiagnosed illness, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1980 to October 2000. The matter comes on appeal from an August 2014 rating decision. The Veteran testified at a February 2021 virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. 1. Whether the reduction of a disability rating for thoracolumbar degenerative joint and disc disease and left leg radiculopathy was proper During the February 2021 hearing, the Veteran identified outstanding relevant treatment records from Evans Army Hospital dated from 2014 to present in support of his appeal. The Board finds that a remand is required to obtain the identifed records. The Veteran contends that his rating reductions were not warranted, and that the July 2014 VA spine examination upon which his reductions were based did not adequately consider his reports of numbness, tingling, loss of sensation, and pain in the left leg. He also contends that the examiner did not adequately consider painful motion in the thoracolumbar spine and assisted him with range of motion past the point of pain. The Board finds that a remand for a new VA examination is warranted to address the current severity of his thoracolumbar spine disability and left leg radiculopathy. 2. Entitlement to service connection for fatigue and memory loss, to include as due to an undiagnosed illness, is remanded. A July 2014 VA mental disorders examination diagnosed the Veteran with insomnia disorder, more likely than not related to cervical strain. In hearing testimony, the Veteran and his representative contend that the Veteran experiences fatigue in relation to service-connected sleep apnea and his back disability. Accordingly, a remand for an addendum opinion is warranted to address whether diagnosed insomnia is aggravated by service-connected sleep apnea and a service-connected thoracolumbar spine disability. 3. Entitlement to service connection for a gastrointestinal disability, to include anastomosis ulcer, claimed as due to an undiagnosed illness is remanded. The Veteran was afforded VA intestinal conditions and VA Gulf War examinations in July 2014. The examinations did not address a diagnosis of gastroesophageal reflux disorder (GERD) shown in VA treatment records, or findings related to GERD in service. The July 2014 VA intestinal conditions examination diagnosed an anastomosis ulcer secondary to bariatric surgery for obesity. The Veteran contends in hearing testimony that he had bariatric surgery due to obesity which he claims was caused by his service-connected coronary artery disease. Significantly, VA's General Counsel has held that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017 (Jan. 6, 2017). In order to establish service connection on this basis, three criteria must be met: (1) the service-connected disease or injury must have caused the veteran to become obese; (2) the obesity as a result of the service connected disability must be a substantial factor in causing the disability for which service connection is sought; and (3) whether the disability for which service connection is sought would not have occurred but for obesity caused by the service connected disease or injury. The Board finds that a remand for a supplemental VA examination and opinion is warranted to address the diagnosis of GERD and to address whether an anastomosis ulcer was secondary to obesity, and whether coronary artery disease caused the Veteran to be obese. The matters are REMANDED for the following action: 1. Obtain the Veteran's federal medical records from Evans Army Hospital dated from 2014 to present. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected thoracolumbar spine disability and left leg radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In so doing, the examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 3. Obtain an addendum opinion from an appropriate clinician regarding whether insomnia disorder (diagnosed during the July 2014 VA mental health examination) is at least as likely as not proximately due to/aggravated beyond its natural progression by service-connected sleep apnea and/or a thoracolumbar spine disability. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's GERD, shown in VA treatment records, is at least as likely as not related to findings related to GERD shown in service in April 2000. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's contention that an anastomosis ulcer, secondary to bariatric surgery, was due to obesity caused by service-connected coronary artery disease. The examiner shall answer the following questions in the report: a. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected coronary artery disease caused him to become obese? b. Is it at least as likely as not that the Veteran's anastomosis ulcer would not have occurred but for bariatric surgery for obesity caused by his service-connected coronary artery disease? A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. If the examiner is unable to provide a requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.