Citation Nr: 21031726 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-12 468 DATE: May 24, 2021 REMANDED The issue of entitlement to service connection for joint and muscle pain (diagnosed primarily as cervical spine and lumbar spine disabilities) is remanded. The issue of entitlement to service connection for erectile dysfunction is remanded. The issue of entitlement to service for loss of balance and incoordination is remanded. The issue of entitlement to service connection for dizziness is remanded. The issue of entitlement to service connection for chills is remanded. The issue of entitlement to service connection for loss of hair on the legs is remanded. The issue of entitlement to service connection for foot pain is remanded. The issue of entitlement to service connection for chronic fatigue is remanded. The issue of entitlement to service connection for shortness of breath is remanded. The issue of entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, or as secondary to service-connected disability, is remanded. The issue of entitlement to service connection for an eye disability, claimed as blurred vision, is remanded. The issue of entitlement to compensation under 38 U.S.C. § 1151 for traumatic brain injury (TBI), incontinence, and other additional disability resulting from medical treatment at a VA facility is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to March 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal of January 2013 and July 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In July 2019, the Board denied entitlement service connection for joint and muscle pain (diagnosed primarily as cervical spine and lumbar spine disabilities) and entitlement to service connection for erectile dysfunction, loss of balance and incoordination, dizziness, chills, loss of hair on the legs, foot pain, chronic fatigue and shortness of breath. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a November 2020 Joint Motion for Remand (JMR), vacated the July 2019 Board decision, related to the above issues, and remanded the issues to the Board for readjudication. In July 2019, the Board remanded the claims of entitlement to service connection for sleep apnea and bilateral upper and lower extremity peripheral neuropathy for additional development. An October 2020 rating decision granted entitlement to service connection for bilateral upper and lower extremity polyneuropathy and sleep apnea. As this represents a total grant of the benefits sought on appeal with respect to these issues, they are no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). In addition, in July 2019 the Board remanded the issues of entitlement to service connection for hypertension, an eye disability, and compensation under 38 U.S.C. § 1151. The case has been returned to the Board for review. 1. Entitlement to service connection for joint and muscle pain is remanded. The Veteran is seeking entitlement to service connection for joint and muscle pain related to his head, neck, and spinal cord. Specifically, the Veteran states that he was injured during combat while serving in Vietnam. See, e.g., February 2021 correspondence. The parties to the November 2020 JMR agreed that the Board erred in application of 38 U.S.C. § 1154(b). Specifically, while the Board acknowledged diagnoses of cervical spine and low back disabilities, the Board erred in not affording the Veteran the presumption that his diagnosed disorders were incurred in service due to his status as a combat veteran. See 38 U.S.C. § 1154 (b); see also Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). Regarding the Veteran's claims for entitlement to service connection for joint and muscle pain, remand is required to provide the Veteran with a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination. Here, the Veteran's medical treatment records reflect that the Veteran has cervical spine and low back disabilities. Additionally, the Veteran's DD Form 214 reflects that he was awarded the combat action ribbon. As such, the Veteran can establish the incurrence of an injury in service by lay evidence of service incurrent, even though there is no official record of such in-service incurrence. Furthermore, the Veteran has reported that his cervical spine and low back disabilities were related to his combat. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination. 2. Entitlement to service connection for erectile dysfunction is remanded. 3. Entitlement to service for loss of balance and incoordination is remanded. 4. Entitlement to service connection for dizziness is remanded. 5. Entitlement to service connection for chills is remanded. 6. Entitlement to service connection for loss of hair on the legs is remanded. 7. Entitlement to service connection for foot pain is remanded. 8. Entitlement to service connection for chronic fatigue is remanded. 9. Entitlement to service connection for shortness of breath is remanded. The Veteran contends that his erectile dysfunction, loss of balance and incoordination, dizziness, chills, loss of hair on the legs, foot pain, chronic fatigue, and shortness of breath are secondary to his joint and muscle pain. Additionally, the parities to the November 2020 JMR agreed that the issues of erectile dysfunction, loss of balance and incoordination, dizziness, chills, loss of hair on the legs, foot pain, chronic fatigue, and shortness of breath are inextricably intertwined with the issue of entitlement to service connection for joint and muscle pain. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). 10. Entitlement to service connection for hypertension is remanded. The Veteran contends that he has hypertension that is directly related to his active service, or secondary to his service-connected disabilities. Specifically, the Veteran testified that his hypertension is due to exposure to herbicide agents during his active service, or secondary to his service-connected posttraumatic stress disorder (PTSD). The Veteran was provided a VA examination as to his hypertension in September 2020. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The VA examiner diagnosed the Veteran with hypertension and opined that the Veteran's hypertension is less likely than not related to his active service, to include his presumed exposure to herbicide agents. As rationale, the VA examiner merely explained that hypertension is not listed among conditions linked to herbicide exposure. The Board notes that the Veteran is presumed to have been exposed to herbicide agents during his active service. The Board further notes that the National Academy of Science (NAS) Institute of Medicine's Veterans and Agent Orange: Update 11 (2018) upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. On remand, the VA examiner must address this update. Additionally, a November 1974 treatment record contains a blood pressure reading of 120/80. Such reading meets the criteria for prehypertension, which is defined as moderately increased blood pressure with systolic pressure of 120 to 139 or a diastolic pressure of 80 to 89. See Dorland's Illustrated Medical Dictionary 1510 (32nd ed. 2012). On remand, the VA examiner should address the blood pressure readings during his active service. Finally, as noted above, the Veteran contends that his hypertension is secondary to his service-connected PTSD. The September 2020 VA examiner did not provide an opinion as to whether the Veteran's hypertension is caused by, or aggravated by, his service-connected PTSD. 11. Entitlement to service connection for an eye disability, claimed as blurred vision, is remanded. In its July 2019 remand, the Board directed the AOJ to provide the Veteran a VA examination to determine whether any current eye disability is etiologically related to his active service. The July 2019 remand further directed that the VA examiner address the Veteran's contention that he first experienced blurred vision during his active service. The Veteran was provided a VA examination related to his blurred vision in September 2020. The VA examiner diagnosed the Veteran with dry eye syndrome, pseudophakia, and macular degeneration and opined that the disabilities are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the VA examiner explained that the Veteran's records indicate that his current disabilities are related to age. However, the VA examiner did not address the Veteran's contention that he has had blurred vision since his active service as directed by the July 2019 Board remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). On remand the VA examiner must address the Veteran's report that he has suffered from blurred vision since his active service. 12. Entitlement to compensation under 38 U.S.C. § 1151 is remanded. The Veteran seeks entitlement to service connection for compensation under 38 U.S.C. § 1151. Specifically, the Veteran contends that in March 2010 he fell out of his wheelchair and hit his head after striking an uneven sidewalk at a VA facility. He further alleges that in January 2011, while being transported in a wheelchair van to a VA facility, his wheelchair broke free from its straps, causing him to fall inside the interior of the van. The Veteran contends that these two incidents caused additional disability and were the result of fault on the part of VA in furnishing medical care. In the July 2019 remand, the Board directed the RO to provide the Veteran a VA examination to identify all disability or additional disability caused by one or both incidents. The Veteran was provided a VA examination related to his claim in September 2020. The VA examiner opined that it is less likely as not that the Veteran's TBI was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in the provision of the medical treatment in question. As rationale, the VA examiner reported that the claimed accidents were not contemporaneously documented and that there are no records contemporaneously documented to support the diagnosis of TBI and/or residuals at the time of the alleged events. However, a review of the Veteran's VA treatment records reveal that he was treated in March 2011 after being injured while riding in a VA van. Additionally, the Veteran contemporaneously reported that these two incidents occurred. As the Veteran contemporaneously reported the incidents that occurred at VA, the Board finds they are reliable. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (finding statements made contemporaneous to events tend to be more reliable than statements made more remotely). As such, on remand, the VA examiner should address the March 2011 VA treatment record and the Veteran's contemporaneous statements that the incidents occurred. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any joint or muscle disability (diagnosed primarily as cervical spine and lumbar spine disabilities). Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is directed to accept that the Veteran injured his cervical spine and low back during combat in Vietnam. The examiner must address the following: (a.) Provide a diagnosis for any joint or muscle disability, to include disabilities of the cervical spine and low back demonstrated since service, found on current examination or in the record. (b.) For each diagnosed disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran's service or is otherwise etiologically related to the Veteran's service. 2. Forward the record and a copy of this remand to the examiner who conducted the September 2020 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is causally or etiologically related his active service, to include his presumed exposure to herbicide agents? Rationale must be provided for the opinion proffered. In rendering the requested rationale, the VA examiner should address the blood pressure readings in the prehypertension range contained in the Veteran's service treatment records. Consideration should also be given to the National Academy of Sciences, Engineering, and Medicine's (NAS) discussion of hypertension as an effect of Agent Orange exposure in Veterans and Agent Orange: Update 11 (2018), Washington, DC: The National Academies Press at pp. 487-498. The examiner must also note that the Veteran is not precluded from establishing service connection for hypertension with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is proximately due to or the result of his service-connected disabilities, to include his service-connected PTSD. Rationale must be provided for the opinion proffered. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was aggravated beyond natural progression by his service-connected disabilities, to include his service-connected PTSD. Rationale must be provided for the opinion proffered. 3. Forward the record and a copy of this remand to the examiner who conducted the September 2020 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any eye disability is related to his active service. In providing the opinion, the examiner should address the Veteran's contention that he has blurred vision, which he first experienced during service. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's traumatic brain injury (TBI), incontinence, and other additional disability, are at least as likely as not (50 percent probability or greater) proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or due to an event not reasonably foreseeable. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care proximately caused a veteran's additional disability, it must be shown that the hospital care caused the Veteran's additional disability and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. See 38 C.F.R. § 3.361 (d) (1). Whether the proximate cause of additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, the examiner should consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361 (d) (2). The VA examiner must address the Veteran's contemporaneous statements and VA treatment records that in March 2010 the Veteran fell from his wheelchair on a VA facility sidewalk or ramp and that in January 2011 he fell of his wheelchair while being transported in a wheelchair van. The VA examiner must further address the Veteran's contentions that he began to experience increased pain and incontinence following the two incidents. Additionally, the VA examiner must address the May 2014 neuropsychiatric evaluations stating the Veteran's neuropsychological profile was consistent with head injury and the May 2015 VA examination report suggesting the Veteran's March 2010 fall may have resulted in TBI. 5. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.