Citation Nr: 21031771 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-24 891 DATE: May 24, 2021 REMANDED The issue of entitlement to a disability rating in excess of 30 percent for degenerative disc disease of the lumbar spine is remanded. The issue of entitlement to a disability rating in excess of 30 percent for residuals of a fracture to the distal end of the right tibia and fibula with traumatic arthritis is remanded. The issue of entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus and/or Parkinson's disease, is remanded. The issue of entitlement to service connection for atrial fibrillation, to include as secondary to type II diabetes mellitus and/or Parkinson's disease, is remanded. The issue of entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to Parkinson's disease, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1959 to July 1963 and from February 1964 to September 1988. These matters come to the Board of Veterans' Appeals (Board) on appeal from February 2012 and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction is currently with the RO in Boise, Idaho. These matters were previously before the Board at which times they were remanded for further development. 1. Entitlement to a disability rating in excess of 30 percent for degenerative disc disease of the lumbar spine is remanded. 2. Entitlement to a disability rating in excess of 30 percent for residuals of a fracture to the distal end of the right tibia and fibula with traumatic arthritis is remanded. The Veteran contends that his degenerative disc disease of the lumbar spine and residuals of a fracture to the distal end of the right tibia and fibula with traumatic arthritis are more severe than the 30 percent ratings currently assigned. In February 2020 the Board remanded the Veteran's claims for adequate VA examinations. Specifically, the Board found that the VA Back (Thoracolumbar Spine) Examination of record was inadequate because it did not contain the necessary findings regarding active motion, passive motion, weight-bearing, and non-weight-bearing testing of the spine. See Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the Board found the VA Ankle Examination of record inadequate in that the examiner noted that there was pain on range of motion but did not indicate at which degree pain began or whether such pain caused functional impairment comparable to ankylosis. Pursuant to the February 2020 Board remand directives, the Veteran was scheduled for an additional VA Back (Thoracolumbar Spine) Examination and VA Ankle Examination, however, the VA examiner indicated that she was unable to evaluate the Veteran due to unavailability of lifting equipment to get the Veteran out of the wheelchair and body position in the wheelchair. Additionally, she indicated that the Veteran could not cooperate with requests due to advanced dementia/Parkinson's disease. In light of the foregoing, the Board finds that an additional remand is necessary to obtain addendum opinions, based on file review only, as the VA Back (Thoracolumbar Spine) examination and VA Ankle examination of record are still inadequate for adjudicative purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 3. Entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus and/or Parkinson's disease, is remanded. The Veteran contends that he has hypertension secondary to: (1) chronic pain related to his service-connected disabilities; (2) service-connected type II diabetes mellitus, Parkinson's disease, and/or major depressive disorder; or (3) medications for service-connected conditions. Alternately, the Veteran contends that his hypertension first manifested during service in the form of elevated blood pressure. In this regard, the evidence of record includes an August 2015 VA Hypertension Examination Report in which the examiner opined that it was less likely than not that the Veteran's hypertension was caused by or proximately due to type II diabetes mellitus or Parkinson's disease. The examiner reasoned that hypertension pre-existed those conditions and the Veteran was negative for kidney disease. In a July 2020 VA Examination Report an examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service-injury, event, or illness. The examiner reasoned that the Veteran's service treatment records (STRs) were reviewed and the Veteran was diagnosed with hypertension in 2001, 15 years after leaving active service. The examiner also opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition and less likely as not aggravated beyond its natural progression by the Veteran's service-connected condition. The examiner reasoned that the Veteran's STRs were reviewed and as noted in 2015, there is no medical nexus; blood pressure readings from 2015 to present do not indicate hypertension, or hypertension controlled. The Board finds the August 2015 and July 2020 VA examinations inadequate to decide the Veteran's claim for service connection for hypertension. First, the July 2020 VA examiner indicated that the Veteran's blood pressure reading from 2015 to present did not indicate hypertension, or hypertension controlled. However, the August 2015 examiner indicated good control of hypertension with medication. Second, the examiners did not address the Veteran's contentions that he has hypertension secondary to chronic pain related to his service-connected disabilities, service-connected major depressive disorder, and/or medications for service-connected disabilities; or his contention that his hypertension first manifested during service in the form of elevated blood pressure readings. The Board notes that the Veteran submitted articles regarding the increased prevalence of clinical hypertension in patients with chronic pain compared to non-pain general medical patients and the Veteran has reported chronic pain related to his service-connected Parkinson's disease, degenerative disc disease of the lumbar spine, and residuals of a fracture to the distal end of the right tibia and fibula with traumatic arthritis. The Board also notes that the Veteran is service connected for major depressive disorder and the Veteran's STRs document elevated blood pressure readings. Therefore, an addendum opinion addressing these contentions should be obtained on remand. See Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 4. Entitlement to service connection for atrial fibrillation, to include as secondary to type II diabetes mellitus and/or Parkinson's disease, is remanded. The Veteran contends that he has atrial fibrillation secondary to service-connected type II diabetes and/or Parkinson's disease. Alternately, the Veteran contends that he has atrial fibrillation as a result of in-service herbicide exposure, including Agent Orange. In this regard, the evidence of record includes an August 2015 VA Heart Conditions Examination Report in which the examiner opined that the Veteran's atrial fibrillation was less likely than not caused by or proximately due to type II diabetes mellitus or Parkinson's disease. The examiner reasoned that there was no medical nexus. In a July 2020 VA Examination Report the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's STRs were reviewed and the Veteran had no cardiac complaints noted; the Veteran developed atrial fibrillation 15 years after leaving service. The examiner also opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition and less likely than not aggravated beyond its natural progression by service-connected condition. The examiner reasoned that the Veteran's STRs were reviewed and, as noted in the 2015 evaluation, there was no medical nexus between atrial fibrillation and Parkinson's disease or type II diabetes mellitus. The Board finds the August 2015 and July 2020 VA examinations inadequate to decide the Veteran's claim for service connection for atrial fibrillation. First, the examiner opined that there was no medical nexus between the Veteran's atrial fibrillation and service-connected type II diabetes mellitus. However, the Board notes that the Veteran submitted an article which suggests that an association between atrial fibrillation and type II diabetes mellitus has been proven. Second, the examiners did not address the Veteran's contention that he has atrial fibrillation secondary to in-service herbicide exposure including Agent Orange. The Board notes that the Veteran served in the Republic of Vietnam (Vietnam) and his herbicide exposure has been conceded. Third, with regard to secondary service connection (causation and aggravation), the examiner essentially repeated the same rationale found inadequate by the Board in its previous remand. Therefore, an addendum opinion addressing should be obtained on remand. See Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 5. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to Parkinson's disease, is remanded. The Veteran contends that he has GERD secondary to: (1) chronic pain related to his service-connected disabilities; (2) service-connected type II diabetes mellitus, Parkinson's disease, and/or major depressive disorder; or (3) medications for service-connected conditions. Alternately, the Veteran contends that he has GERD directly related to service. In this regard, the evidence of record includes an August 2015 VA Esophageal Conditions Examination Report in which the examiner opined that it was less likely than not that the Veteran's GERD was caused by or proximately due to Parkinson's disease. The examiner reasoned that there was no medical nexus, no functional limitations. The reflux symptoms are more likely due to the hiatal hernia. In a July 2020 VA Examination Report an examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition and less likely as not aggravated beyond its natural progression by the Veteran's service-connected condition. The examiner reasoned that the Veteran's STRs were reviewed and per the 2015 evaluation, the Veteran's GERD is likely due to the hiatal hernia. The Board finds the August 2015 and July 2020 VA examinations inadequate to decide the Veteran's claim for service connection for GERD. First, the examiners did not address the Veteran's contentions that he has GERD secondary to chronic pain related to his service-connected disabilities, his service-connected type II diabetes mellitus, major depressive disorder, and/or medications for service-connected disabilities. The Board notes that the Veteran is service connected for type II diabetes mellitus and major depressive disorder. The Veteran has also reported chronic pain related to his service-connected Parkinson's disease, degenerative disc disease of the lumbar spine, and residuals of a fracture to the distal end of the right tibia and fibula with traumatic arthritis. Second, the examiner essentially repeated the same rationale for his opinions found inadequate by the Board in its previous remand. Therefore, an addendum opinion should be obtained on remand. See Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Forward a copy of this remand to a qualified examiner for the purpose of obtaining an opinion, including a retrospective opinion (based on file review only). (a.) Please provide an opinion regarding the functional effects of flare-ups of the Veteran's service-connected degenerative disc disease of the lumbar spine, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up range of motion was additionally limited to 30 degrees or less (the measurement required for the next higher rating). Please explain why or why not. Please estimate functional loss that occurred during flare-ups, using information procured from relevant sources of record in addition to examination reports, including lay statements from Veteran. (b.) State whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time additionally limited motion to 30 degrees or less. Please explain why or why not. (c.) Provide an opinion (based on file review only) regarding the adequacy of the back range of motion (ROM) testing conducted on prior physical examinations. On each examination during which ROM was not tested on passive ROM and/or in weight-bearing/non-weight-bearing conditions, the examiner should state whether, despite such tests not having been conducted, all testing required to adequately assess the Veteran's pain on motion was completed. Please explain why or why not. (d.) In determining whether all testing required to adequately assess the Veteran's pain on motion was completed on prior VA examination, the examiner should specify which range of motion tests (passive vs. active) were not previously conducted, and whether the testing conducted previously was done in weight-bearing or non-weight-bearing conditions. The examiner should also state whether there is any structural abnormality of the involved joint, such that passive range of motion in this case would be more limited than active, and, if testing was conducted only in weight-bearing conditions, whether testing in weight-bearing conditions is more demonstrative of the degree of pathology in the Veteran's case. The examiner should also indicate if testing was previously conducted only in non-weight-bearing conditions. (e.) **If, and only if, the examiner determines that all medically required testing was not conducted, the examiner should also attempt to provide retrospective assessments of what the likely ranges of motion would have measured on each prior examination, had ROM been tested in (1) passive motion, (2) in weight-bearing, and (3) in non-weight-bearing. If this assessment is not feasible, please clearly explain why that is so. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 3. Forward a copy of this remand to a qualified examiner for the purpose of obtaining an opinion, including a retrospective opinion (based on file review only). (a.) State whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time resulted in functional impairment comparable to ankylosis of the ankle in plantar flexion at more than 40 degrees or, in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. Please explain why or why not. (b.) Provide an opinion (based on file review only) regarding the adequacy of the ankle range of motion (ROM) testing conducted on prior physical examinations. On each examination during which ROM was not tested on passive ROM and/or in weight-bearing/non-weight-bearing conditions, the examiner should state whether, despite such tests not having been conducted, all testing required to adequately assess the Veteran's pain on motion was completed. Please explain why or why not. (c.) In determining whether all testing required to adequately assess the Veteran's pain on motion was completed on prior VA examination, the examiner should specify which range of motion tests (passive vs. active) were not previously conducted, and whether the testing conducted previously was done in weight-bearing or non-weight-bearing conditions. The examiner should also state whether there is any structural abnormality of the involved joint, such that passive range of motion in this case would be more limited than active, and, if testing was conducted only in weight-bearing conditions, whether testing in weight-bearing conditions is more demonstrative of the degree of pathology in the Veteran's case. The examiner should also indicate if testing was previously conducted only in non-weight-bearing conditions. (d.) **If, and only if, the examiner determines that all medically required testing was not conducted, the examiner should also attempt to provide retrospective assessments of what the likely ranges of motion would have measured on each prior examination, had ROM been tested in (1) passive motion, (2) in weight-bearing, and (3) in non-weight-bearing. If this assessment is not feasible, please clearly explain why that is so. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. Send the claims file to an appropriate examiner to determine the nature and etiology of the Veteran's hypertension. Review of the file should be noted in the requested report and the examiner should record the full history of the identified disability. Following review of the claims file, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the diagnosed hypertension had its onset during active service, or within one year of the Veteran's separation from active service, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran's contention that his hypertension first manifested during service in the form of elevated blood pressure readings. (b.) Is it at least as likely as not that the diagnosed hypertension was caused or aggravated (permanently worsened beyond normal progression) by the Veteran's chronic pain related to his service-connected disabilities; service-connected type II diabetes mellitus; service-connected major depressive disorder; and/or medications for service-connected conditions? The examiner is asked to specifically discuss the articles regarding the increased prevalence of clinical hypertension in patients with chronic pain compared to non-pain general medical patients. (c.) If the examiner finds that hypertension has been permanently worsened beyond normal progression (aggravated) by the Veteran's chronic pain related to his service-connected disabilities; service-connected type II diabetes mellitus; service-connected major depressive disorder; and/or medications for service-connected conditions, the examiner should attempt to quantify the degree of aggravation beyond the baseline level attributed to the service-connected disability/disabilities. (d.) If the Veteran does not have hypertension related to service, what is the etiology of his condition? Please explain. (e.) All findings and conclusions should be supported with a complete rationale which reflects the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 5. Send the claims file to an appropriate examiner to determine the nature and etiology of the Veteran's atrial fibrillation. Review of the file should be noted in the requested report and the examiner should record the full history of the identified disability. Following review of the claims file, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the diagnosed atrial fibrillation had its onset during active service, or within one year of the Veteran's separation from active service, or is otherwise related to service, to include exposure to herbicides, including Agent Orange? The examiner is asked to specifically discuss the Veteran's contention that he has atrial fibrillation as a result of exposure to herbicides, including Agent Orange. Please note that the Veteran's herbicide exposure has been conceded. (b.) Is it at least as likely as not that the diagnosed atrial fibrillation was caused or aggravated (permanently worsened beyond normal progression) by the Veteran's service-connected type II diabetes mellitus and/or Parkinson's disease? The examiner is asked to specifically discuss the article which suggests that an association between atrial fibrillation and type II diabetes mellitus has been proven. (c.) If the examiner finds that the atrial fibrillation has been permanently worsened beyond normal progression (aggravated) by the Veteran's service-connected type II diabetes mellitus and/or Parkinson's disease, the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to the service-connected type II diabetes mellitus and/or Parkinson's disease. (d.) If the Veteran does not have atrial fibrillation related to service, what is the etiology of his condition? Please explain. (e.) All findings and conclusions should be supported with a complete rationale which reflects the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 6. Send the claims file to an appropriate examiner to determine the nature and etiology of the Veteran's GERD. Review of the file should be noted in the requested report and the examiner should record the full history of the identified disability. Following review of the claims file, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the diagnosed GERD had its onset during active service, or within one year of the Veteran's separation from active service, or is otherwise related to service? (b.) Is it at least as likely as not that the diagnosed GERD was caused or aggravated (permanently worsened beyond normal progression) by the Veteran's chronic pain related to his service-connected disabilities; service-connected type II diabetes mellitus; service-connected Parkinson's disease; service-connected major depressive disorder; and/or medications for service-connected conditions? (c.) If the examiner finds that the GERD has been permanently worsened beyond normal progression (aggravated) by the Veteran's chronic pain related to his service-connected disabilities; service-connected type II diabetes mellitus; service-connected Parkinson's disease; service-connected major depressive disorder; and/or medications for service-connected conditions, the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to it. (d.) If the Veteran does not have GERD related to service, what is the etiology of his condition? Please explain. Please provide a rationale regarding prior opinions finding that GERD is more likely than not related to hiatal hernia. (e.) All findings and conclusions should be supported with a complete rationale which reflects the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.