Citation Nr: 21040182 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-05 817 DATE: July 2, 2021 REMANDED Entitlement to service connection for a right lung disability, to include as secondary to service-connected left lower extremity chronic venous insufficiency and hypertension, is remanded. Entitlement to service connection for a right ankle disability, to include chronic venous insufficiency, and to include as secondary to service-connected left lower extremity chronic venous insufficiency and hypertension, is remanded. REASONS FOR REMAND The Veteran had active service from April 1960 to January 1981. He appealed December 2016 and May 2017 rating decisions by the Agency of Original Jurisdiction (AOJ). The Veteran's claims were remanded for additional development in November 2018 and November 2020. Unfortunately, another remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). Preliminarily, there appear to be outstanding treatment records. An August 2016 VA medical record noted the Veteran was followed by an outside primary care provider Dr. P.P. Moreover, the August 2016 record notes that the Veteran was diagnosed with a pulmonary embolism in April 2016, for which he was prescribed oxygen therapy. The Board observes there to be a gap in VA treatment from November 2008 to August 2016, suggesting the Veteran received medical care for his pulmonary embolism from a non-VA provider. Records from Dr. P.P. have not been associated with the claims file. Additionally, during the Veteran's September 2019 ankle examination he reported having ablation surgery on his right leg in February 2019. Records of this procedure do not appear in the claims file. Given these facts, the Veteran should be provided an opportunity to authorize the release of any non-VA medical records that may support his claims. 1. Right lung disability. The November 2020 remand directed that the Veteran be afforded a respiratory examination and that opinions be obtained regarding whether any right lung disability was related to service, or caused or aggravated by the Veteran's service-connected left lower extremity chronic venous insufficiency or hypertension. The February 2021 examiner noted a diagnosis of chronic obstructive pulmonary disease (COPD), which began in 2016 and for which the Veteran was receiving oxygen therapy. An opinion was obtained regarding COPD, but the examiner did not address the Veteran's diagnosed pulmonary embolism. As outstanding private treatment records may shed light on the Veteran's claimed disability, remand is warranted for a new opinion addressing that condition. The examiner also provided a secondary service connection opinion. However, the examiner's rationale was conclusory. Moreover, the rationale supporting the aggravation opinion was based on a review of service treatment records showing a lack of complaints regarding a respiratory disability while on active duty. As the examiner responded to the incorrect question regarding aggravation, the opinion is inadequate. Accordingly, remand for a new opinion is necessary. 2. Right ankle disability. The November 2020 remand also directed that an opinion be obtained regarding the Veteran's claimed right ankle disability. The AOJ provided the Veteran an ankle examination in February 2021, the report of which noted a diagnosis of ankle strain. However, the examiner also observed the presence of diffuse soft swelling of an unclear etiology, for which clinical correlation was recommended. The direct service connection opinion restated a September 2019 opinion, which observed that chronic swelling of the lower extremity would likely result in mild degenerative joint disease (DJD) noted on the Veteran's current ankle x-ray images, but that correlation to service could not be established in the absence of records indicating issues in service. The examiner then noted there was no history of trauma or injury of the ankle, and that venous insufficiency was not necessary the sole cause of DJD. A secondary service connection opinion was rendered by a different provider. That clinician found the Veteran's right ankle disability was not related to chronic venous insufficiency or hypertension as there was no medical pathophysiological relationship between the right ankle disability and the Veteran's service-connected venous insufficiency or hypertension. With respect to the aggravation opinion, however, the clinician responded to the incorrect aggravation question. As such, the opinion is inadequate for rating purposes. In rendering a new opinion, the clinician's attention is invited to a September 2019 VA venous insufficiency opinion from Dr. M.E., which explained that venous insufficiency occurred due to venous hypertension, which was normally due to valvular dysfunction or obstruction. The Board observes the Veteran is service-connected for hypertension. The matters are REMANDED for the following actions: 1. Obtain any updated relevant VA and/or private treatment records that have not already been obtained and associate the same with the claims file, including records from Dr. P.P. 2. After any outstanding records have been obtained, refer the claims file to an appropriately qualified clinician for preparation of a medical opinion regarding the Veteran's right lung disability. The entire claims file, including a copy of this remand, must be made available to the clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the reviewing clinician determines otherwise. The reviewing clinician is asked to identify all right lung disabilities diagnosed during the pendency of the appeal. For each right lung disability identified, the reviewing clinician is asked to respond to the following queries: (a.) Is it at least as likely as not that the disability was the result of an injury, disease, or event in service? (b.) Is it at least as likely as not that the disability was caused by his service-connected left lower extremity chronic venous insufficiency and/or hypertension? (c.) Is it at least as likely as not that the disability was aggravated by his service-connected left lower extremity chronic venous insufficiency and/or hypertension? For the purposes of this opinion, the reviewing clinician is to apply the proper aggravation standard, which is that any degree of worsening of a condition by a service-connected condition is sufficient to establish aggravation in this case. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After any outstanding records have been obtained, refer the claims file to an appropriately qualified clinician for preparation of a medical opinion regarding the Veteran's right ankle disability. The entire claims file, including a copy of this remand, must be made available to the reviewing clinician, and the reviewing clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the reviewing clinician determines otherwise. The reviewing clinician is asked to identify all right ankle disabilities diagnosed during the pendency of the appeal, to include sprain, degenerative joint disease, and chronic venous insufficiency. For each right ankle disability identified, the reviewing clinician is asked to respond to the following queries: (a.) Is it at least as likely as not that the disability was the result of an injury, disease, or event in service? (b.) Is it at least as likely as not that the disability was caused by his service-connected left lower extremity chronic venous insufficiency and/or hypertension? (c.) Is it at least as likely as not that the disability was aggravated by his service-connected left lower extremity chronic venous insufficiency and/or hypertension? The reviewing clinician's attention is invited to a September 2019 VA venous insufficiency opinion from Dr. M.E., which explained that venous insufficiency occurred due to venous hypertension, which was normally due to valvular dysfunction or obstruction. For the purposes of this opinion, the VA reviewing clinician is to apply the proper aggravation standard, which is that any degree of worsening of a condition by a service-connected condition is sufficient to establish aggravation in this case. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page) 4. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.