Citation Nr: 21040469 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-56 219 DATE: July 3, 2021 REMANDED Entitlement to service connection for hand tremors, to include as secondary to medications prescribed for service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a left renal cyst, to include as secondary to service-connected diabetes mellitus, type II, is remanded. Entitlement to a compensable rating for bilateral sensorineural hearing loss is remanded. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, right lower extremity is remanded. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to April 1972. These matters come before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claims of entitlement to service connection for left renal cyst, service connection for hand tremors, increased rating for bilateral hearing loss, increased rating for peripheral neuropathy of the right lower extremity, increased rating for peripheral neuropathy of the left lower extremity, and entitlement to a TDIU. He perfected a timely appeal to that decision. In his substantive appeal (VA Form 9), dated in November 2016, the Veteran requested a videoconference hearing. However, in a statement dated in January 2019, the Veteran withdrew his request for a hearing. 1. Entitlement to service connection for hand tremors, to include as secondary to medications prescribed for service connected PTSD, is remanded. The Veteran contends that he developed hand tremors as a result of exposure to herbicide agents while on active duty in Vietnam. Alternatively, the Veteran has also argued that he has developed hand tremors secondary to medications prescribed for his service-connected PTSD. The Veteran was afforded a VA examination of the central nervous system in April 2014. At that time, the Veteran indicated that he was taking Citalopram for PTSD and that he noticed the hand tremors started in 2011. The neurological examination was normal and the examiner stated that there was insufficient evidence to warrant or confirm a current diagnosis of an acute or chronic condition or its residuals. The examiner further stated that no medical could be rendered as no condition was diagnosed; she noted that there was no objective finding of the claimed condition during the physical examination. However, a review of the Veteran's VA treatment records reflects complaints and diagnoses of tremor. Specifically, during a clinical visit in May 2010, the Veteran indicated that he had been taking Citalopram at bedtime which stops the nightmares and help him sleep relatively well but seemed to be the cause of a mild hand tremor. Following a neurological consultation in November 2014, the Veteran was diagnosed with intermittent action tremor. Subsequently, during neurological evaluation in July 2015, the Veteran described the presence of a tremor in his right arm which has been present over the past five to 10 years. It was also noted that he retired in 2012 due to his tremor and confrontational issues with supervisors. The pertinent diagnoses were unspecified persistent mental disorder due to conditions, and essential and other unspecified forms of tremor. An October 2015 neurology note reflects an assessment of intermittent action tremor. There is conflicting evidence in the record as to whether the Veteran has a current disability characterized by hand tremors. The Veteran should be afforded a VA examination to determine if he has a current chronic disability manifested by hand tremors. If such disability is found on examination, the VA examiner should provide a medical opinion addressing whether the Veteran's hand tremors are etiologically related to his service-connected PTSD and associated mediations. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for left renal cyst, to include as secondary to service connected diabetes mellitus, type II, is remanded. The Veteran contends that he is entitled to service connection for a left renal cyst as due to in-service exposure to herbicides agents or a secondary to service-connected diabetes mellitus. The Veteran was afforded a VA examination in April 2014. The examiner determined that there was insufficient evidence to warrant or confirm a current diagnosis of an acute or chronic bladder cyst condition or its residuals. The examiner noted that a recent computed tomography (CT) scan was silent for a cyst in the bladder. The examiner opined that the claimed left renal cyst was less likely than not caused by or related to the service-connected diabetes mellitus, type II. The rationale was that there was no medical nexus between diabetes mellitus and renal cysts. However, the April 2014 examination report is inadequate for rating purposes as it does not include adequate rationale and does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner's determination that the disease or injury at issue is not "related to" the service-connected condition is not sufficient to address the aggravation issue. Id. In addition, direct service connection was not addressed. On remand, an addendum opinion should be obtained that addresses secondary aggravation and direct service connection. 3. Entitlement to a compensable rating for bilateral sensorineural hearing loss is remanded. The Veteran asserts that he is entitled to a compensable rating for bilateral sensorineural hearing loss. The Board notes that the Veteran was most recently provided a VA audiology examination in April 2014. Since that time, the record suggests a possible worsening of symptomology. The Board further notes that a January 2015 VA audiological note indicates the Veteran was issued new hearing aids. Thus, after considering the medical evidence and in light of the amount of time since the last VA examination and the possible increase in severity, the Board finds a remand is necessary in order to afford him a new examination that adequately addresses the current severity of his bilateral sensorineural hearing loss. See Palczewski v. Nicholson, 21 Vet. App 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). 4. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, right lower extremity is remanded. 5. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, left lower extremity is remanded. The Veteran contends that his peripheral neuropathy of the right and left lower extremities is more disabling than reflected by the ratings currently assigned. The Board notes that the most recent VA examination to evaluate the Veteran's service-connected peripheral neuropathy was conducted in April 2014. The mere passage of time does not render an old examination inadequate. However, in the present case, the Veteran's attorney has argued that the examination is inadequate because the examiner did not conduct electromyography (EMG) testing. In addition, the VA examiners did not provide an assessment as to the severity of the peripheral neuropathy of each extremity in terms of mild, moderate, or severe. See 38 C.F.R. § 4.124a. As the VA examinations did not provide all of the information necessary to properly rate the Veteran's service-connected peripheral neuropathy the lower extremities, the Board finds the exams to be inadequate. Accordingly, a new VA examination should be provided. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, supra. 6. Entitlement to a TDIU is remanded. The Board notes that the Veteran has claimed that he is unable to obtain and maintain gainful employment due to his service connected PTSD, diabetes mellitus type II and neuropathy in his legs. See November 2016 Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The Board also notes that the issue of entitlement to TDIU is inextricably intertwined with the service connection and increased rating claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final disposition of those claims. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the claims file, to include a copy of this remand, to an appropriate VA examiner for opinion as to the nature and etiology of the Veteran's claimed hand tremors. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) Identify all current disorders characterized by hand tremors that have been found to be present at any time since January 2013. The examiner should specifically indicate whether the Veteran's hand tremors constitute diabetic neuropathy. (B) For each hand tremor disorder diagnosed, is it at least as likely as not (50 percent probability or greater) that the such had its onset in service or is otherwise etiologically related to service, to include herbicide agent exposure during service? (C) For each hand tremor disorder diagnosed, is it at least as likely as not (50 percent probability or greater) that it is caused or aggravated by service connected PTSD? The examiner should specially address the Veteran's contention that his hand tremors are a side effect of medication prescribed for PTSD. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, forward the claims file, to include a copy of this remand, to an appropriate VA examiner for opinion as to the nature and etiology of the Veteran's claimed left renal cyst. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) For each diagnosed left renal cyst, is it at least as likely as not (50 percent probability or greater) that the such had its onset in service or is otherwise etiologically related to service, to include herbicide agent exposure during service? (B) For each diagnosed left renal cyst, is it at least as likely as not (50 percent probability or greater) that it is caused or aggravated by service connected diabetes mellitus type II? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Following the receipt of outstanding records, schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral sensorineural hearing loss. The claims folder and a copy of this Remand must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The findings of Puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz, must be numerically reported, and speech recognition percentage results derived using the Maryland CNC word list. The examiner must also specifically address the effect of the Veteran's hearing loss on his occupational functioning and daily activities and inquire as to the situations in which his hearing loss causes the greatest difficulty. The VA examiner should clearly outline the rationale for any opinion expressed. If any requested medical opinion cannot be given, the VA examiner should state the reason why. 5. Following the receipt of outstanding records, schedule the Veteran for a VA examination to evaluate the current nature and severity of the service-connected neuropathy of the left and right lower extremities. The claims folder and a copy of this Remand must be made available to and reviewed by the examiner. The examiner should undertake any evaluation and/or testing including EMG and nerve conduction studies if deemed necessary. The VA examiner should report all current neurologic manifestations and must specifically state whether any neurologic manifestations found results in complete or incomplete paralysis of any nerve. The specific nerves involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis and resulting functional impairment is best characterized as mild, moderate, moderately severe, or severe. The VA examiner should clearly outline the rationale for any opinion expressed. If any requested medical opinion cannot be given, the VA examiner should state the reason why. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.