Citation Nr: 21042510 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-00 222A DATE: July 13, 2021 ISSUES 1. Entitlement to service connection for a right foot disability, claimed as right foot arch trauma. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a cerebrovascular accident, claimed as secondary to hypertension. REMANDED Entitlement to service connection for a right foot disability, claimed as right foot arch trauma is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a cerebrovascular accident, claimed as secondary to hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1976 to December 1978. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. An October 2017 rating decision granted service connection for lumbosacral strain, degenerative joint disease, degenerative disc disease of the lumbar spine, claimed as lower back strain. Next, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2018. A copy of the hearing transcript has been associated with the claims file. In March 2019, the Board remanded the issues for additional development. A May 2019 rating decision granted service connection for left and right great toe ingrown toenail removal residuals, in addition to special monthly compensation (SMC). Next, a March 2020 Board decision denied the service connection issues on appeal. Recently, a February 2021 Order from the United States Court of Appeals for Veterans Claims (Court) granted a February 2021 Joint Motion for Remand (JMR) with respect to these issues currently before the Board. Appeals counsel submitted a Rule 33 Summary of Issues (Brief). Appeals counsel called for remands for additional development based upon allegedly inadequate VA examinations relied upon in the prior Board decision. For all issues, the Board observes that the February 2021 Brief begins with a discussion of the duty to assist. It reads in the first line, "First, the Board clearly erred when it failed to ensure that VA obtained an adequate VA exam to determine the nature of the Appellant's right foot condition." Counsel raises similar arguments for other issues on pages 5 and 6. As a threshold consideration, the February 2020 Informal Hearing Presentation (IHP) from one year earlier is devoid of any requests for imaging, new VA examinations, or other challenges based upon the duty to assist. In fact, it largely relies on a consideration of lay evidence, "The Veteran highlighted that August 1978 STRs are consistent with his lay history." There is no discussion of x-rays, as raised by appeals counsel only after the Board decision. The Board had carefully considered the hearing testimony and IHP, highlighting: The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Nevertheless, pursuant to the JMR, the Court vacated the prior Board decision with respect to these three issues and remanded the matters for additional development. This is discussed further below with respect to each issue. 1. Entitlement to service connection for a right foot disability, claimed as right foot arch trauma is remanded. The Board incorporates its discussion from the sections above by reference. By way of background, a Service Treatment Record (STR) from after August 3, 1978, but before August 28, 1978 for an unrelated matter shows notations of glass in the arch of the right foot. It was painful upon palpitation. A probe was done but the glass could not be removed. The December 1978 Report of Medical Examination from separation disclosed a clinically normal evaluation of the feet, upper extremities, lower extremities, and spine, other musculoskeletal system. The Veteran perfected his appeals in January 2016. Related to the right foot, the VA Form 9 shows that the Veteran has chronic pain in his foot because of the stress on his arch. There was constant running and marching in service. This is chronically painful. At the August 2018 hearing, the Veteran provided additional lay evidence regarding a foot that allegedly has glass in it that was difficult to remove. He has had pain when walking on something uneven that hits the glass and presses it in. He has experienced this pain in the right foot continuously since service. Specifically, the Veteran explained: There was pain every time I walked. And I went to sick bay, and they actually dug into my foot and they said that there was a piece of glass in there, but every time they tried to grab it, that they couldn't get it. But they made -- I have the paperwork here for that. But they said that every time that, you know -- they ended up making a 2- inch by 11/4-inch incision. I had it right here -- here. Yes, sir, up at the top. See August 2018 Hearing Transcript, p. 11. The Veteran highlighted that August 1978 STRs are consistent with his lay history. Next, the December 2019 VA 646 Statement of Accredited Representative in Appealed Case contains additional argument. For the right foot, it shows: The veteran contends that he should be entitled to service connection for a right foot disability. The veteran stated he did not have the condition at EAD. He stated that he had a "high arch" and was fitted for "combat" boots in the USMC. The veteran continued, "I was not provided with inserts or arch supports. After a period of time, I have chronic pain in my foot because of the stress on my unsupported arch. The constant running and marching only served to aggravate my condition. My arch has fallen to some degree and is chronically painful." Next, the Veteran was afforded an October 2019 VA foot examination with medical opinion. The VA examiner reviewed the entire claims file, and performed a physical examination. The VA examiner remarked, "The Veteran's exam today is normal, and he denies any pain on exam." However, it later shows that the Veteran reports pain in the right foot only when weight is applied. It shows, "It's 4/10 and it is a sharp pain, but it only happens when it hits the right spot." The VA examiner went on to render a negative nexus opinion. The VA examiner reasoned: During service, condition was acute only. There is no evidence of chronicity of care. There is objective evidence in his c-file of a complaint of right foot pain on 5/9/1978 after stepping on a piece of glass 2 days prior. The note states that no glass was noted. He was seen again in 8/1978 and it was noted that the glass was too deep to remove. His c-file is silent for any further objective evidence of a complaint of or treatment for right foot pain. There is objective evidence in the c-file of only two medical visit notes (on 5/9/1978 & 8/1978), and the c-file is then silent for a complaint of right foot pain until today's visit on 10/21/2019. Since there has been a gap of 42 years between when he sought care in the service and his claim now, and the objective evidence on physical exam was normal, and no diagnosis rendered, the claimed condition was less likely than not (less than 50 percent probability) incurred in or is otherwise related to the Veteran's active military service. Additional VA treatment records are substantially the same. They also show diabetic foot care. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report pain in the arches of the right foot following running and marching in service. He is competent to report receiving treatment for glass in the right foot in service. The Veteran is also competent to relate what he has been told by a professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, with respect to this issue, the Board has fully considered appeals counsel's contentions in the February 2021 Brief as they relate to the February 2021 Joint Motion for Remand (JMR). First, the JMR shows that the VA examiner did not discuss whether the Veteran still had glass in his foot. See February 2021 JMR, p. 3. On the top of page 4, the JMR shows that a new VA examination should be obtained "in which the examiner conducts necessary testing and addressees whether there are any residual symptoms due to any glass remaining in Appellant's right foot." Id. at p 4. The February 2021 Brief goes on to discuss the need for a new VA examination that includes diagnostic studies including imaging studies such as x-rays. The insinuation that a VA examination should include imaging studies to render it adequate is novel. Int his case, it is not certain that x-rays would conclusively establish the composition of a foreign object through the skin or otherwise provide for a more informed nexus opinion than already of record. Given the facts, a probe or endoscopy could be necessary in light of appeals counsel's request to determine the presence of any glass in the foot. Employing a less invasive approach, the October 2019 VA examiner already considered the Veteran's lay statements and the STRs in rendering a nexus opinion. Based upon this request now leading to a JMR, this issue will be remanded. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Pursuant to appeals counsel's request, diagnostic studies, including but not limited to a probe or endoscopy should be conducted, to the extent possible. This will be at the discretion of the VA examiner if the x-rays suggested in the February 2021 Brief would not be determinative with respect to the presence of any glass in the right foot. If the Veteran does not wish to undergo any additional diagnostic testing or fails to report to the scheduled examination, the case will be adjudicated based upon the evidence of record. Therefore, a remand is warranted. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for a cerebrovascular accident, claimed as secondary to hypertension is remanded. The Board incorporates its discussion from the sections above by reference. The Board incorporates its discussion from the sections above by reference. A remand is necessary for additional development. With respect to the claim for service connection for cerebrovascular accident (stroke), the Veteran's theory of entitlement is one of secondary service connection. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). "Hypertension" refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm Hg systolic and 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic as reflective of hypertension. See Dorland's Illustrated Medical Dictionary, 896 (32nd ed. 2012). Similarly, for VA rating purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm Hg or greater. The term "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mm Hg or greater with a diastolic blood pressure of less than 90 mm Hg. See 38 C.F.R. § 4.104, DC 7101, Note (1). For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. We note that hypertension as cardiovascular-renal disease, is a recognized chronic disease, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). By way of background, the December 1978 Report of Medical Examination from separation disclosed a clinically normal evaluation of the heart and vascular system. Decades later, a February 2014 VA Form 21-0960C-8, Headaches Disability Benefits Questionnaire (DBQ), shows that the Veteran had headaches continuously since 1977 while stationed at Camp Pendleton. The Veteran suffered a stroke in 2009. Shortly thereafter, an April 11, 2014 VAMC Other Output / Reports includes an April 13, 2004 VA primary care note. It shows in part, "HTN for 7 yrs or circa 1997. Prior use of Procardia and Avapro with some dizziness, with elevated BP as the culprit." An October 23, 2015 VA Cardiology Note from the New Orleans VA Medical Center (VAMC) shows that the Veteran suffered a stroke twice in August 2009. It also shows a diagnosis for hypertension. Next, with respect to the hypertension claim, the January 2016 VA Form 9, the Veteran explained his theory of entitlement. He asserted, "It is my contention (supported by my STRs) that I had elevated blood pressure on active duty. I now have full blown hypertension. This condition should be rated S/C." For a cerebrovascular accident, the January 2016 VA Form 9 shows in part, "This issue can only be rated a S/C if the hypertension (item #1) is rated S/C. We ask that the hypertension and the resultant CVA be rated as S/C." At the August 2018 hearing, the Veteran's representative highlighted that blood pressure readings in service were higher than normal, and constituted, "pre-hypertensive readings." The Veteran consistently testified that he would have his blood pressure taken several times in service because he was always nervous, until treatment providers got a normal reading. In other words, his numerous readings still showed essential hypertension even though they weren't recorded. The Veteran testified that he could not recall the exact year when he was diagnosed with hypertension. He concluded, "But, yes, it had been years before they finally I finally saw someone that told me you have hypertension and prescribed medication for me." See August 2018 Hearing Transcript, p. 5. Regarding a cardiovascular accident, the Veteran's representative testified, "He does think that service connection for stroke as a secondary would be appropriate because his doctor told him that his high blood pressure was a contributing factor to the stroke." See August 2018 Hearing Transcript, p. 14. The Veteran testified that he suffered from strokes in 2009. Next, the Veteran was afforded an October 2019 VA hypertension examination with medical opinion. The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. The VA examiner identified hypertension, with a date of onset of 1997. The Veteran's own lay history placed the date of onset to 2004. "He states that around 2004 he was going for a routine medical visit and was told he had high blood pressure." It then shows, "He had two CVAs in 2009. He denies any other symptoms related to the hypertension." The VA examiner provided a medical history of hypertension: It is unknown if the Veteran's HTN was confirmed by taking BP readings 2 or more times on at least 3 different days. However, there is ample objective evidence in the Veteran's c-file of a diagnosis of and treatment for HTN since 4/13/2014. In a primary care note dated 4/13/2004, the provider, P. H., NP, notes that the Veteran was diagnosed with HTN in 1997. Next, the VA examiner rendered a negative nexus opinion for hypertension. The VA examiner described: The Veteran's C-file is silent for a diagnosis of HTN in service. Entrance exam on 4/23/1975 noted a BP of 132/86, physicals on 12/17/1976 noted a BP of 128/78, on 10/3/1977 noted a BP of 120/80, on 12/5/1975 noted a BP of 130/82, and a discharge exam on 12/8/1978 noted a BP of 118/70. On a primary care note dated 4/13/2004, the provider noted that the Veteran was diagnosed with HTN in 1997. A nexus has not been established. Related to the claim for service connection for a cardiovascular accident (CVA), the Veteran was also afforded an October 2019 VA nervous system and neuromuscular diseases examination. Right cerebellar ischemic stroke was identified from 2009. The VA examiner also rendered a negative nexus opinion for the cerebrovascular accident (stroke). The VA examiner reasoned: There is objective evidence in the Veteran's c-file of BP readings while in service ranging from 118-132 systolic and 70-86 diastolic. Specifically, the entrance exam on 4/23/1975 noted a BP of 132/86, physicals on 12/17/1976 noted a BP of 128/78, on 10/3/1977 noted a BP of 120/80, and on 12/5/1975 noted a BP of 130/82. His discharge exam on 12/8/1978 also noted a normal BP reading of 118/70. On a primary care note dated 4/13/2004, the provider noted that the Veteran was diagnosed with hypertension in 1997. The Veteran has other risk factors such as hyperlipidemia, obesity, CAD with CABG in 2007, obstructive sleep apnea and diabetes mellitus type II that could have contributed to his CVA. A nexus has not been established. Next, the December 2019 VA 646 Statement of Accredited Representative in Appealed Case contains additional argument. It shows: The veteran is appealing the April 24, 2014 Rating Decision of the VA Regional Office (RO) New Orleans, LA. A Timely Notice of Disagreement (NOD) and Substantive Appeal are of record. Thus, the veteran has filed a timely appeal on the issue under consideration. The veteran's appeal was remanded by the Board of Veterans' Appeals. The veteran was diagnosed with hypertension in 1997. He contends that service connection should be granted for this condition because "while on active duty whenever my blood pressure was taken it was normally taken four to six times prior to being recorded. It was explained to me that I might be suffering from 'white coat syndrome.' It wasn't until I was perfectly calm that the readings were taken and recorded. It is my contention that I had elevated blood pressure on active duty. I now have full-blown hypertension." . . . . The veteran contends that cerebrovascular accident (also claimed as stroke) should be granted service connection secondary to his hypertension. He feels that the hypertension ultimately caused the CVA and therefore both should be entitled to service-connection. Recently, the February 2020 IHP includes the following argument: As to the issue of hypertension, it is the veteran's contentions that during his military service, it experienced multiple episodes of elevated blood pressure. The veteran since, has been diagnosed with hypertension. Service treatment records are consistent, by definition, with the veteran's claim of pre-hypertension during service. Next, with respect to the claim for service connection for cerebrovascular accident (stroke), the Veteran's theory of entitlement is one of secondary service connection. It is the veteran's belief that his high blood pressure was a contributing factor to the stroke he suffered in 2009. According to the Heart Association, most people who've had a first stroke also had high blood pressure (HBP or hypertension). Weakened arteries in the brain, resulting from high blood pressure, put you at a much higher risk for stroke. The IHP cites an Internet link from www.heart.org. The webpage shows, "Most people who've had a first stroke also had high blood pressure (HBP or hypertension)." "Most people" is not definite. It also does not show that this is peer-reviewed medical literature or based upon the Veteran's particular circumstances. The IHP also shows that the Veteran has had headaches continuously since 1997. The Board observes that the Veteran is already service-connected for migraine headaches. Additional VA treatment records are substantially the same, and show a history of two strokes from 2009. The Veteran's central theory of entitlement is that hypertension manifest in service, resulting in disability, and this caused a subsequent cardiovascular accident after separation. For these issues, in the February 2021 Brief, counsel highlights that the VA examiner must consider any blood pressure readings sufficient to identify the disease entity prior to its formal diagnosis. See February 2021 Brief, pp. 4-5. Counsel concedes that the VA examiner "noted BP readings" but argues that the examiner failed to comment on whether these besides the discharge examination were manifestations of the hypertension disease entity. This gives short shrift to the opinions and rationale offered by the VA examiner based upon the critical discharge examination. Appeals counsel requests a new VA examination to consider any elevated blood pressure readings throughout service that may represent characteristic manifestations of hypertension. Id. at p. 5. Counsel contends that the VA examiner's reliance on the lack of a formal diagnosis of hypertension in service constitutes an insufficient rationale. See February 2021 JMR, p. 5. Nevertheless, the quotation that precedes this shows that the VA examiner reproduced and considered numerous in-service blood pressure readings in rendering a nexus opinion. This stands in contrast to the representation by appeals counsel in the February 2021 Brief. The VA examiner's "comment" on the blood pressure readings was the examination's nexus opinion itself, grounded in the STRs. Nevertheless, based upon these specific requests in the JMR, a new set of VA examinations with medical opinions is warranted. Turning to a cerebrovascular accident, the February 2021 JMR shows that this issue is inextricably intertwined with the hypertension issue and warrants a remand under Harris, 1 Vet. App. At 183. It reads, "Because a favorable decision on the claim for hypertension may impact Appellant's claim for entitlement to service connection for a cerebrovascular accident, the parties agree that remand of the latter claim is also warranted." See February 2021 JMR, p. 6. In this regard, the Board observes that the February 2021 Brief cites Jandreau and references that the Veteran competently reported that his doctor told him that high blood pressure was a contributing factor to his stroke. See February 2021 Brief, p. 7. Although competent to relate such an opinion under Jandreau, this does not necessarily mean that the conclusory nexus opinion is credible or probative. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board is mindful of the same requirements for an adequate examination as raised by appeals counsel with respect to the October 2019 VA examination. For example, as described by appeals counsel, a medical opinion could describe the nature of the relationship between the disease entities, e.g. causation or aggravation, with reasons and bases citing to evidence in the claims file. On remand, appeals counsel is invited to submit any private medical opinions from the Veteran's doctor or other evidence for consideration by the VA examiner prior to the Board's forthcoming decision. If this evidence is not received, the claims will be adjudicated based upon the evidence of record. Therefore, a remand is warranted. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran's VA treatment records, and associate them with the Veteran's claims folder. 2. Please schedule the Veteran for a VA examination to determine the nature and etiology of any right foot disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active military service. Pursuant to the February 2021 Joint Motion for Remand (JMR), any necessary diagnostic testing should be conducted to determine the presence of alleged glass in the right foot. If an x-ray will not suffice in the judgment of the examiner, this may also include a probe or other diagnostic technique, to the extent possible. Attention is invited to the October 2019 VA examination with medical opinion. The examiner should provide a rationale for all opinions expressed. 3. Please schedule the Veteran for a VA examination to determine the nature and etiology of any hypertension. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active military service. The VA examiner should comment on blood pressure readings and any relevant symptoms manifested in service. See STRs; August 2018 Hearing Transcript, p. 14. Pursuant to the February 2021 JMR, the VA examiner should discuss whether any noted blood pressure readings in service represent characteristic manifestations of later-diagnosed hypertension, even if there was no formally documented diagnosis of the disease entity at separation. Attention is invited to the October 2019 VA examination with medical opinion. The examiner should provide a rationale for all opinions expressed. 4. Upon obtaining the completed clarification and development ordered above (to the extent possible), review the claims file to ensure that it addresses the three issues on appeal. Any inadequacies should be addressed prior to recertification to the Board. 5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Bodi, 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.