Citation Nr: 21045473 Decision Date: 07/26/21 Archive Date: 07/26/21 DOCKET NO. 16-30 558 DATE: July 26, 2021 ORDER Entitlement to service connection for lumbosacral DJD and DDD with mild lumbar scoliosis, to include as secondary to service-connected major depressive episode with obsessive compulsive disorder and PTSD, is granted. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected major depressive episode with obsessive compulsive disorder and PTSD, is granted. Entitlement to service connection for anemia, to include as secondary to service-connected major depressive episode with obsessive compulsive disorder and PTSD, is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for temporomandibular joint dysfunction is remanded. FINDINGS OF FACT 1. The Veteran's lumbosacral DJD and DDD with mild lumbar scoliosis was aggravated beyond its natural progression by service-connected major depressive episode with obsessive compulsive disorder and PTSD. 2. The Veteran's hemorrhoids were aggravated beyond their natural progression by service-connected major depressive episode with obsessive compulsive disorder and PTSD. 3. The Veteran's anemia was aggravated beyond its natural progression by service-connected major depressive episode with obsessive compulsive disorder and PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbosacral DJD and DDD with mild lumbar scoliosis as secondary to major depressive episode with obsessive compulsive disorder and PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for hemorrhoids as secondary to major depressive episode with obsessive compulsive disorder and PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for anemia as secondary to major depressive episode with obsessive compulsive disorder and PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to June 1975, which included approximately three years of service in the Republic of Vietnam, and from May 1980 to December 1981. This matter is on appeal from January 2015 and May 2015 rating decisions. A hearing was not requested. This matter was previously remanded in January 2019. A hearing is pending for the issues of entitlement to service connection for a right shoulder disorder, entitlement to service connection for a left shoulder disorder, and entitlement to compensation pursuant to the provisions of 38 U.S.C. § 1151 for a bilateral foot disorder resulting from treatment rendered at a VA medical facility. These three issues were previously remanded for issuance of a Statement of the Case. In June 2020, a Statement of the Case issued. The Veteran timely filed a VA Form 9 requesting a video hearing. Because a hearing has not yet been held, the Board will not at this time assume jurisdiction over these three issues. Service Connection Service connection may be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 44748. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 51214 (1998). 1. Low back disorder The first element is met, in that a February 2020 VA examination indicates a current diagnosis of lumbosacral DJD and DDD with mild lumbar scoliosis. The nexus element is also met, in that the evidence is at least in equipoise. A February 2020 VA medical opinion concludes that the Veteran's back disorder is less likely than not caused or aggravated by his service-connected psych disorder. The rationale is that his "diagnosed Lumbosacral DJD and DDD with mild Lumbar Scoliosis are all normal, age-related, degenerative findings" that "seem[] to stem from a preoccupation with a mild asymmetry of the distal sacrum." This asymmetric portion of the Veteran's sacrum "bears no significance to the function of his back and/or pelvis and is unrelated to the radiographically identified mild Lumbar Scoliosis." According to the examiner, the Veteran's exercise regimen "has likely lessened the severity of these age-related degenerative findings." A February 2020 private medical opinion (received April 30, 2020) states that the Veteran's service-connected psychiatric disorder "could definitely effect or worsen" the Veteran's back disorder. This conclusion is based on "evidence in multiple medical databases that ... show an association between the above physical ailments and patients with histories of" psychiatric disorders. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). There is no reason to ascribe greater probative value to one opinion over the other, even though the opinions come to different conclusions based on different rationales. As the evidence is at least in equipoise, the Veteran is entitled to a favorable finding with respect to the existence of a nexus between the Veteran's current back disorder and his service-connected psychiatric disorder. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5556 (1990). Service connection is warranted on a secondary basis. 2. Hemorrhoids The first element is met, in that a February 2020 VA examination indicates a current disorder of hemorrhoids. The nexus element is also met, in that the evidence is at least in equipoise. A February 2020 VA medical opinion concludes that the Veteran's hemorrhoids are less likely than not caused or aggravated by his service-connected psych disorder. The rationale is that the Mayo Clinic's information page does not list psychiatric disorders as a cause of hemorrhoids. A February 2020 private medical opinion (received April 30, 2020) states that the Veteran's service-connected psychiatric disorder "could definitely effect or worsen" the Veteran's hemorrhoids. This conclusion is based on "evidence in multiple medical databases that ... show an association between the above physical ailments and patients with histories of" psychiatric disorders. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 30102. There is no reason to ascribe greater probative value to one opinion over the other, even though the opinions come to different conclusions based on different rationales. As the evidence is at least in equipoise, the Veteran is entitled to a favorable finding with respect to the existence of a nexus between the Veteran's hemorrhoids disorder and his service-connected psychiatric disorder. 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 at 5556. Service connection is warranted on a secondary basis. 3. Anemia Regarding the first element of service connection, "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the first element is met if there is a diagnosis of anemia from February 4, 2014, the date that the Veteran filed his claim, and the present. The Board finds that the first element is met, even though several VA medical records suggest that the Veteran's anemia has resolved during the time of the appeal. This cycle of resolution and re-emergence has been going on since 2006. A June 2006 VA medical record indicates "a slight anemia with hemoglobin of 13.5." An August 2006 VA medical record "note[s] a mild anemia." A June 2007 VA medical record reads: "Anemia, likely nutritional as he is vegetarian, resolved." A July 2008 VA medical record reads: "Anemia, nutritional, stable." An August 2009 VA medical record reads: "Anemia, improved." An October 2012 VA medical record indicates "chronic anemia with hemoglobin of 13.4" and that this anemia is "likely nutritional." A December 2013 VA medical record indicates "chronic anemia with a hemoglobin of 13.9" and characterizes this anemia as "chronic and stable, likely nutritional." VA dental records dated July 2014 and January 2015 VA list "anemia" as one of the Veteran's "Active Problems." A March 2015 VA medical record indicates "[h]istory of slight anemia." In an April 2016 VA medical record notes a "long discussion with the patient about diet and the reassurance that he doesn't have any anemia." A February 2020 VA examination does not indicate a current diagnosis of anemia, stating that "[t]he condition has resolved per recent laboratory testing" and "[n]o symptoms can be attributed to any hematological condition." Giving the Veteran the benefit of the doubt, the Board finds that the Veteran displayed a current diagnosis of anemia during the appeal period. A December 2013 VA medical record indicates "chronic anemia" and subsequent VA dental records list anemia as one of the Veteran's "Active Problems." Although the existence of anemia has cycled with time since 2006, the Board find that this evidence supports the existence of anemia during the period on appeal. The first element of service connection is met. The nexus element is also met. A February 2020 private medical opinion (received April 30, 2020) states that the Veteran's service-connected psychiatric disorder "could definitely effect or worsen" the Veteran's anemia. This conclusion is based on "evidence in multiple medical databases that ... show an association between the above physical ailments and patients with histories of" psychiatric disorders. This medical opinion is probative because it is based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 30102. The Veteran is entitled to service connection, as the two elements of secondary service connection are met. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for temporomandibular joint dysfunction is remanded. A remand is required for a new examination assessing the rating criteria under Diagnostic Code 9902. In January 2019, the Board remanded this claim for a new examination addressing: 1) potential bone loss relating to temporomandibular joint dysfunction; and 2) passive ranges of motion for the temporomandibular joint, as required by Correia. A February 2020 VA medical opinion notes moderate bone loss since 2010 but concludes that "it appears this bone loss is attributed to Periodontal Disease and is not attributed to his TMD." The rationale for this opinion is that "bone loss [is] noted within the Periodontal Status portion of the" dental record. The Board has identified five VA dental records indicating moderate bone loss. A March 2010 record notes "radiographs taken/read showing generalized moderate bone loss consistent with chronic adult onset periodontal disease." A March 2011 record indicates "[m]oderate bone loss due to chronic perio." A May 2012 record reads: "Patient has moderately restored dentition with moderate bone loss consistent with generalized chronic periodontal disease." A July 2014 record reads in part: "Periodontal Assessment: Good Periodontal Health-moderate bone loss stable." Finally, a July 2016 record reads in part: "Health of Periodontal Tissue: ... I received the pano that was sent and it showed generalized early to moderate horizontal bone loss." The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181 (1998). In the present case, the Board finds that there is no medical evidence differentiating between bone loss related to nonservice-connected periodontal disease and bone loss related to service-connected temporomandibular joint dysfunction. Contrary to what the examiner states, the Board finds that mentioning bone loss in conjunction with periodontal disease does not constitute evidence of an underlying cause for the Veteran's moderate bone loss. The February 2020 VA examination of record does not address symptomatology relating to Diagnostic Code 9902, which provides compensation for symptoms arising from loss of the mandible. A new examination is therefore required. Additionally, on remand the RO should obtain all relevant VA treatment records dated from April 2021 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from April 2021 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion regarding the nature and severity of the Veteran's service-connected temporomandibular joint dysfunction. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. The examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) should be conducted in accordance with the examination worksheets for Diagnostic Code 9902 and any other worksheets that the RO deems relevant. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. The examiner should determine whether the Veteran's temporomandibular joint dysfunction is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran's range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. 4. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.