Citation Nr: 22010299 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 15-28 269 DATE: February 23, 2022 REMANDED Entitlement to service connection for nerve pain and/or neuropathy, to include as due to herbicide exposure, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. Entitlement to rating in excess of 30 percent for right knee instability, prior to August 31, 2016, is remanded. Entitlement to an initial rating in excess of 10 percent for right knee limitation of motion, from July 19, 2012 forward, is remanded. Entitlement to a rating in excess of 30 percent for right total knee replacement, from November 1, 2017 forward, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1968 to March 1970. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In an October 2016 rating decision, the agency of original jurisdiction (AOJ) granted a temporary total evaluation pursuant to 38 C.F.R. § 4.30 based on right total knee arthroplasty, beginning August 31, 2016. The rating decision indicated that the temporary total evaluation would be in effect until October 31, 2017, with a 30 percent rating to be assigned from November 1, 2017. In April 2019, the Veteran and his representative were notified of the date, time, and location of a Board hearing the Veteran requested in connection with the present appeal. See 38 C.F.R. § 20.704(b). He did not appear for the hearing, and no motion for rescheduling has been received. Accordingly, the Board will process his appeal as though the request for a hearing has been withdrawn. 38 C.F.R. § 20.704(d). Entitlement to service connection for nerve pain and/or neuropathy. Appellants are entitled to initial review by the AOJ of evidence added to the claims file by VA, and waiver of such review may not be presumed. See 38 C.F.R. § 20.1305(c). Here, since the July 2015 statement of the case (SOC), additional VA treatment records regarding the Veteran's nerve pain and/or neuropathy have been added to the claims file. These treatment records were associated with the claims file after the appeal was certified to the Board, and the evidence has not yet been considered by the AOJ. In July 2021, a letter was sent to the Veteran offering the option to waive initial AOJ consideration. In August 2021 correspondence, the Veteran requested remand to the AOJ for review of the additional evidence that was associated with the claims file. Accordingly, remand is necessary in order for the AOJ to readjudicate the issue in light of the new evidence. Entitlement to service connection for hypertension. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. In this regard, the Veteran served in Vietnam from September 1968 to April 1969; therefore, exposure to herbicide agents is conceded. The Board notes that hypertension is not a condition for which presumptive service connection can currently be awarded based on presumed in-service herbicide exposure. However, as noted in Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS) found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. Specifically, NAS upgraded hypertension from its previous classification of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. Given this determination, the Board finds that the Veteran should be afforded a VA examination concerning the likelihood that his hypertension is related to his conceded in-service herbicide exposure. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the matter is remanded to obtain a VA examination regarding the nature and etiology of the Veteran's hypertension. Entitlement to an increased rating for right knee disability. The Veteran was last afforded a VA examination for his right knee in August 2014. The record indicates that the Veteran underwent right knee arthroplasty in August 2016. Accordingly, remand is required to determine the current severity of the Veteran's right knee disability. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the claims file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the claims file. 2. Thereafter, readjudicate the claim for service connection for nerve pain and/or neuropathy based on the entirety of the evidence. 3. After completing directive #1, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his hypertension. The evidentiary record, including a copy of this remand, must be made available to, and reviewed by the examiner. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was caused by, or is otherwise etiologically related to, his presumed herbicide exposure. Please explain why or why not. The examiner should consider the NAS 2018 conclusion that hypertension has been upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. After completing directive #1, schedule the Veteran for an examination with an appropriate clinician to determine the current nature and severity of his service-connected right knee disability. The evidentiary record, including a copy of this remand, must be made available to, and reviewed by the examiner. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should conduct range of motion studies and assess any functional impairment due to such factors as pain and weakness and express this functional impairment in terms of further loss of motion. To the extent possible, range of motion studies should include active and passive motion, weight-bearing, and non weight bearing. The examiner should attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. (Continued on the next page) A detailed rationale for the opinions must be provided. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, the examiner should explain the reasons for such inability and comment on 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. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, Associate 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.