Citation Nr: 22017322 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-01 025 DATE: March 24, 2022 REMANDED Entitlement to service connection for any upper respiratory tract condition is remanded. Entitlement to service connection for lung disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for impotency is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 1963 to May 1968, including service in the Republic of Vietnam. The Veteran and his wife testified at an August 2019 Board hearing before the undersigned Veterans Law Judge. The issues on appeal were remanded for further development in November 2019 and June 2021. 1. Service connection for any upper respiratory tract condition is remanded. 2. Service connection for lung disorder is remanded. 3. Service connection for headaches is remanded. The Veteran contends that an upper respiratory tract condition, lung disorder, and headaches began during service and have been continuous since discharge. In the 2019 Board hearing, the Veteran's wife testified that she knew the Veteran in 1968 and recalled the Veteran receiving treatment for sinus problems and sinus headaches after discharge from service by his private family physician. The Veteran confirmed, in testimony, that he was prescribed medication for sinus problems and sinus headaches by his private physician soon after separation from service, but those records are no longer available. See August 2019, Hearing transcript; VA Form 21-4138 dated May 2012, February 2013, and July 2013. Post-service treatment records indicate the Veteran complained of seasonal allergies and severe headaches, some of which occurring during allergy season. He takes Claritin, Flonase, and uses a neti pot for allergies as directed by his provider and has an active prescription for fluticasone prop. See VA treatment records dated September 2013, February 2018, March 2020, November 2020, and February 2021; April 2003, Private treatment record. In the June 2021 Board remand instructions, the AOJ was directed to obtain new VA examinations concerning an upper respiratory tract condition, lung disorder, and headaches to determine the nature and etiology of the contended disorders. The Board further instructed the VA examiner to "acknowledge and discuss" the Veteran's lay statements for each claimed disorder. The Board finds the November 2021 VA examinations for respiratory conditions and headaches are inadequate as the examiner failed to address and discuss the Veteran's (and his wife's) lay statements of symptoms that have persisted since active service and that he received treatment for these disorders soon after discharge from service; yet, found that the Veteran's complaints of in-service shortness of breath, upper respiratory symptoms, and headaches were acute rather than chronic. Additionally, the VA examiner inaccurately stated the claims file does not reveal ongoing complaints of headaches in the medical record. Finally, in finding the Veteran's diagnosed pulmonary embolism was not related to Agent Orange exposure, the examiner's reasoning was solely based on the fact that a pulmonary embolism is not on the list of presumptive diseases conceded by VA. Accordingly, the Board finds new examinations are necessary to determine the nature and etiology of an upper respiratory tract condition, lung disorder, and headaches. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (finding the proper remedy is to order a new examination when an examiner fails to address the veteran's lay statements and reports of symptoms); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Service connection for hypertension is remanded. 5. Service connection for impotency is remanded. The Veteran contends that hypertension and impotency are related to active service. Regarding hypertension, the Veteran and his wife testified that he began receiving treatment, to include medication, for hypertension within six months of separation from service by his private family physician but those records are no longer available. Regarding impotency, the Veteran stated that he was given "soft peter" while stationed in Vietnam which resulted in erectile dysfunction that persisted after discharge. He further stated that after he married in 1969, he tried to have a child but had to resort to fertility assistance to have his only child in 1973. See January 2021, VA examination; August 2019, Hearing transcript; February 2013, VA Form 21-4138. The Board's June 2021 remand instructions directed the VA examiner to "discuss and address" the Veteran's lay statements, render an opinion regarding Agent Orange exposure even if the disorder is not included in the list of presumptive diseases, and determine whether hypertension and impotency are proximately due to or aggravated by his service-connected psychiatric disorder. New VA examinations for impotency and hypertension are necessary as the November 2021 VA examiner failed to opine whether hypertension is related to Agent Orange exposure despite not being included on the presumptive list and the National Academies of Sciences' (NAS) 2018 update upgrading hypertension to a category of sufficient evidence of an association to Agent Orange exposure, failed to provide any aggravation opinions, and did not to discuss the Veteran's lay statements of recurrent symptoms since separation from service. See Miller, 32 Vet. App. 249; see also Stegall, 11 Vet. App. at 271. 6. Service connection for a right knee disorder is remanded. 7. Service connection for a left knee disorder is remanded. The Veteran contends that his bilateral knee disorders are the result of active service. Specifically, the Veteran explained that he injured his knees when he fell off a wing of a plane during service and landed on both knees. The Veteran further stated that bilateral knee pain has been recurrent since the in-service fall. See August 2019, Hearing transcript. An April 1964 service treatment record (STR) diagnosed a mild right knee strain. The Veteran was afforded a VA examination for the knees in November 2021. The examiner rendered a negative nexus opinion for direct service connection but admitted that he did not find any service treatment records diagnosing a right knee strain and failed to discuss the Veteran's lay statements regarding the onset and recurrence of bilateral knee pain. In a separate opinion concerning Agent Orange exposure, the examiner cited the National Institute of Arthritis and Musculoskeletal and Skin Diseases (NIAMS) indicating that knee strains occur when a tendon or muscle stretches or tears and muscle strains around the knee which may be the result of a sudden injury. Although the NIAMS report could support finding the Veteran's claimed in-service knee injury caused his current right knee strain, the examiner failed to address it in his initial negative nexus opinion. Accordingly, the Board finds a new VA examination is necessary to determine the etiology of any current bilateral knee disorder. See Miller, 32 Vet. App. 249; see also Stegall, 11 Vet. App. at 271. 8. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. As a decision on the remanded issues above could significantly impact a decision on the Veteran's TDIU claim, the issues are inextricably intertwined. Thus, the Board must defer consideration of this claim. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself or others who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service respiratory, lung, headache, hypertension as well as right knee and left knee problems to corroborate the report of the Veteran and his wife that he has had recurrent issues, such as headaches and knee problems, since service. The Veteran should also be invited to submit lay statements regarding the impact of his service-connected psychiatric disability on his ability to work. The Veteran should also be advised that he may submit medical opinions that address whether any of the disorders for which he seeks service connection are related to or had their onset in service, to include his presumed Agent Orange exposure. The Veteran should be provided an appropriate amount of time to submit this lay and/or medical evidence. 2. Obtain updated VA treatment records/evaluations and associate them with the claims file. 3. Schedule the Veteran for an examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any upper respiratory tract condition, lung, headache, hypertension, impotency, and bilateral knee disorder. The examiner is asked to review the June 2021 and current Board Remands, pertinent evidence of record, including the Veteran's lay assertions regarding his symptomatology and history, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address the following questions: (a.) Whether it is at least as likely as not that any current upper respiratory tract, lung, headache, hypertension, impotency, and bilateral knee disorder had its onset in or is otherwise related to active service, to include the Veteran's lay statements of recurrent symptoms since discharge from service, receipt of treatment by his private physician within one year of discharge from service, in-service and current diagnosis of a right knee strain, and the NIAMS report indicating that a knee strain can be the result of a sudden injury. See November 2021, VA examinations; August 2019, Hearing transcript; VA Form 21-4138 dated May 2012, February 2013, and July 2013; April 1964, STR. (b.) Whether it is at least as likely as not that hypertension and impotency are related to the Veteran's presumed exposure to Agent Orange. The examiner should specifically address the Veteran's contention that impotency began during service while stationed in Vietnam. See January 2021, VA examination. With regard to the hypertension claim, in answering this question, the examiner is asked to disregard whether the disorder is one for which a "presumption" is established and, instead, to answer whether his hypertension is a result of Agent Orange exposure, even though it is not on the list of "presumptive diseases. To this extent, the examiner should consider the Veterans and Agent Orange: Update 11 (2018) where the National Academies of Sciences, Engineering and Medicine (NAS), upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. The examiner must acknowledge and discuss that, 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. (c.) Whether it is at least as likely as not that the Veteran's hypertension and impotency are proximately due to or aggravated by his service-connected psychiatric disability. Please note that separate opinions addressing proximate cause and aggravation are needed. The examiner must acknowledge and discuss the Veteran's lay statements regarding each claimed disorder and provide a comprehensive rationale for all opinions. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Straughn, Shavonne 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.