Citation Nr: A25035361 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 231102-388403 DATE: April 16, 2025 REMANDED Entitlement to service connection for a cervical disorder, previously adjudicated as neck pain, neck spasms, and neck injury, is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right ankle disorder is remanded. REASONS FOR REMAND The Veteran had active service from June 1985 to September 1992. The rating decision on appeal was issued in September 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the November 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. Because the Board is remanding the four claims above, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Lastly, the Board notes the Veteran attempted to appeal the denial of compensation related to his left ankle and hyperacusis via the November 2023 VA Form 10182. He stated the AOJ denied compensation for these issues in the September 2023 rating decision on appeal. It did not. Instead, it denied compensation for the left ankle in a June 1994 rating decision and for the hyperacusis in a February 2022 rating decision. The Veteran did not timely appeal either the June 1994 or February 2022 rating decisions; the Veteran did not request an extension of the time to file an appeal nor does the file support a finding of good cause shown for any delay in filing an appeal. Therefore, these issues are not before the Board. Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2)?AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. ?See?38?C.F.R. §?20.802(a).? Having reviewed the evidence of record, the Board finds that remand of the issues on appeal for pre-decisional duty to assist errors is required. Toxic Exposure Risk Activity In September 2023, contemporaneous with the rating decision on appeal, the AOJ found the Veteran the Veteran did not participate in a toxic exposure risk activity (TERA) during service. It then applied this finding to the four issues on appeal. In March 2025, the Veteran's representative noted the AOJ did "not provide detailed discussion on how it arrived at this conclusion." The Board agrees. This conclusory finding did not explain whether the Veteran had any in-garrison TERAs based on his driver mechanic badge with bar, and his duties as a unit supply specialist, supply specialist, and armorer. This error violated 38 U.S.C. § 5103A. Therefore, remand is warranted for the AOJ to explain its decision under 38 C.F.R. § 20.802(a). Issue 1: Entitlement to service connection for a right ankle disorder In February 2015, the Veteran claimed service connection for a right ankle disorder. He did not provide a theory of entitlement. In April 2015, the AOJ denied the claim without examining him. In September 2015, the Veteran appealed. He claimed the disability resulted from an in-service basketball injury, long marches, physical training, or drill maneuvers. In January 2019, the AOJ examined him. The examiner diagnosed him with sensory lumbar neuropathy. He opined that "the Veteran's symptoms are much more likely to be related to a radicular herniated disc or foramen encroachment of an existing nerve root. There are no objective finding[s] of local ankle pathology." In April 2019, the AOJ issued a Rapid Appeals Modernization Program (RAMP) rating decision, as the Veteran had opted his legacy appeal into the AMA via the RAMP in September 2018. In this decision, the AOJ found the Veteran a) had a current disability, and b) was treated in service for a right ankle injury. It denied the claim based on no medical nexus. The Veteran did not, under 38 C.F.R. § 3.2500, continuously pursue the claim underlying this rating decision. Therefore, this rating decision went final. In August 2023, the Veteran filed a supplemental claim, seeking to readjudicate the claim of entitlement to service connection for a right ankle disability based on new and relevant evidence. In September 2023, the AOJ, despite its contrary statement on the title page of the rating decision, found that the Veteran had submitted new and relevant evidence to warrant readjudicating his claim in the body of the rating decision. It readjudicated his claim, denying it on its merits. In its denial, the AOJ reversed its April 2019 favorable finding that the Veteran had satisfied the second element of service connection, i.e., an in-service injury. Under 38 C.F.R. § 3.104(c), VA adjudicators may only rebut a favorable finding by identifying a clear and unmistakable error in the favorable finding. Here, the AOJ did not do that. Consequently, the Board reverses the AOJ's action. This error, when combined with the AOJ's finding of new and relevant evidence, leads the Board to conclude the AOJ should have examined the Veteran for this claim. As there was evidence of a current disability that may be associated with service but there was insufficient medical evidence to make a decision on the claim, the AOJ erred in assisting him with prosecuting it under 38 U.S.C. § 5103A. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, remand is warranted for an examination under 38 C.F.R. § 20.802(a). Issue 2: Entitlement to service connection for hypertension In February 2015, the Veteran claimed service connection for hypertension. He did not provide a theory of entitlement. In April 2015, the AOJ denied the claim without examining him. In August 2015, the Veteran appealed. He contended his hypertension was secondary to his now-service connected acquired psychiatric disorder. In January 2018, the Veteran, in a VA Form 9, contended his hypertension was secondary to a) his now-service connected acquired psychiatric disorder, or b) the medications he used to treat his service-connected headaches. In April 2019, the AOJ issued a RAMP rating decision. In this decision, the AOJ found the Veteran had a current disability. However, it denied the claim without examining him, finding there was no in-service event, a factor in a claim involving a direct theory of entitlement. The Veteran did not, under 38 C.F.R. § 3.2500, continuously pursue the claim underlying this rating decision. Therefore, this rating decision went final. In August 2023, the Veteran claimed service connection via a supplemental claim under a direct theory of entitlement, requesting the AOJ readjudicate the claim based on new and relevant evidence. In September 2023, the AOJ found, despite its contrary statement on the title page of the rating decision, that the Veteran had submitted new and relevant evidence to warrant readjudicating his claim in the body of the rating decision. It readjudicated his claim, finding the Veteran had hypertension, but denying it on the remaining two elements of a direct service connection claim, i.e., in-service injury and medical nexus. It did not consider the secondary theory of entitlement from its previous rating decisions. Here, the Army did not treat the Veteran for hypertension during service, nor did he have consistently high blood pressure readings during service. Therefore, the Board cannot discern an error regarding the AOJ's decision not to examine the Veteran under a direct theory of entitlement. However, given the Veteran's previously articulated secondary theories of entitlement, the Board finds the AOJ erred in not examining him on that basis under 38 U.S.C. § 5103A. Therefore, remand is warranted for an examination under 38 C.F.R. § 20.802(a). Issue 3: Entitlement to service connection for a cervical disorder, previously adjudicated as neck pain, neck spasms and neck injury In May 2017, the Veteran claimed service connection for a cervical disorder as secondary to his right shoulder. In September 2017, the AOJ examined him. The examiner diagnosed a cervical strain, spinal stenosis, and degenerative arthritis of the spine. The examiner opined that the right shoulder did not cause the cervical disabilities because the "shoulder and vertebral conditions are two separate conditions and are not relating to each other." The examiner did not opine on whether the right shoulder aggravated the cervical disabilities. That month, the AOJ denied service connection based on no medical nexus between the right shoulder and cervical disabilities. In November 2017, the Veteran appealed the denial. In April 2019, the AOJ issued a RAMP rating decision. In this decision, the AOJ found the Veteran had a current disability. However, it denied the claim without re-examining him, finding there was no in-service event, a factor in a claim involving a direct theory of entitlement. The Veteran did not, under 38 C.F.R. § 3.2500, continuously pursue the claim underlying this rating decision. Therefore, this rating decision went final. In February 2022, the Veteran claimed service connection via a supplemental claim, requesting the AOJ readjudicate his claim based on new and relevant evidence. He did not articulate a theory of entitlement. That same month, the AOJ found that the Veteran had not submitted new and relevant evidence to warrant readjudicating his claim in the body of the rating decision. In this decision, the AOJ found the Veteran had a current disability and a service-connected right shoulder disability. Despite this, it denied the claim without re-examining him, finding there was no in-service event, a factor in a claim involving a direct theory of entitlement. The Veteran did not, under 38 C.F.R. § 3.2500, continuously pursue the claim underlying this rating decision. Therefore, this rating decision went final. In August 2023, the Veteran claimed service connection via a supplemental claim under a direct theory of entitlement, requesting the AOJ readjudicate his claim based on new and relevant evidence . In September 2023, the AOJ implicitly found, despite its contrary statement on the title page of the rating decision, that the Veteran had submitted new and relevant evidence to warrant readjudicating his claim in the body of the rating decision. It readjudicated his claim, finding the Veteran had a current disability but denying it on the remaining two elements of a direct service connection claim, i.e., in-service injury and medical nexus. It did not consider the secondary theory of entitlement from its previous rating decisions. Here, the AOJ's finding of no in-service event was incorrect. In July 1992, the Veteran complained of neck and shoulder pain resulting from his right shoulder separation. It is unclear from this record if the Veteran injured his neck in the same event in which he separated his right shoulder. Based on this and the September 2017 VA examiner's failure to opine on secondary aggravation, the AOJ should have examined the Veteran and obtained an opinion on direct and secondary service connection. Because it did not, it erred under 38 U.S.C. § 5103A. Therefore, remand is warranted for an examination under 38 C.F.R. § 20.802(a) for a direct theory of entitlement and a secondary theory of aggravation. Issue 4: Entitlement to service connection for vertigo In a June 2016 statement, the Veteran reported that in May 2016, he was overwhelmed with headaches and dizziness while preparing for work. In January 2017, the AOJ denied service connection for headaches and vertigo, finding the conditions neither occurred in nor were caused by service. In October 2017, he claimed service connection for "headaches with vertigo." In November 2017, he appealed the January 2017 denial. He traced the disability to an in-service parachute accident, i.e., a direct theory of entitlement. In April 2019, the AOJ issued a RAMP rating decision. In this decision, the AOJ found the Veteran had a current disability. However, it denied the claim without examining him, finding there was no in-service event or medical nexus. The Veteran did not, under 38 C.F.R. § 3.2500, continuously pursue the claim underlying this rating decision. Therefore, this rating decision went final. In September 2023, the Veteran claimed service connection via a supplemental claim. He included a March 1988 service treatment record noting dizziness. Later that month, the AOJ implicitly found, despite its contrary statement on the title page of the rating decision, that the Veteran had submitted new and relevant evidence to warrant readjudicating his claim in the body of the rating decision. It readjudicated his claim, finding the Veteran had a current disability but denying it on the remaining two elements of a direct service connection claim, i.e., in-service injury and medical nexus. Given the service treatment record, the AOJ should have examined the Veteran. The examination should have included entitlement to service connection on a direct basis based on the March 1988 service treatment records, as well as a secondary theory of entitlement given the October 2017 claim, i.e., vertigo as secondary to migraine headaches. Because the AOJ did not examine him, it erred under 38 U.S.C. § 5103A. Therefore, remand is warranted for an examination under 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: 1. Determine whether the Veteran had any in-garrison TERAs based on his driver mechanic badge with bar, and his duties as a unit supply specialist, supply specialist, and armorer. Explain the reasoning behind the decision made in a memorandum that is associated with the claims file. 2. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's right ankle disorder. The clinician must review the entire claims file, including this Remand. The clinician should opine: a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right ankle disorder began during, or was otherwise caused by, his military service? Why or why not? A complete rationale is required. 3. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's hypertension. The clinician must review the entire claims file, including this Remand. The clinician should opine: a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected acquired psychiatric disorder CAUSED his hypertension? Why or why not? b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected acquired psychiatric disorder AGGRAVATES (worsens) his hypertension? Why or why not? c) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected migraine headaches, to include the medications taken to treat them, CAUSED his hypertension? Why or why not? d) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected migraine headaches, to include the medications taken to treat them, AGGRAVATE (worsens) his hypertension? Why or why not? In answering questions regarding aggravation, the clinician is reminded that aggravation is defined as 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. The examiner is advised that a finding that the Veteran's hypertension was aggravated due to a service-connected disability, to include the medications taken to treat it, does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale is required. 4. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's vertigo. The clinician must review the entire claims file, including this Remand. The clinician should opine: a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's vertigo began during, or was otherwise caused by, his military service? Why or why not? b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected migraine headaches, to include the medications taken to treat them, CAUSED his vertigo? Why or why not? c) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected migraine headaches, to include the medications taken to treat them, AGGRAVATES (worsens) his vertigo? Why or why not? In answering questions regarding aggravation, the clinician is reminded that aggravation is defined as 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. The examiner is advised that a finding that the Veteran's vertigo was aggravated due to a service-connected disability, to include the medications taken to treat it, does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale is required. 5. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's cervical disorder. The clinician must review the entire claims file, including this Remand. The clinician should opine: a) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's cervical disorder began during, or was otherwise caused by, his military service? Why or why not? b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected right shoulder disorder AGGRAVATES (worsens) his cervical disorder? Why or why not? (Continued on the next page) ? In answering questions regarding aggravation, the clinician is reminded that aggravation is defined as 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. The examiner is advised that a finding that the Veteran's cervical disorder was aggravated due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale is required. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.