Citation Nr: 18124073
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 03-21 703A
DATE:	August 7, 2018
ORDER
Entitlement to service connection for coronary artery disease is granted.
REMANDED
Entitlement to service connection for right eye disability, including retrobulbar eye pain and cataracts, to include as secondary to the service-connected residuals shell fragment wound (SFW) and residual brain trauma with seizures is remanded.
Entitlement to service connection for tinnitus, to include as secondary to the service-connected hearing loss, residual SFW, and residual brain trauma with seizures, is remanded.
Entitlement to service connection for vertigo, to include as secondary to the service-connected residuals SFW and brain trauma with seizures, is remanded.
Entitlement to service connection for gastric ulcer disease and chronic reflux esophagitis, to include as secondary to the service-connected residuals SFW and brain trauma with seizures, is remanded.
Entitlement to service connection for cellulitis, left lower extremity is remanded.
Entitlement to an initial compensable rating for the service-connected hearing loss is remanded.
Entitlement to an increased disability rating for residual numbness and paresthesia of the left lower extremity, rated as 10 percent disabling prior to April 13, 2004, and 40 percent disabling thereafter is remanded.
Entitlement to an increased disability rating for residual paresthesia of the left hand, rated as noncompensable prior to April 13, 2004, and 20 percent disabling thereafter is remanded.
Entitlement to an increased disability rating for a seizure disorder, rated as 10 percent disabling prior to April 13, 2004, and 40 percent disabling thereafter is remanded.
Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), rated as 30 percent disabling prior to April 13, 2004, and 50 percent disabling thereafter is remanded.
FINDINGS OF FACT
1. The Veteran served in the Republic of Vietnam from January 26, 1969 to April 5, 1969.
2. The Veteran’s current heart disability, diagnosed as coronary artery disease, is presumed to be related to his in-service exposure to herbicide agents in Vietnam.
CONCLUSION OF LAW
The criteria for service connection for a heart disability, diagnosed as coronary artery disease, have been met.  38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from April 1968 to April 1970, to include service in the Republic of Vietnam from January 26, 1969 to April 5,1969.  The Veteran was awarded a Purple Heart, a Combat Infantryman Badge, and a Bronze Star Medal with “V” device, among other decorations.  The Veteran passed away in June 2011; the Appellant is his surviving spouse and has been substituted as claimant.
These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).
In September 2006, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing.  A transcript of his testimony is of record.  In a May 2010 correspondence, the Veteran was informed that the VLJ who conducted his hearing was no longer employed at the Board, and was asked if he desired another Board hearing.  He was informed that if he did not respond within 30 days, the Board would assume he did not desire another hearing.  The Veteran did not respond.  
In a January 2007 decision, the Board denied the Veteran’s increased rating claims for residuals of brain trauma with seizures, residual numbness and paresthesia        of the left lower extremity, and residual numbness and paresthesia of the left    upper extremity.  The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In a February 2009 Memorandum Decision, the Court vacated and remanded the claims to the Board for further adjudication.  
In December 2010, the Board remanded the claims for additional development. 
In a January 2018 correspondence, the Appellant was advised that the VLJ who conducted the Veteran’s September 2006 hearing was no longer employed at the Board, and asked if she desired another Board hearing.  In a response that same month, the Appellant indicated that she did not desire another hearing.  
Although the Veteran originally claimed service connection for pericardial effusion and right eye cataracts, treatment records indicate diagnoses of coronary artery disease, right eye cataracts, and right eye retrobulbar eye pain.  Accordingly, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claims have been expanded to include service connection for a heart disability and an eye disability.
Service Connection for a Heart Disability
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2017).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).
Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).
Veterans who, during active military, naval, or air service, served in the Republic of Vietnam or other specified locations from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii) (2017).  
If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), may be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service.  38 C.F.R. §§ 3.307(d), 3.309(e) (2017).  
VA and private treatment records indicate that the Veteran had atherosclerotic changes and was diagnosed with coronary artery disease.  Additionally, as noted above, the Veteran’s DD Form 214 and service personnel records confirm that       he served in the Republic of Vietnam from January 26, 1969 to April 5,1969.  Therefore, he is presumed to have been exposed to herbicide agents, including Agent Orange, during service.  As such, his current heart disability, diagnosed       as coronary artery disease, is presumed to be related to his in-service exposure       to herbicide agents in Vietnam.  Accordingly, service connection for coronary artery disease, is warranted.  38 C.F.R. §§ 3.102, 3.307, 3.309(e).
REASONS FOR REMAND
1. Entitlement to service connection for right eye disability is remanded.
2. Entitlement to service connection for tinnitus is remanded.
3. Entitlement to service connection for vertigo is remanded.
4. Entitlement to service connection for gastric ulcer disease and chronic reflux esophagitis is remanded.
5. Entitlement to service connection for cellulitis, left lower extremity, is remanded.
6. Entitlement to an initial compensable rating for hearing loss is remanded.
7. Entitlement to an increased rating for residual numbness and paresthesia of the left lower extremity is remanded.
8. Entitlement to an increased rating for residual paresthesia of the left hand is remanded.
9. Entitlement to an increased rating for a seizure disorder is remanded.
10. Entitlement to an increased initial for PTSD is remanded.
As noted above, these issues were previously before the Board in December 2010, when they were remanded for additional development.  The Agency of Original Jurisdiction (AOJ) did not issue a supplemental statement of the case (SSOC) addressing the claims prior to returning them to the Board.  Accordingly, a remand for the issuance of an SSOC is required.
The evidence indicates there may be outstanding relevant VA treatment records.   A VA treatment record from November 24, 2010 indicates that the Veteran was to return for follow up appointments in January 2011.  Likewise, a March 2012 rating decision indicates that VA treatment records through January 13, 2011 had been reviewed.  Nevertheless, VA treatment records subsequent December 18, 2010 have not been associated with the claims file.  Additionally, a June 17, 2010        VA treatment record indicates that the Veteran received VA fee basis inpatient treatment at Baptist Medical Center from May 3, 2010 to May 13, 2010.  While a discharge summary from that treatment has been obtained, the underlying inpatient treatment records have not been associated with the claims file.  A remand to obtain the aforementioned records is required.
Regarding the service connection claims for a right eye disability, tinnitus, vertigo, and a gastric ulcer disease with chronic reflux esophagitis, the Board finds that addendum opinions are warranted to address whether these conditions are related to the Veteran’s military service or his service-connected disabilities.  
Regarding the increased rating claims for seizures and residual parasthesia of the left hand and left lower extremity, the December 2010 remand requested a VA neurological examination to determine the nature and frequency of the Veteran’s seizures and the nature and severity of his residual parasthesia.  While the Veteran was afforded a VA neurological examination in January 2011, the examiner did not address all the questions posed in the remand, did not identify the affected nerve in accordance with the rating criteria, and did not provide a rationale in support of the conclusion that the Veteran’s seizures were predominantly minor in nature.  Accordingly, an addendum opinion is required.  
The matters are REMANDED for the following actions:
1. Ask the Appellant to provide the names and addresses of all medical care providers who treated the Veteran for his claimed disabilities prior to his death.  After securing any necessary releases, the AOJ should request any relevant records identified.  In addition, obtain all outstanding fee basis records from Baptist Medical Center and VA treatment records from December 18, 2010 through June 3, 2011.  If any requested records are unavailable, the Appellant should be notified of such.
2. After the above is completed to the extent possible, forward the claims file to an appropriate VA clinician to obtain addendum opinion regarding the Veteran's right eye claim.  Following review of the claims file, the clinician should opine:
(a.) Whether it is at least as likely as not (50 percent probability or greater) that any right eye disability, to include the documented diagnoses    of retrobulbar eye pain and cataracts, had its onset during service or is otherwise related to service.
(b.) Whether it is at least as likely as not (50 percent probability or greater) that the any       right eye disability, to include the documented diagnoses of retrobulbar eye pain and cataracts, was caused by the service-connected residuals SFW and / or brain trauma with seizures.
(c.) If not caused by the service-connected residuals SFW or brain trauma with seizures,         is it at least as likely as not that any right eye disability, to include the documented diagnoses of retrobulbar eye pain and cataracts, was worsened beyond natural progression (aggravated) by his service-connected residuals SFW and brain trauma with seizures?  If the clinician finds that any right eye disability was aggravated by his service-connected residuals SFW and brain trauma with seizures, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the right eye disability.
A complete rationale should be provided for         all opinions and conclusions expressed.  If the clinician cannot provide an opinion without resort to speculation, it is essential that he or she explain why an opinion cannot be provided (i.e. lack of records, limits of medical knowledge, etc.).
3. Forward the claims file to an appropriate VA clinician to obtain an addendum opinion regarding the tinnitus and vertigo claims.  Following review of the claims file, the clinician should identify any condition manifested by dizziness.  The clinician should then opine:
(a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s tinnitus had its onset during service or is otherwise related to service.
(b.) Whether it is at least as likely as not (50 percent probability or greater) that the tinnitus was caused by the service-connected hearing loss, residuals SFW, or brain trauma with seizures.
(c.) If not caused by the service-connected hearing loss, residuals SFW, or brain trauma with seizures, is it at least as likely as not that tinnitus was worsened beyond natural progression (aggravated) by his service-connected hearing loss, residuals SFW, or brain trauma with seizures?  If the clinician finds that tinnitus was aggravated by his service-connected hearing loss, residuals SFW, or brain trauma with seizures, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the tinnitus.
(d.) Whether it is at least as likely as not (50 percent probability or greater) that any condition characterized by dizziness had its onset during service or is otherwise related to service.
(e.) Whether it is at least as likely as not (50 percent probability or greater) that any condition characterized by dizziness was caused by the service-connected residuals SFW or brain trauma with seizures.
(f.) If not caused by the service-connected residuals SFW and brain trauma with seizures,       is it at least as likely as not that any condition characterized by dizziness was worsened beyond natural progression (aggravated) by his service-connected residuals SFW or brain trauma with seizures.  If the clinician finds that any condition characterized by dizziness was aggravated by his service-connected residuals SFW or brain trauma with seizures, the clinician should attempt to quantify the level of aggravation beyond the baseline level of eye disability.
A complete rationale should be provided for all opinions and conclusions expressed.  If the clinician cannot provide an opinion without resort to speculation, it is essential that he or she explain why an opinion cannot be provided (i.e. lack of records, limits of medical knowledge, etc.).
4. Forward the claims file to an appropriate VA clinician to obtain addendum opinions regarding the gastric ulcer disease with chronic reflux esophagitis claim.  Following review of the claims file, the clinician should opine:
(a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s gastric ulcer disease and chronic reflux esophagitis had its onset during service or is otherwise related to service.
(b.) Whether it is at least as likely as not (50 percent probability or greater) that the gastric ulcer disease and chronic reflux esophagitis was caused by the service-connected residuals SFW or brain trauma with seizures, to include any medication taken for those conditions.
(c.) If not caused by the service-connected residuals SFW or brain trauma with seizures,         is it at least as likely as not that his gastric       ulcer disease and chronic reflux esophagitis       was worsened beyond natural progression (aggravated) by his service-connected residuals SFW and brain trauma with seizures, to include any medication taken for those conditions. If the clinician finds that the Veteran’s gastric ulcer disease with chronic reflux esophagitis was aggravated by his service-connected residuals SFW or brain trauma with seizures, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the gastric ulcer disease with chronic reflux esophagitis.
A complete rationale should be provided for all opinions and conclusions expressed.  If the clinician cannot provide an opinion without resort to speculation, it is essential that he or she explain why an opinion cannot     be provided (i.e. lack of records, limits of medical knowledge, etc.).
5. Forward the claims file to a VA neurologist to obtain an addendum opinion regarding the Veteran’s seizures and residual paresthesia of the left hand and left lower extremity.  Following review of the claims file, the clinician should determine, based on the statements of    the Appellant and Veteran, prior objective testing, and the other medical evidence in the file: 
(a.) Whether the Veteran experienced major seizures characterized by the generalized tonic-clonic convulsion with unconsciousness? Please
(b.) Whether the Veteran’s psychomotor seizures qualify as major seizures because they are characterized by automatic states and / or generalized convulsions with unconsciousness?
(c.) Whether the Veteran had minor seizures consisting of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (“pure” petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type)?
(d.) If the Veteran had both major and minor seizures, state which was the predominating type?
(e.) Regarding the Veteran’s residual paresthesia    of the left hand and residual numbness and paresthesia of the left lower extremity, the clinician should identify any nerve involved, e.g., upper radicular group, middle radicular group, lower radicular group, median nerve, ulnar nerve, thoracic nerve, sciatic nerve, external popliteal nerve, musculocutaneous nerve, anterior tibial nerve etc.
(f.) For any affected nerve, indicate whether    there is complete or incomplete paralysis.  For     any incomplete paralysis, the clinician should characterize the severity of that paralysis in terms of mild, moderate, moderately severe, or severe incomplete paralysis.
A complete rationale should be provided for all opinions and conclusions expressed.  If the clinician cannot provide an opinion without resort to speculation, it is essential that he or she explain why an opinion cannot            be provided (i.e. lack of records, limits of medical knowledge, etc.).
6. Thereafter, if the benefits sought on appeal remain denied, the Appellant and her representative should be provided with a supplemental statement of the case.  An appropriate period should be allowed for response before the case is returned to the Board.
 
K. A. BANFIELD
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Anderson, Counsel 

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