Citation Nr: 18132270
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-03 794
DATE:	September 6, 2018
REMANDED
The claim seeking service connection for a lumbar spine disability, to include as secondary to service-connected peripheral artery disease, is remanded.
The claim seeking service connection for hypertension, to include as secondary to service-connected disabilities or as due to presumed in-service Agent Orange exposure, is remanded.
The claim seeking entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 25, 2013 is remanded.
The claim seeking a higher rating for service-connected ischemic heart disease, on an extraschedular basis, is remanded.

REASONS FOR REMAND
The Veteran served on active duty from April 1969 to April 1971, which included approximately one year of service in the Republic of Vietnam.  
This appeal stems from the Veteran’s disagreement with a February 2011 rating decision that assigned an initial 20 percent rating upon granting service connection for ischemic heart disease and with a March 2011 rating decision that denied, inter alia, service connection for hypertension, a lumbar spine disability, and a psychiatric disorder referred to as “bad dreams.”  
In November 2014, the Veteran testified at a Board of Veterans’ Appeals (Board) hearing regarding these matters before the undersigned Veterans Law Judge, and in March 2015, the Board, in pertinent part, denied the Veteran’s ischemic heart disease increased rating claim (on both a schedular and extraschedular basis) and his service connection claims for lumbar spine and psychiatric disorders, and remanded his service connection claim for hypertension further development.  
The Veteran then appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and in November 2015, the parties to this appeal entered into a Joint Motion for Partial Remand (Joint Motion), in which they agreed that a vacatur was warranted for the portions of the March 2015 Board decision that denied the Veteran’s lumbar spine and psychiatric disorder service connection claims and an extraschedular rating for ischemic heart disease.  The parties further determined that a claim seeking a TDIU had been raised as part and parcel of the heart disease increased rating claim on appeal and that this claim was intertwined with the extraschedular increased rating claim.  The Court issued an Order granting this motion in November 2015, and in March 2016, the Board remanded these four claims for development per the mandates of the Joint Motion, as well as the Veteran’s hypertension service connection claim (as the development requested in March 2015 had not yet been fully completed).  Thereafter, a February 2018 rating decision granted service connection for posttraumatic stress disorder, per the Veteran’s claim seeking service connection for related bad dreams, thereby extinguishing the related psychiatric disorder service connection appeal.  The remaining claims remanded per the Joint Motion, as well as the Veteran’s hypertension service connection claim, are now again before the Board for appellate review.  
Given that the Veteran has been in receipt of a 100 percent rating and special monthly compensation pursuant to 38 U.S.C. § 1114(s) since June 25, 2013, the Board has rephrased the Veteran’s TDIU claim accordingly.  
1. Service connection for a lumbar spine disability is remanded.
As referenced above, per the November 2015 Joint Motion, the Board’s March 2015 denial of the Veteran’s claim seeking service connection for his lumbar spine disability was vacated upon the parties’ determination that, given that the Board granted service connection for peripheral artery disease, the Board erred by denying this claim without first obtaining a medical opinion regarding the Veteran’s claimed theory of entitlement, that his lumbar spine disability is etiologically related to his peripheral artery disease.  While the Board subsequently remanded this claim to obtain such a medical opinion, unfortunately, the medical opinion addresses only whether the two diseases are or could be interrelated; however, the Veteran’s contention is not that the two diseases are interrelated, but rather that his February 2009 surgery to treat his peripheral artery disease aggravated his lumbar spine disability.  Accordingly, such a medical opinion must be obtained on remand.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
2. The claim seeking service connection for hypertension, to include as secondary to service-connected disabilities or as due to presumed in-service Agent Orange exposure, is remanded.
As the August 2016 medical opinion regarding the etiology of the Veteran’s hypertension rendered pursuant to the Board’s March 2016 remand directives states there is “NO reliable medical literature which supports a nexus of causation between herbicide [agent] exposure and the diagnosis of hypertension,” the medical opinion inherently fails to consider the conclusion of the National Academy of Sciences Institute of Medicine (NAS) that there is there is limited or suggestive evidence of such a correlation.  Accordingly, a remand is required to obtain a medical opinion that considers this relevant medical study.  See id.
3. The claim seeking entitlement to a TDIU prior to June 25, 2013 is remanded.
Adjudication of the Veteran’s claim seeking a TDIU must be deferred pending the aforementioned required development and subsequent readjudication of his lumbar spine disability and hypertension service connection claims.  
4. The claim seeking a higher rating for service-connected ischemic heart disease, on an extraschedular basis, is remanded.
Likewise, given the parties’ instruction, as reflected in the Joint Motion, that when adjudicating the Veteran’s claim for an extraschedular increased rating for his service-connected heart disease, the Board must consider whether the cumulative impact of the Veteran’s service-connected disabilities warrants such an extraschedular rating, adjudication of this claim must be deferred pending the aforementioned service connection claim development, as well.
The Veteran’s recent outstanding VA treatment records, which may contain information regarding the severity of the Veteran’s service-connected disabilities, should be obtained, as well.
Accordingly, the matters are REMANDED for the following action:
1. Obtain all updated VA treatment records.
2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently-diagnosed lumbar spine disability is at least as likely as not (50 percent or higher probability) (a) proximately due to or (b) aggravated (worsened) by the Veteran’s February 2009 surgery (and/or any subsequent surgery thereafter) performed to treat his service-connected peripheral vascular disease.  Please ensure that the clinician supplies a detailed rationale for the requested opinion.  
3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s currently-diagnosed hypertension is at least as likely as not (50 percent or higher probability) related to the Veteran’s presumed in-service herbicide agent exposure.  When rendering this opinion, please request that the clinician comment on the conclusion of the NAS that there is “limited or suggestive evidence of an association” between herbicide agent exposure and hypertension.  The examiner is also instructed not to rely solely on the regulatory determination that these diseases are not presumptively assumed to be related to herbicide agent exposure and provide a detailed rationale for the opinion. 
4. If the above-requested development results in granting service connection for hypertension and/or a lumbar spine disability, please then obtain a medical opinion from an appropriate clinician regarding whether the Veteran’s service-connected disabilities collectively rendered him unemployable prior to June 25, 2013.  

 
S. BUSH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Nicole L. Northcutt, Counsel

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