judge_norm: MICHELLE L KANE

disposition: dismissed

condition: gi

condition: insomnia

condition: neck

condition: respiratory

condition: fibromyalgia

text:
Citation Nr: 22011000
Decision Date: 02/25/22	Archive Date: 02/25/22

DOCKET NO. 18-01 027
DATE: February 25, 2022

ORDER

Service connection for irritable bowel syndrome (IBS) is dismissed.

Service connection for insomnia is dismissed.

Entitlement to a disability rating greater than 40 percent for a lumbar spine disability is dismissed.

Entitlement to an earlier effective date than October 5, 2016 for the increased rating of 40 percent for a lumbar spine disability is dismissed.

Entitlement to a disability rating greater than 20 percent for a cervical spine disability is dismissed.

Entitlement to an earlier effective date than October 5, 2016 for the increased rating of 20 percent for a cervical spine disability is dismissed.

Entitlement to a disability rating greater than 40 percent for right upper extremity radiculopathy is dismissed.

Entitlement to an earlier effective date than October 5, 2016 for the increased rating of 40 percent for right upper extremity radiculopathy is dismissed.

Entitlement to a disability rating greater than 30 percent for left upper extremity radiculopathy is dismissed.

Entitlement to an earlier effective date than October 5, 2016 for the increased rating of 30 percent for left upper extremity radiculopathy is dismissed.

Entitlement to an initial disability rating greater than 10 percent for left lower extremity radiculopathy is dismissed.

Entitlement to an earlier effective date than October 5, 2016 for the grant of service connection for left lower extremity radiculopathy is dismissed.

Entitlement to an initial compensable rating for a neck surgical scar is dismissed.

Entitlement to an earlier effective date than October 5, 2016 for the assignment of a separate rating for a neck surgical scar is dismissed.

Entitlement to a disability rating greater than 10 percent for gastritis with gastroesophageal reflux disease (GERD) is dismissed.

Entitlement to a compensable disability rating for bilateral hearing loss is dismissed.

Entitlement to a disability rating greater than 10 percent prior to November 14, 2017 and greater than 20 percent thereafter for right lower extremity radiculopathy is dismissed.

Entitlement to an earlier effective date than October 5, 2016 for the grant of service connection for right lower extremity radiculopathy is dismissed.

REMANDED

Service connection for sinusitis is remanded.

Service connection for an autoimmune condition (claimed as fibromyalgia) is remanded.

Service connection for a respiratory disability, to include reactive airway disease (claimed as breathing issues), is remanded.

Service connection for obstructive sleep apnea (OSA) is remanded.

FINDING OF FACT

During the October 2021 Board hearing, the Veteran and his attorney expressly withdrew all appellate issues listed in the Order above.

CONCLUSION OF LAW

The criteria for the withdrawal of the appellate issues listed in the Order above have been met.  38 U.S.C. � 7105(b)(2), (d)(5); 38 C.F.R. � 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1978 to July 1998.  This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified before the undersigned Veterans Law Judge during an October 2021 Board hearing and a transcript is of record.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. � 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. � 19.55.  Withdrawal may be made by the appellant or by an authorized representative.  Id.  Here, during the October 2021 Board hearing, the Veteran and his attorney expressly withdrew all appellate issues listed in the Order above.  The issues being withdrawn were clearly identified at the hearing, and the Veteran and his attorney affirmed their intention to withdraw the issues listed in the Order above.  As there remain no allegations of errors of fact or law for appellate consideration regarding those issues, they are dismissed.

REASONS FOR REMAND

Initially, the Veteran characterized the respiratory disability claim on appeal as one for breathing issues.  Upon review of the evidence, the Board rephrased the claim as service connection for a respiratory disability, to include reactive airway disease (claimed as breathing issues).  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

The service connection claims for sinusitis, an autoimmune condition, a respiratory disability, and OSA are remanded for the following development.

	VA treatment records (all claims): During the Board hearing, the Veteran reported medical care at a VA facility in Georgia.  However, no VA treatment records from that facility are of record.  On remand, the AOJ must associate them with the file.

Moreover, during the Board hearing, the Veteran testified that an unspecified VA provider opined that he suffered vagus nerve complications from a May 2014 surgery for his service-connected cervical spine disability.  He also stated that this provider suggested that the disabilities at issue in this remand are secondary to that reported surgical complication.  However, the only medical evidence of record noting the presence of a vagus nerve condition was an October 2016 private medical evaluation and opinion by Dr. E. regarding the withdrawn / dismissed service connection claim for IBS.  It is unclear what medical evidence Dr. E. relied on to make that finding because the VA and private treatment records currently of record do not reference a vagus nerve condition.  See also November 2017 VA medical opinion (observing the same).  On remand, the RO must ask the Veteran to identify the VA medical facility where his provider reportedly linked the conditions at issue in this remand to his 2014 cervical spine surgery, as these records may substantiate this secondary service connection theory.

	Private treatment records: Regarding the autoimmune condition claim, the Veteran testified during the Board hearing that an unspecified rheumatologist diagnosed him with fibromyalgia after ruling out suspected lupus.  It is unclear if the Veteran was referring to a VA or non-VA rheumatologist, and there are no rheumatology (or any other) medical records in the file competently diagnosing a current autoimmune condition or fibromyalgia.  The RO should attempt to obtain authorization and request any identified non-VA / private medical records relevant to this claim.

Moreover, as discussed above, the Veteran testified during the Board hearing that he suffered vagus nerve complications from a 2014 surgery for his service-connected cervical spine disability, and he contended that the disabilities at issue in this remand are secondary to that alleged surgical complication.  On remand, the Veteran may submit or identify any non-VA medical records that may substantiate this secondary service connection theory (including any that may show the presence of a vagus nerve issue / cervical spine surgery complication).  The RO should attempt to obtain authorization and request any identified non-VA / private records.

	VA examination and medial opinions (OSA claim): The AOJ must obtain a VA examination and medical opinion to address whether the Veteran's current OSA is etiologically related to active service, considering his and his spouse's October 2021 Board testimony recalling his symptoms such as snoring and gasping for air during service.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  The examiner also must address the Veteran's suggestion during the Board hearing that inactivity due to his multiple service-connected disabilities caused or aggravated his obesity, which in turn  was an intermediate step in the etiology of his OSA.  See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020).

	VA addendum medical opinions (respiratory disability and sinusitis claims): In September 2017, the AOJ obtained VA examinations and medical opinions regarding both of these claims.  However, both nexus opinions were inadequate because the rationales were conclusory and based on incomplete consideration of the Veteran's medical history.  In the September 2017 sinusitis opinion, the VA examiner reasoned that "[n]o chronic [sinusitis] condition was found during service."  Likewise, the September 2017 respiratory disability opinion reasoned that there was no chronic respiratory condition diagnosed in service, and his separation exam did not show any respiratory / breathing condition.  However, in both opinions, the examiner failed to address whether several service treatment records (STRs) documenting respiratory issues, such as reoccurring coughing  including at least one March 1998 note that diagnosed sinusitis very soon before separation  may have indicated the onset of sinusitis or another respiratory condition during service.  Moreover, in the sinusitis opinion, the VA examiner reasoned in part that the Veteran was diagnosed with chronic sinusitis in 2017, 19 years after discharge from service.  However, private treatment records show ongoing, post-service respiratory complaints of coughing resuming as early as January 2004, just a few years after service.

In addition, neither of the September 2017 VA medical opinions (regarding both the respiratory disability and sinusitis claims) addressed whether the Veteran's service-connected GERD may cause or aggravate his chronic cough, one of his main respiratory symptoms.  See, e.g., April 2007 VA primary care note ("Pt reports that he has had dry cough for years...Pt reports that he has been [evaluated] for this but no real etiology was found except that it may be triggered by acid reflux from the stomach."); May 2007 VA gastroenterology note (noting pre-EGD diagnoses of chronic cough and GERD); February 2017 sinus and allergy clinic private treatment record (Veteran reported reflux medications helped his constant cough in the past).  On remand, the AOJ must obtain addendum medical opinions to address this secondary service connection theory raised by the evidence of record.

Regarding the respiratory disability claim, evidence of record references a history of childhood asthma.  See September 2017 VA respiratory condition examination (history); see also May 1998 retirement report of medical history.  Since this condition was not noted on entry, the presumption of soundness attaches.  See February 1978 report of medical examination.  Thus, if the VA examiner finds that the Veteran has a current diagnosis of asthma, then the examiner must address: (1) whether his asthma clearly and unmistakably preexisted active service; and (2) whether his asthma clearly and unmistakably was not aggravated by service.  38 U.S.C. � 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  If the answer to either of those questions is no, then the examiner must address whether the evidence is in approximate balance that the Veteran's asthma is etiologically related to service.

The matters are REMANDED for the following action:

1. Send the Veteran and his representative a letter:

(a.) requesting completed release forms that identify all relevant non-VA / private treatment records (e.g., those that may show a current autoimmune condition, claimed as fibromyalgia; or that may substantiate his contention that alleged vagus nerve complications from his May 2014 cervical spine surgery caused or aggravated his conditions at issue in this appeal); and

(b.) asking the Veteran to identify the VA medical facility where a provider reportedly attributed his conditions at issue in this appeal to an alleged vagus nerve complication from his May 2014 cervical spine surgery.

2. Obtain and associate with the file all available VA treatment records from the following facilities:

-	VA Atlanta Health Care System and all associated outpatient clinics, including the Blairsville, GA VA Clinic;

-	any additional records from other VA facilities that the Veteran may identify in response to the letter sent per Step 1 above.

3. After obtaining completed releases from the Veteran, request all outstanding treatment records from any private / non-VA providers that he may identify in completed releases.  Document all records requests and any negative responses.  If any requested records are unavailable, then notify the Veteran and his representative and give them the opportunity to submit the records.

4. Do not proceed with the following instructions until  completing all instructions above (to the extent possible).

5. Schedule a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's current OSA.  The examiner must answer the following questions, with full supporting rationales:

(a.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's current OSA is etiologically related to active service?  Please expressly consider his and his spouse's October 2021 Board testimony (recalling symptoms his such as snoring and gasping for air during his sleep as early as 1990 or 1991, during service).

(b.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's service-connected disabilities (e.g., lumbar spine disability, bilateral upper and lower extremity radiculopathy, right shoulder disability, bilateral elbow disabilities, and left ankle disability) caused OR aggravated (worsened to any degree) his current obesity? Please consider his functional impairments due to these service-connected disabilities, such as limitations on his ability to exercise  see, e.g., October 2021 Board hearing testimony.

(c.) IF AND ONLY the examiner opines that the Veteran's service-connected disabilities caused OR aggravated his obesity, then the examiner must answer the following questions:

i.	Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's obesity (which was caused OR aggravated by his service-connected disabilities) was a substantial factor in causing his current OSA?

ii.	Is the evidence in approximate balance (i.e., nearly equal) that that his current OSA would not have occurred, but for his obesity (which was caused OR aggravated by his service-connected disabilities)?

The examiner must note his or her review of the complete claims file, including this remand.  If any requested finding is not possible without speculation, then the examiner must explain why.

6. Forward the claims file to the September 2017 sinusitis VA examiner (or another examiner if that person is unavailable) for addendum medical opinions.  The examiner must answer the following, with full rationales:

(a.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's current sinusitis is etiologically related to active service? Please expressly consider: several STRs documenting frequent complaints and treatment of respiratory issues such as reoccurring coughing, and at least one diagnosis of sinusitis soon before separation (see March 1998 STR); ongoing complaints of coughing continuing just a few years after service (see January-to-mid-2004 private treatment records).

(b.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's service-connected GERD caused OR aggravated (worsened to any degree) his sinusitis? Please expressly consider: April 2007 VA primary care note ("Pt reports that he has had dry cough for years...Pt reports that he has been [evaluated] for this but no real etiology was found except that it may be triggered by acid reflux from the stomach."); May 2007 VA gastroenterology note (noting pre-EGD diagnoses of chronic cough and GERD); February 2017 sinus and allergy clinic private treatment record (Veteran reported reflux medications helped his constant cough in the past).

The examiner must note his or her review of the complete claims file, including this remand.  If any requested finding is not possible without speculation, then the examiner must explain why.

If the VA examiner cannot answer any of the above questions without another examination, then the RO must schedule one.

7.  Forward the claims file to the September 2017 respiratory conditions VA examiner (or another examiner if that person is unavailable) for addendum medical opinions.  The examiner must answer the following, with full rationales:

(a.) List all current respiratory disabilities from 2016 through present.

(b.) If the Veteran has a current diagnosis of asthma, please address whether that condition: (1) clearly and unmistakably preexisted service; AND (2) clearly and unmistakably was NOT aggravated by service.  Please expressly consider his May 1998 retirement report of medical history (noting history of childhood asthma, no complications no sequelae) and several STRs documenting complaints and treatment of respiratory issues (e.g., reoccurring cough).

If the answer to either of the above questions (b.)(1) or (2) is no, then the examiner must answer the following question in (c.) as to all current respiratory disabilities, including asthma.  If the answer to both of the above questions is yes, then the examiner need not answer the following question in (c.) as to asthma only.*

(c.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's current respiratory disabilities are etiologically related to active service?

*The examiner must answer this question as to all current respiratory disabilities other than asthma; see note in (b.) above specifying when the examiner should answer this question as to asthma.

Please expressly consider: several STRs documenting frequent complaints and treatment of respiratory issues, including reoccurring coughing; ongoing complaints of coughing continuing just a few years after service (see January-to-mid-2004 private treatment records).

(d.) Is the evidence in approximate balance (i.e., nearly equal) that the Veteran's service-connected GERD caused OR aggravated (worsened to any degree) any of his current respiratory disabilities? Please expressly consider: April 2007 VA primary care note ("Pt reports that he has had dry cough for years...Pt reports that he has been [evaluated] for this but no real etiology was found except that it may be triggered by acid reflux from the stomach."); May 2007 VA gastroenterology note (noting pre-EGD diagnoses of chronic cough and GERD); February 2017 sinus and allergy clinic private treatment record (Veteran reported reflux medications helped his constant cough in the past).

The examiner must note his or her review of the complete claims file, including this remand.  If any requested finding is not possible without speculation, then the examiner must explain why.

If the VA examiner cannot answer any of the above questions without another examination, then the RO must schedule one.

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Janofsky, 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.


series: legacy

judge_norm: K STANTON

judge_role: Acting Veterans Law Judge

disposition: remanded

condition: back

condition: ptsd

text:
Citation Nr: 22012000
Decision Date: 03/02/22	Archive Date: 03/02/22

DOCKET NO. 14-37 898
DATE: March 2, 2022

REMANDED

Entitlement to service connection for a cervical spine disorder is remanded.

Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and/or coronary artery disease (CAD), and/or medications taken for service-connected disabilities, is remanded.

Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1969 to May 1972, to include service in the Republic of Vietnam.  He died in November 2019, and the appellant is his surviving spouse who was accepted as a substitute claimant for the purpose of processing this appeal to its completion in August 2020.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2015 and June 2017 by a Department of Veterans Affairs (VA) Regional Office (RO).

In May 2019 and July 2021, the Board remanded the case for additional development and it now returns for further appellate review.

1. Entitlement to service connection for a cervical spine disorder.

Prior to his death, the Veteran contended that he had a cervical spine disorder that had its onset during his military service, and the condition worsened over the years. Specifically, he alleged his symptoms began in June 1970 in Vietnam, unloading and carrying shell ammunition supplies.  Additionally, the Veteran indicated that he injured his back in a car accident in March 1972, and believed his neck condition was due to such injury.  See June 2021 Appellate Brief.

Pursuant to the most recent remand, an addendum opinion was obtained in October 2021.  At such time, after a review of the record, the VA examiner opined the Veteran's cervical spine disorder, diagnosed as cervical strain, spondylolisthesis, and stenosis, was less likely than not related to his military service.  As rationale for the opinion, the examiner stated there was no evidence in the Veteran's service treatment records (STRs) documenting a chronic or recurrent cervical spine condition including spondylolisthesis or spine stenosis.

Upon review, the Board finds the October 2021 VA medical opinion insufficient for the purpose of determining entitlement to service connection.  First, the opinion does not reflect consideration of the Veteran's lay statements regarding his in-service injuries in June 1970 and March 1972, and continuity of, and treatment for, associated symptoms since such incidents until his death as directed in the July 2021 Board remand instructions.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran's report of in-service injury but relied on the service medical records to provide a negative opinion).  Second, the examiner opines the Veteran's spondylolisthesis and/or spine stenosis are not documented in his STRs, without consideration that the conditions progressively worsened over time as claimed by the Veteran.

Thus, the Board finds an additional remand is warranted for an addendum opinion.

2. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD and/or CAD, and/or medications taken for service-connected disabilities.

The Veteran contended his hypertension had its onset during his military service (to include as due to exposure to herbicide agents), was secondary to his service-connected PTSD and/or CAD, and/or was due to medications that he took for his service-connected disabilities.  As an initial matter, the Board notes STRs reflect a blood pressure reading of 138/70 at his January 1972 separation examination, which, under current guidelines, is elevated.  However, for VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 U.S.C. � 4.104, Diagnostic Code 7101, Note 1.  The Board further notes the record reflects that the Veteran served in the Republic of Vietnam from June 1970 to March 1971 and, thus, was exposed to herbicide agents.

Pursuant to the most recent remand, an addendum opinion was obtained in October 2021.  At such time, after a review of the record, the VA examiner opined the Veteran's hypertension was at least as likely as not caused by the Veteran's military service, specifically his Agent Orange exposure.  As rationale for the opinion, the examiner cited a 2016 article that analyzed hypertension risk in Army Chemical Corp Veterans (ACC) who sprayed defoliant in Vietnam.  Later that month, the examiner offered addendum opinions in which he opined, "all that can be stated is that studies have shown Agent Orange exposure increases the risk of developing hypertension... [and the previously cited] journal article is an epidemiologic study that noted this correlation. It should be noted that correlation does not equal causation."  In his second addendum opinion, the examiner stated the Veteran's hypertension was not caused by the Veteran's service-connected disabilities, to include PTSD and CAD.  Further, he stated that, "studies have only shown a correlation with Agent Orange exposure and hypertension. There are no randomized trials to establish causation. Therefore, I can only state that is a likely factor the AO exposure may have contributed to development of hypertension, but there is no conclusive evidence that AO caused hypertension as a single stand-alone risk factor. Hypertension is usually caused by underlying insulin resistance, which may have been the cause for this Veteran."

Upon review, the Board finds the October 2021 VA medical opinions insufficient for the purpose of determining entitlement to service connection.  In this regard, in his original opinion, the examiner relied on a study that involved a specific category of Veterans who were in sustained, direct contact with herbicides while spraying defoliants.  Thus, such is not representative of all Vietnam veterans, nor this Veteran, who did not serve in the Army Chemical Corps.  In addition, in his addendum opinions, the examiner used speculative language, i.e. "may have caused," in his rationales.  See Hood v. Shinseki, 23 Vet. App. 295, 298 (2009).  He further applied an incorrect standard of proof.  Specifically, he stated, "there is no conclusive evidence that AO caused hypertension as a single stand-alone risk factor," which is higher than the "at least as likely as not" requirement for solving an issue in favor of the claimant.  Moreover, while stating the Veteran's hypertension was not caused by his service-connected disabilities, he did not offer a rationale or discuss the medical articles cited by the appellant's representative in his June 2021 and February 2022 appellate briefs, that suggest a link between PTSD, CAD, and hypertension.  Lastly, the examiner did not opine on whether the Veteran's hypertension was aggravated by his service-connected PTSD and/or CAD, or whether any medications prescribed for the Veteran's service-connected disabilities caused or aggravated his hypertension.

Consequently, the Board finds that a remand is necessary in order to obtain a new VA medical opinion that addresses the foregoing matters.

3. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected PTSD.

The Veteran contended he had obstructive sleep apnea (OSA) or other sleep disorder that was either directly related to service, and/or secondary to his service-connected PTSD.

Pursuant to the most recent remand, an addendum opinion was obtained in October 2021.  At such time, after a review of the record, the VA examiner opined the Veteran's diagnosed obstructive sleep apnea was less likely than not related to his military service.  He further opined that the Veteran's obstructive sleep apnea was less likely than not proximately due to, or aggravated by, the result of his service-connected disabilities.  In support thereof, he stated there was no evidence of a diagnosis or treatment of OSA in the Veteran's STRs.  Further, he noted that, prior to his death, the Veteran had clear documentation of metabolic syndrome (insulin resistance) manifested as obesity, hypertension, coronary artery disease, and hyperlipidemia.  Metabolic syndrome is caused by excessive carbohydrate ingestion (especially processed foods, sugar, fructose and seed oils).  Additionally, the examiner indicated that, based on a review of the veteran's medical records, there was no evidence documenting that the Veteran's service-connected disabilities directly or indirectly caused obstructive sleep apnea; and there was no plausible pathophysiologic mechanism discussed in the medical literature and known medical principles that would explain such a causal relationship between such conditions.  The examiner concluded that, more likely than not, the underlying cause of the Veteran's OSA was his metabolic syndrome.

Similar to above, the Board finds the October 2021 VA medical opinion insufficient for the purpose of determining entitlement to service connection.  In this regard, in determining that the Veteran's OSA was not secondary to his service-connected PTSD, the examiner failed to consider the medical studies cited by the appellant's representative in his June 2021 and February 2022 appellate briefs, which indicate a high prevalence of OSA in psychiatric patients, particularly those with PTSD, as directed in the July 2021 Board remand.  Further, the examiner did not address the second prong of secondary service connection, i.e., aggravation.  See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under � 3.310(b)).

Thus, the Board finds an additional remand is warranted for an addendum opinion.

The matters are REMANDED for the following action:

1. Forward the record, to include a copy of this Remand, to an appropriate clinician other than the VA examiner who provided the October 2021 opinion to obtain an addendum opinion addressing the etiology of the Veteran's cervical spine disorder.

Following a review of the record, the examiner should offer an opinion as to whether the Veteran's cervical spine disorder at least as likely as not (i.e., a 50 percent or greater probability) had its onset in, or was otherwise related to military service, to include his credible reports of injuring his neck in June 1970 while unloading and carrying ammunition in Vietnam, his documented in-service March 1972 car accident in which he injured his back, and assertions of progressively worsening neck pain since that time.

The examiner is advised that the sole basis of a negative nexus opinion may not be the fact that the Veteran's STRs are negative for complaints, treatment, or a diagnosis of a cervical spine disorder.  Thus, the examiner must consider and address the Veteran's statements regarding the onset and continuity of symptomatology.

A rationale for any opinion offered should be provided.

2. Forward the record, to include a copy of this Remand, to an appropriate clinician other than the VA examiner who provided the October 2021 opinion to obtain an addendum opinion addressing the etiology of the Veteran's hypertension.  Following a review of the record, the examiner should address the following inquiries:

(A) Is it at least as likely as not (i.e., a 50 percent or greater probability) the Veteran's hypertension had its onset in, or was otherwise related to, his military service, to include his acknowledged in-service exposure to herbicide agents, or manifested within one year of his separation from service (by May 1973)?

In offering such opinion, the clinician should clearly address the National Academy of Science (NAS) Institute of Medicine (IOM) Update 11 (2018) in which hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association.  In this regard, 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.

(B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension was caused or aggravated by his service-connected PTSD and/or CAD, and/or the medications prescribed for his service-connected disabilities?  For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology.

The Veteran is service-connected for the following: PTSD, CAD, lumbar spine strain, bilateral lower extremity radiculopathy, tinnitus, and gastroesophageal reflux disease.

In offering such opinion, the examiner should specifically discuss the January 2015 medical opinion stating that hypertension is caused by conditions that affect the arteries and heart, and whether that indicates that coronary artery disease had caused or aggravated the Veteran's hypertension, as well as medical articles cited in the appellant's representative's briefs submitted in June 2021 and February 2022 supporting a link between hypertension and herbicide exposure, and suggesting a relationship between PTSD, CAD, and hypertension.

The examiner is advised that the sole basis of a negative nexus opinion may not be the fact that the Veteran's STRs are negative for complaints, treatment, or a diagnosis of hypertension.  Thus, the examiner must consider and address the Veteran's statements regarding the onset and continuity of symptomatology.

A rationale for any opinion offered should be provided.

3. Forward the record, to include a copy of this Remand, to an appropriate clinician other than the VA examiner who provided the October 2021 opinion to obtain an addendum opinion addressing the etiology of the Veteran's obstructive sleep apnea.

Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected PTSD.  For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology.

In offering such opinion, the examiner should specifically discuss the December 2015 private medical opinion stating that PTSD had aggravated the Veteran's obstructive sleep apnea and that medical studies, including those cited in the appellant's representative's appellate briefs submitted in June 2021 and February 2022, support a link between psychiatric disorders, obesity, and sleep apnea.

A rationale for any opinion offered should be provided.

K. STANTON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. M. Kelly, 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.


judge_norm: SHEREEN M MARCUS

judge_role: Veterans Law Judge

disposition: granted

condition: knee

condition: psychiatric

condition: hip

text:
Citation Nr: 22013000
Decision Date: 03/08/22	Archive Date: 03/08/22

DOCKET NO. 19-09 951
DATE: March 8, 2022

ORDER

As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for left knee strain is reopened, and to that extent only, the appeal is granted.

As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for gout, left foot is reopened, and to that extent only, the appeal is granted.

Entitlement to service connection for an acquired psychiatric condition, variously diagnosed as depression, major depressive disorder, (MDD), and anxiety, secondary to service-connected cervical spine degenerative disc disease (DDD), lumbar spondylolysis with intervertebral disc syndrome (IVDS), and right and left ankle strains with degenerative arthritis, is granted.

REMANDED

Service connection for all left foot conditions, to include gout, is remanded.

Service connection for a left knee disability is remanded.

Service connection for a right knee disability is remanded.

Service connection for a left hip condition is remanded.

Service connection for a right hip condition is remanded.

FINDINGS OF FACT

1. In an unappealed February 2014 rating decision, the RO denied service connection for left knee strain because the evidence did not show the condition was related to service or secondary to a service-connected disability, and also denied service connection for gout, left foot, because it was not related to service.

2. Additional evidence received since the February 2014 final rating decision, including nexus opinions regarding the left knee and gout, is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claims of service connection for left knee strain and gout, left foot, and raises a reasonable possibility of substantiating the claims.

3. The persuasive evidence of record associate the Veteran's acquired psychiatric conditions, variously diagnosed as depression, MDD, and anxiety, as secondarily due to service-connected cervical spine DDD, lumbar spondylosis with IVDS, and right and left ankle strains with degenerative arthritis.

CONCLUSIONS OF LAW

1. The RO's February 2014 rating decision denying service connection for left knee strain and gout, left foot, is final.  38 U.S.C. � 7105; 38 C.F.R. �� 20.200, 20.201, 20.1103.

2. New and material evidence has been submitted to reopen the claim for service connection for left knee strain.  38 U.S.C. �� 1110, 7105; 38 C.F.R. �� 3.303, 3.156, 20.1103.

3. New and material evidence has been submitted to reopen the claim for service connection for gout, left foot.  38 U.S.C. �� 1110, 7105; 38 C.F.R. �� 3.303, 3.156, 20.1103.

4. The criteria for entitlement to service connection for an acquired psychiatric condition, variously diagnosed as depression, MDD, and anxiety, secondary to service-connected cervical spine DDD, lumbar spondylolysis with IVDS, and right and left ankle strains with degenerative arthritis, have been met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 2002 to November 2006.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO).

A hearing before the Board occurred in July 2021, a transcript of which has been associated with the claims file and reviewed.  Following the hearing, additional evidence was associated with the claims file that has yet to be reviewed by the RO in the first instance.  A waiver of Agency of Original Jurisdiction (AOJ) review has not been received, but in light of the favorable outcome here the Board finds no harm in reviewing said evidence.  Additionally, the remaining claims addressed within this decision are being remanded for further development during which the RO will have the opportunity to review the evidence in the first instance prior to readjudication.

The Board notes the RO failed to decide whether to reopen the claims of service connection for left knee strain or gout, left foot which were both previously denied in a February 2014 rating decision.  The Board is obligated to consider the issue of new and material evidence and make an independent determination.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  Accordingly, the issues have been appropriately recharacterized above.

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

1. As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for left knee strain is reopened, and to that extent only, the appeal is granted.

2. As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for gout, left foot is reopened, and to that extent only, the appeal is granted.

Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C. �� 7104, 7105.  The exception to this rule is 38 U.S.C. � 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156(a).

The Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. � 3.156(a) as creating a low threshold and has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).  The regulation is designed to be consistent with 38 C.F.R. � 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Id.  For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  See Shade, 24 Vet. App. at 118.

In this case, the RO denied service connection for left knee strain and gout, left foot, in a February 2014 rating decision.  At the time, the RO found that the evidence did not show that left knee strain was related to service nor caused or aggravated by a service-connected disability.  The RO also found that the evidence did not show that gout, left foot, was related to service.  The RO notified the Veteran of its decision and the Veteran's appellate rights.  The Veteran did not initiate an appeal of the RO's decision within one year nor submit additional evidence within one year of the RO's decision.  As a result, the RO's February 2014 rating decision became final.  Thus, the Veteran's service connection claims for the left knee and gout, left foot, may only be considered on the merits if new and material evidence has been received since the time of the prior adjudication.

The Veteran filed a petition to reopen the claims in November 2017 contending that the additional evidence of record since the February 2014 rating decision is new and material.  As will be discussed in more detail below, the Board agrees and finds reopening of both claims is warranted.  The Board also notes as part of the November 2017 petition to reopen, the Veteran filed service connection for multiple disabilities including the right knee.  The prior February 2014 final rating decision denied only left knee strain, but not the "bilateral knees."  Therefore, according to the Court's holding in Grimes v. McDonough, 34 Vet. App. 84 (2021), new and material evidence is needed to reopen only the left knee claim, as the right knee is factually distinct.

Evidence of record at the time of the February 2014 rating decision included, service treatment records, a report of general information, post-separation treatment records, and a VA examination of record noting a diagnosis of bilateral knee strain that was less likely than not caused by a bilateral ankle condition.

Additional evidence of record added to the claims file after the February 2014 rating decision included additional post-separation treatment records, a VA examination pertaining to the left knee as well as gout, left foot, Veteran testimony, buddy statements regarding the pain and limitations that the Veteran experiences, and a secondary service connection theory of entitlement regarding gout, left foot.  The VA examination regarding gout, left foot, included a secondary service connection opinion.  The left knee VA examination included a diagnosis of left knee strain with an additional secondary service connection opinion.

Both of the additional VA examinations relate to previously unestablished elements of service connection.  Additionally, regarding gout, left foot, secondary service connection presents an alternate theory of entitlement.  Thus, for the purposes of reopening, the additional evidence is both "new" and "material" as it is not duplicative, not cumulative, and raises a reasonable possibility of substantiating the Veteran's service connection claims for left knee strain and gout, left foot.

Based on the above, the Veteran's claims of service connection for left knee strain and gout, left foot, are reopened.

3. Entitlement to service connection for an acquired psychiatric condition, variously diagnosed as depression, MDD, and anxiety, secondary to service-connected cervical spine DDD, lumbar spondylolysis with IVDS, and right and left ankle strains with degenerative arthritis, is granted.

The Veteran contends he has a psychiatric condition secondary to the pain caused by service-connected cervical spine DDD, lumbar spondylolysis with IVDS, and right and left ankle strains with degenerative arthritis.  The Board finds secondary service connection for an acquired psychiatric condition, variously diagnosed as depression, MDD, and anxiety, is warranted.

Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty.  38 U.S.C. � 1110; 38 C.F.R. � 3.303(a).  In the event a Veteran has at least one service-connected disability, he or she may be entitled to benefits based on a secondary service connection.  In order to establish a secondary service connection, the Veteran must show: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or aggravated beyond its natural progression by a service-connected disability.  38 C.F.R. � 3.310; Allen v. Brown, 7 Vet. App. 439, 444 (1995).

At the outset, the Board notes the Veteran previously filed for service connection for posttraumatic stress disorder (PTSD) which was denied in a final February 2014 rating decision finding that the condition had not been diagnosed.  Thereafter in November 2017 the Veteran filed a claim for secondary service connection for anxiety and depression secondary to service connected cervical spine DDD, and right and left ankle strains with degenerative arthritis.  The nature and contentions of these claims are separate and distinct.  Indeed, the Veteran's previous service connection claim for PTSD related to events during service.  The Veteran's November 2017 claim, however, only relates to a secondary theory of entitlement based on pain caused by service-connected conditions.  Moreover, the record lacks any contentions after November 2017 that the Veteran was seeking to reopen service connection for PTSD.  While the Board is aware of a buddy statement discussing events during service, the Veteran has not contended nor do treatment records reflect he has a current diagnosis of PTSD.  Of great significance, during the July 2021 Board hearing, neither the Veteran nor his representative sought to reopen service connection for PTSD.  The February 2014 rating decision denying service connection for PTSD did so because the Veteran lacked a diagnosis.  It has not been contended, nor does the record reflect a diagnosis has since been made.

In general, a claim is not necessarily limited in scope to a single or particular diagnosis and should be construed "based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim."  Clemons v. Shinseki, 23 Vet. App. 1, 3 (2009).  Here, finality of the February 2014 rating decision attached to only PTSD.  Thus, analysis of whether new and material evidence has been received for anxiety and depression is unnecessary as this claim is separate and distinct including based on an entirely different theory of entitlement.  See Grimes, 34 Vet. App. 84 (holding when there is a prior final agency decision denying a particular diagnosis, then new and material evidence is only required for the one particular diagnosis, and not the umbrella of any and all diagnoses within the scope of the claim).  The Board finds that, unlike the appellant in Grimes, the Veteran's actions and filings in this case reflect an intent to seek compensation for only anxiety and depression secondary to service-connected cervical spine DDD, and right and left ankle strains with degenerative arthritis.  Therefore, the Board will not address service connection for PTSD herein.

Turning to the relevant evidence of record regarding secondary service connection, treatment records in 2013 reference diagnoses of mood disorder NOS and anxiety disorder NOS.  See July 2013 VA treatment records.

The Veteran was afforded a VA examination regarding posttraumatic stress disorder in February 2014 wherein the examiner noted a diagnosis of unspecified anxiety disorder without a nexus opinion.  See February 2014 VA examination.

A non-VA provider found in November 2017 that the Veteran had diagnoses of dysthymic disorder, unspecified anxiety disorder, and somatic symptom disorder with predominant pain.  See November 2017 treatment records.  The provider opined that the Veteran's somatic symptom disorder with predominant pain was at least as likely as not the result of chronic ankle pain with associated limitations.  The provider reasoned that the Veteran is distressed and irritable when his pain level increases, and his self-esteem is low because he walks with a cane.

The Veteran was afforded a VA examination in December 2017 wherein the examiner noted a diagnosis of unspecified depressive disorder with anxious distress.  See December 2017 VA examination.  The examiner opined that he would have to resort to mere speculation to opine if the Veteran's diagnosis was proximately due to or the result of left and right ankle conditions.  The examiner reasoned that the Veteran reported experiencing post-military stressors related to work and parental responsibilities.  Additionally, the Veteran completed two tests with the results from one indicating feigning symptoms and the other reflective of "significant over report of symptoms."

VA treatment records in July 2019 note that the Veteran experiences chronic pain in the neck, ankles, left hip, and low back which contributes to moderate symptoms of depression.  See July 2019 VA treatment records.

The Veteran testified during the July 2021 Board hearing to experiencing psychiatric symptoms related to his pain.  This testimony is corroborated by additional lay statements of record referencing psychiatric symptoms related to fluctuations in pain.

Following the hearing, the Veteran submitted additional evidence of another non-VA provider assessment and opinion.  The provider noted a diagnosis of recurrent and moderate major depressive disorder with moderate anxious distress with cervical spine, bulging disc, sciatic, arthritis, bilateral ankle issues, and severe chronic pain being relevant to the understanding or management of the Veteran's MDD.  See October 2021 examination.  The provider opined that the Veteran has severe anxiety and depression secondary to his service-connected bilateral ankles, neck, and spine, all of which cause significant chronic pain.  See September 2021 opinion.  While the provider discussed symptoms related to service, he then went on to state that the Veteran's symptoms of depression and anxiety gradually worsened as his physical health concurrently declined over the same period.  He explained that the Veteran suffered greater amounts of pain in his back and neck as well as neuropathy ultimately leading to treatment from a pain management specialist.  Simultaneously, the Veteran's ankle condition also worsened eventually leading to surgery.  The provider explained that severe symptoms of depression and anxiety reportedly persist in the Veteran's current state secondary to physical problems including chronic pain and functional difficulties secondary to service-connected conditions.  In terms of anxiety, the examiner explained that the Veteran has excessive worry about what other individuals think of him secondary to his physical condition and functional problems.  Difficulties completing his job and / or even simple tasks also are sources of prolonged anxiety.

The provider acknowledged that there was subtle over-reporting of some problems and concerns, but found it was likely the result of his overwhelmed state, multiple significant medical problems, and the severity of his current mental illness.  The provider explained that the results from the 2021 examination were valid and reliable unlike those from the 2017 VA examination.  The provider also explained that while the Veteran was diagnosed with somatic symptom disorder in 2017, the diagnosis would assume that the Veteran's reaction to his physical symptoms was not normal when research "repeatedly suggest severe and persistent chronic pain would have a significant impact on patients' psychiatric status" including the types of symptoms of depression and anxiety experienced by the Veteran.

VA treatment records in December 2021 note that the Veteran has mood disorder "most likely resulting from chronic pain with depressive features."  See December 2021 VA treatment records.

Based on the evidence of record, the Board finds secondary service connection for an acquired psychiatric condition, variously diagnosed as depression, MDD, and anxiety, secondary to service-connected cervical spine DDD, lumbar spondylolysis with IVDS, and right and left ankle strains with degenerative arthritis is warranted.  The Veteran has multiple diagnoses of record including depression and anxiety with MDD most recently under the DSM-V.  The Board notes all of the examinations of record indicate the Veteran has some variation of those listed diagnoses.  The Board finds highly probative the September 2021 non-VA provider's opinion that the Veteran's psychiatric conditions are secondary to pain caused by service-connected cervical spine DDD, lumbar spondylolysis with IVDS, and right and left ankle strains with degenerative arthritis as it included a rationale in support thereof and is corroborated by the evidence of record.  Indeed, the Veteran's treatment records in 2019 indicate that the conditions contributed to symptoms of depression and 2021 treatment records note the Veteran's mood disorder "most likely result[ed] from chronic pain with depressive features."  The Veteran's lay statements also indicate symptom severity related to fluctuating pain.

While July 2019 VA treatment records attributed symptoms of depression to the Veteran's non-service-connected left hip, the Board finds most probative the 2021 non-VA provider's opinion which only addressed service-connected conditions.  Additionally, the July 2019 VA treatment record also referenced the neck, ankles, and low back, all of which are service-connected.  Of note, the 2017 VA examiner failed to address aggravation.  The Board is aware that the 2017 VA examiner opined that the Veteran's results were invalid and therefore it would be speculation to render an opinion addressing causation.  The Board, however, finds most probative the 2021 non-VA provider's opinion that the most recent results were valid and that while there was subtle over-reporting of some problems and concerns, it was likely the result of his overwhelmed state, multiple significant medical problems, and the severity of his current mental illness.

Accordingly, based on the evidence of record, the Board finds service connection for an acquired psychiatric condition, variously diagnosed as depression, MDD, and anxiety, secondary to service-connected cervical spine DDD, lumbar spondylolysis with IVDS, and right and left ankle strains with degenerative arthritis is warranted.

REASONS FOR REMAND

1. Service connection for all left foot conditions, to include gout, is remanded.

2. Service connection for a left knee disability is remanded.

3. Service connection for a right knee disability is remanded.

4. Service connection for a left hip condition is remanded.

5. Service connection for a right hip condition is remanded.

The Veteran contends he has bilateral knee and hip disabilities as well as gout that are secondary to service-connected right and left ankle strains with degenerative arthritis.  The Board finds the evidence of record insufficient to resolve his claims.

The Veteran was afforded a VA examination regarding all of these claims in December 2017 to determine whether the Veteran's contended disabilities are caused or aggravated by service-connected right and left ankle strains with degenerative arthritis.  In each of the opinions obtained, however, the examiner only provided a rationale in support of a causation opinion.  Indeed, none of the opinions obtained addressed whether the contended disabilities are at least as likely as not aggravated by service-connected right and left ankle strains with degenerative arthritis.  Thus, remand is necessary to obtain an opinion addressing aggravation specifically.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013).

Regarding the left knee, the Board notes following the rating decision on appeal, service-connection for left lower extremity radiculopathy associated with lumbar spondylolysis with IVDS was granted.  Treatment records reference the Veteran experienced pain through his left knee.  Thus, upon remand, the examiner should differentiate, if possible, between any radiculopathy associated with lumbar spondylolysis with IVDS and any other left knee disabilities.

Regarding the left foot, the Veteran sought service connection for gout secondary to service connected right and left ankle strains with degenerative arthritis.  Upon review, treatment records reference gout as well as other symptoms of pain and swelling.  The VA examination was limited specifically to gout as evidenced by the examiner's finding that there was a diagnosis of gout "per history" but the current symptoms were inconsistent with gout attack.  The examiner did not assess any other left foot disabilities.  During the Board hearing, the Veteran requested to expand the claim to include any left foot condition, to include gout.  Thus, under Clemons, the issue has been appropriately recharacterized above.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  As such, upon remand, consideration should be given to any left foot condition, to include gout.

Regarding the right hip, the Veteran has also contended that his right hip disability is secondary to his left hip disability.  As service connection for a left hip disability is being remanded herein for additional development, service connection for the right hip disability is also remanded as inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The Board is aware of the Veteran's contentions regarding the previous VA examination location and shortcomings related thereto.  In response, the remand instructions below will be directed to a different VA examination facility.

Accordingly, these claims are remanded for additional development.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination before an appropriate clinician at a different VA facility than in 2017 for his claimed left foot conditions, to include gout, left and right knee disabilities, and left and right hip disabilities.  The entire claims file and this remand should be made available for review.  The examiner should render an opinion, including rationale, addressing the following:

(a.) Whether the Veteran has any left foot conditions, to include gout, that are caused or aggravated by service-connected right and left ankle strains with degenerative arthritis.

In so opining, the examiner is directed to address and consider the Veteran's lay statements and treatment records referencing gout, swelling, and pain in the left foot as well as the Veteran's lay statements of changes in gait due to service-connected right and left ankle strains with degenerative arthritis.

(b.) Whether the Veteran has a left and / or right knee disability that was aggravated by service-connected right and left ankle strains with degenerative arthritis.

In so opining, the examiner is directed to address and consider the Veteran's lay statements of changes in gait due to service-connected right and left ankle strains with degenerative arthritis.  The examiner is also asked to differentiate if possible, between any radiculopathy associated with lumbar spondylolysis with IVDS and any other left knee disabilities.

(c.) Whether the Veteran has a left hip and / or right hip condition that was aggravated by service-connected right and left ankle strains with degenerative arthritis.

In so opining, the examiner is directed to address and consider the left hip diagnosis of cam femoral acetabular impingement and the Veteran's lay statements of changes in gait due to service-connected right and left ankle strains with degenerative arthritis.

i.	If, and only if, service connection for a left hip condition is granted, then whether the Veteran has a right hip condition that was caused or aggravated by a left hip condition.

If any diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below.

The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. � 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability.  Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence."  See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019).

The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate.

If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include 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.

2. After the above development, and any other development deemed necessary, readjudicate the claims.

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.C. Allen, 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.


judge_norm: CYNTHIA M BRUCE

text:
Citation Nr: 22014000
Decision Date: 03/11/22	Archive Date: 03/11/22

DOCKET NO. 17-31 867
DATE: March 11, 2022

REMANDED

1. Entitlement to service connection for a neck condition is remanded.

2. Entitlement to service connection for a low back condition is remanded.

3. Entitlement to service connection for a right-hand condition is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1987 to September 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file.

The claims were previously remanded by the Board in January 2020, June 2020, and May 2021. In May 2021, the Board remanded the issues on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Although new opinions were added to the claims file pursuant to the May 2021 Board remand, another remand is necessary to address deficiencies in said opinions. As such, substantial compliance has not been achieved.

1. Entitlement to service connection for a neck condition is remanded.

The Veteran contends he is entitled to service connection for a neck condition. Specifically, the Veteran contends he began experiencing neck pain after being involved in a motor vehicle accident (MVA) while on active duty. See Hearing Transcript pg. 3.

Service treatment records (STRs) include notes detailing the Veteran's MVA during active-duty service. See June 1990 STR.

In October 2008, the Veteran complained of chronic neck pain that prevents him from exercising. The private examiner noted an impression of chronic neck pain and performed an MRI on the Veteran's C-spine. The test revealed a mild bulged disc. A July 2009 private evaluation note includes the Veteran's report of neck pain radiating down the right arm into the right hand causing numbness and tingling into the right hand. December 2012 C-spine MRI revealed osteophyte formation and bulging narrowing at C5/C6, which was noted to be suggestive of musculoskeletal strain. A March 2013 C-spine MRI revealed C5-6 disc with right NF narrowing. Resultingly, the Veteran underwent a cervical epidural steroid injection to reduce his pain and increase range of motion. See April 2013 Medical Treatment Record  Non-Government. An April 2014 private treatment report notes neck pain due to inflammatory spinal disease. See Rural Outreach Arthritis Center.

In the June 2020 remand, the Board found the March 2020 VA examiner's opinion inadequate because the examiner relied on a lack of medical records documenting the Veteran's neck symptomatology as the basis for determining the claimed condition is not related to his military service.

In October 2020, a VA medical examiner diagnosed the Veteran with cervical spine degenerative disc disease, but opined that the condition was not related to his military service because the Veteran did not seek treatment until many years after service. However, as the Veteran has reported having symptoms for 30 years, the May 2021 Board remand directives requested an opinion on whether the Veteran has a current neck condition that onset in or is related to service, to include a MVA in service.

A July 2021 VA examiner opined that the Veteran's current neck disability is less likely than not incurred in or caused by an in-service injury. In support of this opinion, the examiner noted that no chronic diagnosis was provided on active duty, and X-rays were normal with no evidence of chronicity of care or radicular symptoms in service. The examiner went on to highlight that in 2003 an MRI showed herniation with radiculopathy, but the record lacks evidence showing circumstances surrounding the onset of the radicular pain. Continuing, the examiner noted that the Veteran was involved in another motor vehicle accident in 2005 which indeed aggravated his neck pain.

The Board deems the July 20201 neck opinion inadequate. First, while the examiner addressed the theory of continued symptomology, she failed to address why the Veteran's current neck condition is not directly related to his in-service motor vehicle accident. Moreover, the rationale noted that the Veteran was involved in another motor vehicle accident in 2005, which indeed aggravated his neck pain. It is unclear to the Board where the examiner got this information as no such information is found within the clinical records. The Board acknowledges the February 2014 private notation that the Veteran's back and neck injuries are related to an auto accident, and increased after the accident, but there is no indication that this notation is referring to an auto accident which occurred in 2005, but rather to the MVA in service. Due to the examiner's failure to medically explain why the Veteran's current neck condition is not directly related to his in-service MVA, and because the opinion is based on inaccurate medical history, the opinion is of no probative value. Accordingly, a new VA opinion is necessary.

2. Entitlement to service connection for a low back condition is remanded.

The Veteran contends that a preexisting low back condition was aggravated by military service. At the Board hearing, he stated that he was involved in a motor vehicle accident in service which worsened his back condition. He further testified that participating in physical training, mechanical work, and riding over rough terrain during service caused back pain.

Pre-service medical records document that the Veteran underwent back surgery for herniated discs prior to service entrance when he was 13 years old in September 1982. The Veteran's July 1987 service entrance medical examination and history report note that the Veteran underwent back surgery prior to entering service, and that he experienced recurrent back pain. In October 1990, while in service, the Veteran complained of low back pain in left groin.

Following service separation, the Veteran sought treatment for low back pain. A February 2014 private treatment record from Rural Outreach Arthritis Center notes back and neck injuries related to an auto accident. During this examination, the Veteran reported increased back and neck symptomology after his in-service motor vehicle accident (MVA) that continues to worsen. See February 2014 Medical Treatment Record  Rural Outreach Arthritis Center. A radiology report from February 2014 indicates the Veteran's lumbar spine was unremarkable. An April 2014 private consult note from the arthritis center noted back pain caused by spinal inflammation. The final impression was noted as spondyloarthritis. A June 2014 private treatment note reveals lumbar spine with tenderness and limited range of motion.

After a March 2020 examiner concluded that the Veteran did not have a current back disability, the Board remanded the claim in June 2020 for a new opinion because the examiner did not consider the April 2014 diagnosis of spondyloarthritis, or the Veteran's preexisting condition.

In October 2020, a VA examiner did not discuss the 2014 diagnosis, and provided contradicting opinions. First, the examiner opined it was at least as likely as not that the Veteran clearly had degenerative disc disease of the spine and surgery prior to service, back pain recurred while in service, and his current pain are most likely due to the pre-service. Then, the examiner opined that the Veteran's back condition clearly and unmistakable preexisted service, but the condition was not aggravated by service. As rationale, the examiner stated that because there were no service treatment records regarding the lumbar spine, then the condition was not made worse. The VA examiner also stated there was no evidence of disease of the back.

Due to the inadequacy of the October 2020 opinion, the Board remanded this issue in May 2021, seeking to obtain a new opinion. Specifically, the Board required that a new VA examiner address any diagnoses or conditions concerning the Veteran's back that are found in the STRs and state whether those conditions clearly and unmistakably preexisted service; and, if diagnoses are found, the examiner was to state whether any back disabilities that preexisted service, clearly and unmistakably worsened during service; lastly, for any low back disorders that did not pre-exist service, the examiner was to state whether that disorder is related to service, to include being involved in a MVA, and aggravation caused by physical training, working on tanks, and riding in vehicles over rough terrain.

Pursuant to the May 2021 remand, the July 2021 VA examiner found the Veteran's back condition was less likely than not incurred in or caused by the Veteran's service. The rationale explained that the Veteran had clear and unmistakable evidence of a pre-existing "low back condition," and although there is evidence which indicates the Veteran continued to suffer from the disorder during service, which is typical of the condition, the progression is not beyond normal progression for this disorder. Therefore, there is no evidence of permanent aggravation beyond normal progression identified. Continuing, the examiner explained that no chronicity of care is documented as a result of activities during active duty, and no back issues are noted at the time of the MVA. Although mentioned in the claims file, the examiner reported, there is no MRI for the lumbar spine from 2010 in evidence, and X-rays to date show normal lumbar spine with no traumatic arthritis. She concluded that if arthritis were present it is most likely progression of the laminectomy at age 13.

The Board finds the July 2021 VA opinion to be inadequate. Specifically, the examiner was asked to "address any diagnoses or conditions concerning the Veteran's back that are found in the STRs and state whether those conditions clearly and unmistakably preexisted service." Here, the examiner failed to specify which diagnoses noted in the STRs pre-existed service. Rather, it was generally noted that the Veteran's "low back condition" pre-existed service. This opinion lacks the necessary specificity the Board needs to render a decision. Further, while the examiner found no aggravation, she also noted that there is evidence to indicate the Veteran continued to suffer from his disorder during service. This part of the rationale is problematic for two reasons: 1) the examiner failed to identify specifically what evidence was considered to indicate the Veteran continued to suffer from his disorder during service; and 2) the examiner did not explain why the evidence which indicated the Veteran continued to suffer from his disorder could not also prove that his disorder was aggravated during service.

Essentially, the examiner simply listed data and conclusions with no connecting medical reasoning. Lastly, the May 2021 remand noted that for any low back disorders that did not pre-exist service, the examiner was to state whether that disorder is related to service, to include being involved in an MVA, and physical training, working on tanks, and riding in vehicles over rough terrain. The examiner neglected to address this directive all together, to include providing an opinion on whether the Veteran's diagnosed spondyloarthritis condition did not pre-date service and whether it is related to service. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (noting that a current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending).

Although the Board truly regrets the additional delay, an addendum opinion is needed to properly determine the etiology of the Veteran's low back condition.

3. Entitlement to service connection for a right-hand condition is remanded.

Lastly, the Veteran also seeks service connection for a right-hand condition.

Service treatment records show right hand swelling, abrasions, and inability to make fist without pain due to an MVA. See June 1990 STR.

An electrodiagnostic study performed in January 2013 revealed evidence of a moderate right carpal tunnel syndrome.

The Board noted in the June 2020 remand that the March 2020 VA examiner determined that Veteran did not have a current right-hand disability and that there was no referred pain from the neck to the right hand, but failed to discuss a prior diagnosis of carpal tunnel syndrome.

In October 2020, a VA examiner also opined that the Veteran does not have a right-hand condition that is related to the military. However, medical records submitted in November 2020 show the Veteran has carpal tunnel syndrome of the wrists.

First, the Board notes that even if a disorder resolved during the appeal period, service connection may still be awarded if the diagnosis was made when the claim was filed or at any time while the appeal is pending. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Pursuant to the May 2021 remand, the July 2021 VA examiner opined that the Veteran's right-hand condition was less likely than not incurred in or caused by service. In support of this opinion, the examiner detailed that no chronic diagnosis is made for an orthopedic hand condition on active duty or after. This is evidenced by the fact that on active duty the Veteran's hand condition was an abrasion which resulted only in swelling. The examiner continued that no imaging was done, but the noted acute soft tissue injury was acute and not orthopedic. Therefore, chronicity of symptoms is subjective only, and a nexus has not been established.

Again, the Board finds this opinion to be inadequate. First, the examiner noted that the Veteran's in-service injury resulted only in swelling and abrasions. The record does not support this fact. Indeed, June 1990 STR notes swelling, abrasions, and an inability to make a fist without pain. While the examiner did address the swelling and abrasions, she failed to explain why an inability to make a fist without pain during service did not cause or contribute to the Veteran's current condition. Further, while the examiner addressed the theory of continued symptomology, she failed to medically explain why the Veteran's current right-hand condition is not directly related to his in-service motor vehicle accident. Accordingly, an addendum opinion is necessary.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA medical records and associate them with the claims file.

2. Ask the Veteran to complete a VA Form 21-4142 for any updated treatment records from private providers. Make two requests for authorized records from any identified providers, unless it is clear after the first request that a second request would be futile.

3. Obtain a VA medical opinion from an orthopedist to diagnose and determine the nature and etiology of the Veteran's neck condition. If the clinician determines that an examination is necessary to assess the Veteran's condition, an examination should be scheduled.

The claims file should be made available to the examiner for review. Based on review of the record (and examination of the Veteran), the examiner should respond to the following:

a.)	Is it at least as likely as not (probability of 50 percent or more) that the Veteran has a current neck condition that onset in or is related to service?

b.)	The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion, including, but not limited to the Veteran's lay statements of sustaining neck injuries during an in-service MVA.

c.)	The examiner should review the Veteran's claims file and provide a detailed and medically sound explanation for all elements of his/her opinion, citing to clinical findings, claims file documents, and/or medical literature as appropriate.

d.)	The examiner is advised that the lack of contemporaneous treatment records, alone, is an insufficient rationale for a negative opinion.

4. Obtain a VA medical opinion from an orthopedist to diagnose and determine the nature and etiology of the Veteran's low back condition. If the clinician determines that an examination is necessary to assess the Veteran's condition, an examination should be scheduled.

The claims file should be made available to the examiner for review. Based on review of the record (and examination of the Veteran), the examiner should respond to the following:

a) The examiner should address with specificity any diagnoses or conditions concerning the Veteran's back that are found in the STRs and state whether those conditions clearly and unmistakably preexisted service. Note: The Veteran underwent lumbar spine surgery prior to service in 1982.

b) If diagnoses are found, the examiner should state whether any back disabilities that preexisted service, clearly and unmistakably worsened during service.

c) If the examiner diagnoses any current low back conditions that did not preexist service, he or she must state whether it is at least as likely as not (probability of 50 percent or more) that the Veteran has a current back condition that onset in or is related to service.

d) The examiner is advised that the Veteran has an April 2014 diagnosis of spondyloarthritis.

e) The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions, including, but not limited to the Veteran's lay statements of sustaining injuries during an in-service MVA, and aggravation caused by physical training, working on tanks, and riding in vehicles over rough terrain.

f) The examiner must provide rationale for all opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

g) The examiner is advised that the lack of contemporaneous treatment records, alone, is an insufficient rationale for a negative opinion.

4. Obtain a VA medical opinion from a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran's right-hand condition. If the clinician determines that an examination is necessary to assess the Veteran's condition, an examination should be scheduled.

The claims file should be made available to the examiner for review. Based on review of the record (and examination of the Veteran), the examiner should respond to the following:

(a.)	Is it at least as likely as not (probability of 50 percent or more) that the Veteran's current right-hand condition had its onset in or is related to service? The examiner must address STRs indicating a hand injury due to a MVA resulting in swelling, abrasions, and the inability to make fist without pain.

(b.)	If it is determined the Veteran has a neck condition etiologically related to his service: Does the Veteran have a current right-hand condition that is proximately due to, the result of, or aggravated by a neck condition? The examiner is asked to consider the July 2009 private evaluation note includes the Veteran's report of neck pain radiating down the right arm into the right hand causing numbness and tingling into the right hand.

(c.)	The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion.

(d.)	The examiner must provide rationale for all opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.

(e.)	The examiner is advised that the lack of contemporaneous treatment records, alone, is an insufficient rationale for a negative opinion.

(Continued on the next page)

5. Then, readjudicate the issues on appeal. If any claim remains denied, provide the Veteran and his representative a supplemental statement of the case.

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Russell, Tangela

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.


benefit: healthcare

text:
Citation Nr: 22015000
Decision Date: 03/16/22	Archive Date: 03/16/22

DOCKET NO. 17-09 051
DATE: March 16, 2022

ORDER

Payment or reimbursement of medical expenses incurred on December 25, 2015, at Chestnut Hill Hospital (CHH) is granted.

FINDING OF FACT

A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the Veteran's condition on December 25, 2015, would have been hazardous to life or health; a Department of Veterans Affairs (VA)-related medical facility was not feasibly available during his emergency, and an attempt to use one beforehand would not have been considered reasonable by a prudent layperson.

CONCLUSION OF LAW

The criteria for payment or reimbursement of medical expenses incurred on December 25, 2015, at CHH met.  38 U.S.C. �� 1725, 5107; 38 C.F.R. �� 17.1000-1008.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1965 to August 1968.   This appeal is before the Board of Veterans' Appeals (Board) from a March 2016 decision of the VA Veterans Health Administration.  In October 2021, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript is included in the claims file.

Pursuant to 38 U.S.C. � 1725, under certain circumstances, VA shall reimburse a veteran for the reasonable value of emergency treatment furnished the veteran in a non-Department facility.  VA regulations at 38 C.F.R. �� 17.1000 through 17.1008 constitute the requirements under 38 U.S.C. � 1725 that govern VA payment or reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions.  38 C.F.R. � 17.1000.

Under such regulations, payment or reimbursement under 38 U.S.C. � 1725 for emergency treatment will be made only if certain conditions are met, which are listed under 38 C.F.R. � 17.1002.  The only two such conditions at issue in this case are as follows:

(b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part);

(c) A VA or other Federal facility/provider that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a nonVA medical center).

Whether a VA facility was "feasibly available" depends on such factors as the urgent nature of the veteran's medical condition and the length of any delay that would have been required to obtain treatment from a VA facility.  Cotton v. Brown, 7 Vet. App. 325, 327-28 (1995).  Regarding the relative distance of the travel involved, the Board may take judicial notice of facts, as compared to evidence, which are not subject to interpretation.  See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995).

Payment or reimbursement of medical expenses incurred on December 25, 2015, at CHH is granted.

The Veteran was seen at the CHH emergency room (ER) on December 25, 2015, for left scapular pain, with intermittent spasm, that began that morning upon waking, stating that the pain was so bad he was "bent over and could not move."  He stated that he had had similar pain intermittently in the past, but that this was worse.  He reported taking Tylenol and 2 baby aspirins, and that the pain resolved prior to arrival.  He also reported that, the previous day, he had had excessive nausea with no vomiting and no pain, and symptoms resolving with Pepto.  His symptoms were flagged for possible cardiovascular significance, and it was noted that his wife was concerned about his heart.

The Veteran was evaluated at CHH, including with electrocardiography (EKG) and chest X-rays.  It was noted that, given his extensive history and risk factorsincluding hypertension, hyperlipidemia, and hepatitisfurther cardiac workup was ordered.  However, the Veteran stated that his pain was resolved and did not want further labs or evaluation, and wanted to leave.  It was noted that the Veteran's treating physicians spoke with the Veteran and his wife regarding the risks of refusing evaluation, including death, but that he understood the risks and requested to leave against medical advice.

As reflected its denial letters and November 2016 statement of the case, the agency of original jurisdiction (AOJ) denied payment or reimbursement under 38 U.S.C. � 1725 on the bases that the Veteran's episode of care was considered non-emergent, and that VA medical facilities were feasibly available.  In determining that the Veteran's care was non-emergent, in the statement of the case, the AOJ stated "per clinical review, the patient left AMA before evaluation."

As reflected in his November 2016 notice of disagreement, February 2017 substantive appeal, and October 2021 testimony before the Board, the Veteran asserts that, due to his pain and symptoms on December 25, 2015, he was worried he was having a heart attack.  He and his wife testified that he was having very bad pains to his back and side, that his wife worried that the pain was related to a heart attack, and that they felt he needed to get to a hospital immediately.  They further testified that there was no VA facility within a reasonable distance from their residence to visit during his emergency and that they were not sure that one would even be open or fully staffed, given that it was Christmas, but that CHH was only about 5 or 6 miles away.

Affording the Veteran the benefit of the doubt, the Board finds that his condition on December 25, 2015, was of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.

The Veteran's and his wife's assertions of severe, acute left-side back pain occurring suddenly on the morning of December 25, 2015, and worrying that the Veteran was having a heart attack or other severe cardiac problem, are credible given the CHH records reflecting sudden severe left-side back pain that morning that the Veteran had never previously experienced, excessive nausea the previous day, and that his wife was concerned about his heart.  Further supporting that the Veteran's condition was a medical emergency is the evaluation and assessments of his treating physicians at CHH who flagged symptoms for cardiac significance, performed EKG and chest-X-rays, and recommended further cardiac workup given the Veteran's extensive history and risk factors.  In this regard, the Veteran, in leaving CHH, did so against medical advice, with his physicians explaining the risks of leaving without further workup, including death, given his symptoms and condition.  The fact that, given his symptoms, the Veteran's physicians advised him not to leave the hospital before further cardiac workup supports, rather than weighs against, a finding that the Veteran's condition on December 25, 2015, was of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.

The Board also finds that, given his pain and symptoms indicating a possible severe cardiac problem, a VA-related medical facility was not feasibly available during the Veteran's emergency, and an attempt to use one beforehand would not have been considered reasonable by a prudent layperson.  The nearest VA facility that provided emergency care, or that would have been open on a holiday, was approximately 38 minutes (12.6 miles) from the Veteran's residence; CHH was approximately 12 minutes (3.1 miles) away.

Accordingly, payment or reimbursement of medical expenses incurred on December 25, 2015, at CHH must be granted.  See 38 U.S.C. � 5107.

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Andrew Mack, 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.