Case A25057922

TIFFANY DAWSON · 2025 · Case ID: A25057922

MIXED

Summary

The veteran served from August 1984 to November 1984. The veteran appeals the denial of service connection for residuals of heat stroke, cerebrovascular accident (stroke), and a vision disorder, as well as seeking higher ratings for several orthopedic and neurological conditions, and service connection for various other conditions including TBI, psychiatric disorders, fibromyalgia, sleep disorder, headache, and vertigo. The Board denied the claims for heat stroke residuals, stroke residuals, and vision disorder, finding no competent evidence of a current diagnosis for these conditions. The Board granted service connection for a cervical spine disorder and hypertension, both secondary to the service-connected lumbosacral strain and associated radiculopathy, resolving reasonable doubt in the veteran's favor. The Board remanded claims for increased ratings for lumbosacral strain, radiculopathy, knee strain, and upper extremity disorders, citing duty to assist errors in obtaining adequate medical opinions regarding the ameliorative effects of medication and the severity of flare-ups. The Board also remanded claims for acquired psychiatric disorder, fibromyalgia, TBI, sleep disorder, headache, vertigo, and upper extremity disorders, finding these issues inextricably intertwined with the TBI claim and noting duty to assist errors in obtaining necessary VA examinations. The Board further remanded claims for an earlier effective date for TDIU and for special monthly compensation (SMC) based on aid and attendance, as these were impacted by the remanded increased rating claims and contained conflicting evidence.

Special Benefit

SMC - AID & ATTENDANCE; TDIU

Docket No.

220715-259729

Full Decision Text

Citation Nr: A25057922
Decision Date: 07/07/25 Archive Date: 07/07/25

DOCKET NO. 220715-259729
DATE: July 7, 2025

ORDER

Entitlement to service connection for residuals of heat stroke, to include a memory disorder, is denied.

Entitlement to service connection for a cerebrovascular accident (stroke) is denied.

Entitlement to service connection for a vision disorder is denied.

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

Entitlement to service connection for hypertension, claimed as secondary to service-connected orthopedic disabilities, is granted.

REMANDED

Entitlement to an initial disability rating in excess of 20 percent for lumbosacral strain is remanded.

Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the sciatic nerve of the right lower extremity is remanded.

Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the femoral nerve of the left lower extremity is remanded.

Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the femoral nerve of the right lower extremity is remanded.

Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the sciatic nerve of the left lower extremity is remanded.

Entitlement to an initial disability rating in excess of 10 percent for right knee strain is remanded.

Entitlement to an initial disability rating in excess of 10 percent for left knee strain with degenerative joint disease is remanded.

Entitlement to service connection for a left upper extremity disorder, to include carpal tunnel syndrome, is remanded.

Entitlement to service connection for a right upper extremity disorder, to include carpal tunnel syndrome, is remanded.

Entitlement to service connection for sleep disorder, to include insomnia, is remanded.

Entitlement to service connection for an acquired psychiatric disorder is remanded.

Entitlement to service connection for fibromyalgia is remanded.

Entitlement to service connection for a headache disorder is remanded.

Entitlement to service connection for vertigo is remanded.

Entitlement to service connection for a traumatic brain injury (TBI) is remanded.

Entitlement to an effective date earlier than October 13, 2022, for the grant of a total disability based upon individual unemployability (TDIU) is remanded.

Entitlement to special monthly compensation based upon the need for regular aid and attendance of another person is remanded.

FINDINGS OF FACT

1. The evidence of record does not demonstrate the Veteran has a current diagnosis of heat stroke, or residuals thereof, proximate to the claim or during the appeal period.

2. The evidence of record does not demonstrate the Veteran has a current diagnosis of cerebrovascular accident, or residuals thereof, proximate to the claim or during the appeal period.

3. Although the Veteran was noted to wear glasses for reading at the time of her enlistment into active duty service, there is no indication that the refractive error was subject to a superimposed disease or injury during service to create an additional disability.

4. Resolving reasonable doubt in her favor, the evidence is at least in relative equipoise as to whether the Veteran's cervical spine disorder developed secondary to her service-connected lumbosacral strain and associated radiculopathy of the bilateral lower extremities.

5. Resolving reasonable doubt in her favor, the evidence is at least in relative equipoise as to whether the Veteran's hypertension developed secondary to her service-connected lumbosacral strain and associated radiculopathy of the bilateral lower extremities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for residuals of heat stroke have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to service connection for residuals of cerebrovascular accident (stroke) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for vision disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for entitlement to service connection for a cervical spine disorder as secondary to service-connected lumbosacral strain and associated radiculopathy of the bilateral lower extremities have been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R
met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for vision disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for entitlement to service connection for hypertension as secondary to service-connected lumbosacral strain and associated radiculopathy of the bilateral lower extremities have been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303; 38 C.F.R. § 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active-duty service from August 1984 to November 1984.

The Rating Decision on appeal was issued in July 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the July 15, 2022, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the July 2021 Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or her representative with, or within 90 days from receipt of, the VA Form 10182 (i.e., until October 13, 2022). 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, then the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, then the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, then VA will issue another decision on the claims the Board is denying or granting, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of entitlement to higher disability ratings for lumbosacral strain, radiculopathy of the sciatic nerve of the right lower extremity, radiculopathy of the femoral nerve of the left lower extremity, radiculopathy of the femoral nerve of the right lower extremity, radiculopathy of the sciatic nerve of the left lower extremity, right knee strain, and left knee strain; entitlement to service connection for a left upper extremity disorder, a right upper extremity disorder, a sleep disorder, a headache disorder, vertigo, a TBI, an acquired psychiatric disorder, and fibromyalgia; as well as entitlement to an effective date earlier than October 13, 2022, for the grant of a TDIU, and entitlement to special monthly compensation based upon the need for regular aid and attendance of another person, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Board notes that the Veteran's service connection claims were initially denied in an August 2017 Rating Decision. Thereafter, the Veteran filed a timely Notice of Disagreement in August 2018, and the AOJ issued a Statement of the Case in February 2020. The Veteran subsequently submitted a supplemental claim in September 2020 which included the service connection claims previously denied in the August 2017 Rating Decision. In July 2021, the AOJ issued the supplemental claim Rating Decision on appeal, which found that new and relevant evidence had been received for all of the service connections
AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Board notes that the Veteran's service connection claims were initially denied in an August 2017 Rating Decision. Thereafter, the Veteran filed a timely Notice of Disagreement in August 2018, and the AOJ issued a Statement of the Case in February 2020. The Veteran subsequently submitted a supplemental claim in September 2020 which included the service connection claims previously denied in the August 2017 Rating Decision. In July 2021, the AOJ issued the supplemental claim Rating Decision on appeal, which found that new and relevant evidence had been received for all of the service connections claims currently on appeal and then denied those claims based on the evidence of record at the time of that decision. Pursuant to 38 C.F.R. § 3.104(c), the Board is bound by these favorable findings absent clear and unmistakable evidence to the contrary.

Service Connection Claims

Establishing service connection generally requires: 1) medical evidence of a current disability; 2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

Service connection may also be granted on a secondary basis for a disability that is due to or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

1. Residuals of heat stroke and a cerebrovascular accident

The Veteran seeks entitlement to service connection for residuals of heat stroke and a cerebrovascular accident.

Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability during the period under consideration. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); see also Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).

In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit essentially found that pain alone resulting in functional impairment is, in fact, a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis.

Here, a review of the claims file does not reveal competent evidence of a diagnosis of a heatstroke and/or cerebrovascular accident, to include residuals thereof. Although medical treatment records from Autauga Medical Clinic in Autaugaville, Alabama, dated in 2012 and 2013 referenced the Veteran's own reported history of cerebrovascular accident, there is no diagnosis of a cerebrovascular accident or residuals thereof during the pendency of the claim. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In addition, the evidence does not show specific symptoms (to include memory impairment) resulting in functional impairment of earning capacity to warrant a disability of a heatstroke and/or cerebrovascular accident. See Saunders, 886 F.3d at 1356. Therefore, entitlement to service connection
records from Autauga Medical Clinic in Autaugaville, Alabama, dated in 2012 and 2013 referenced the Veteran's own reported history of cerebrovascular accident, there is no diagnosis of a cerebrovascular accident or residuals thereof during the pendency of the claim. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In addition, the evidence does not show specific symptoms (to include memory impairment) resulting in functional impairment of earning capacity to warrant a disability of a heatstroke and/or cerebrovascular accident. See Saunders, 886 F.3d at 1356. Therefore, entitlement to service connection for a heatstroke and/or cerebrovascular accident is not warranted. Although all reasonable doubt must be resolved in the Veteran's favor, because the evidence persuasively weighs against the claims, they must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776, 781-82 (2021).

2. Vision disorder

The Veteran also seeks entitlement to service connection for a vision disorder.

A review of the Veteran's service treatment records reveals a May 1984 Applicant Medical Prescreening Form indicating that the Veteran wore glasses. Later that month, on her Report of Medical History at enlistment into service, the Veteran clarified that she wore glasses for reading (suggestive of presbyopia). Significantly, her corresponding May 1984 Report of Medical Examination indicated that her uncorrected distant vision and near vision were both 20/20. There were no further complaints of or treatment for symptomology related to the eyes in service.

Furthermore, an August 2007 treatment note from Fitz-Gerald Clinic in Demopolis, Alabama, indicated there were no eyesight problems. Medical treatment records from Autauga Medical Clinic dated throughout 2013 indicated that the Veteran denied blurry and/or double vision. A May 2013 treatment note from Whitfield Regional Hospital in Demopolis, Alabama, indicated that the Veteran's eyes were normal upon inspection. Although a March 2015 treatment note from Travis Clinic in Demopolis, Alabama, noted red conjunctivae, there was no underlying diagnosis or functional impairment indicated, and the eyes were otherwise within normal limits. Although a December 2016 treatment note from Fitz-Gerald Clinic noted the Veteran's complaints of vision problems, red eyes, and drainage in the left eye, there was no underlying diagnosis indicated.

Refractive errors are not considered "diseases or injuries" within the meaning of applicable legislation. Moreover, there is no indication that the refractive error was subject to a superimposed disease or injury during service to create an additional disability. Absent superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Service connection for refractive error may not be established. 38 C.F.R. §§ 3.303(c), 4.9 (congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation).

The Veteran has not been diagnosed as having any other disability related to her eyes. Thus, the Veteran does not have a disease or injury within the meaning of applicable legislation. Therefore, the elements of service connection are not met, and the Veteran's claim is denied.

3. Cervical Spine Disorder

The Veteran seeks entitlement to service connection for a cervical spine disorder secondary to her service-connected lumbosacral strain and associated radiculopathy.

A review of the Veteran's service treatment records does not reveal complaints of or treatment for cervical spine symptomatology.

The Veteran's private treatment records from Fitz-Gerald Clinic reveal a diagnosis of torticollis of the neck in June 2009.

In correspondence received in October 2022, a private physician opined that it was more likely than not that the Veteran's neck pain was the direct result of her service-connected back condition. In support of this opinion, the physician explained that:

A review of the Veteran's service treatment records does not reveal complaints of or treatment for cervical spine symptomatology.

The Veteran's private treatment records from Fitz-Gerald Clinic reveal a diagnosis of torticollis of the neck in June 2009.

[The Veteran] has been treated by her doctors for chronic neck pain for many years. She also suffers from a service connected back condition that causes abnormal gait, as noted by the June 2021 C&P examination. It is a well-settled medical principle that gait abnormalities can cause undue stress throughout the spinal column and lower extremities. Unnatural weight-bearing and irregular movement caused by a compromised lumbosacral spine strains the musculature supporting the entire spine. This then leads to pain and dysfunction in the cervical portion of the spine.

There is no evidence to the contrary in the records on appeal. As such, the Board resolves reasonable doubt in the Veteran's favor to find that her current cervical spine disorder was caused by her lumbosacral strain and associated radiculopathy. The claim is therefore granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Lynch, 21 F.4th at 776 (holding that exact equipoise is not required for the benefit of the doubt to be applied, but rather the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal").

4. Hypertension

The Veteran seeks entitlement to service connection for hypertension secondary to her service-connected lumbosacral strain and associated radiculopathy. While the Veteran did not raise a specific claim of entitlement to service connection for hypertension until her October 2022 attorney's correspondence, VA is obligated to develop and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level. Bailey v. Wilkie, 33 Vet. App. 188, 201 (2021). A formal claim is not required.

A review of the Veteran's service treatment records does not reveal complaints of or treatment for hypertension.

The Veteran's private treatment records from Fitz-Gerald Clinic reveal a diagnosis of uncontrolled hypertension in September 2007.

In correspondence received in October 2022, a private physician opined that it was as least as likely as not that the chronic pain associated with her service-connected lumbosacral strain and associated radiculopathy resulted in her hypertension. In support of this opinion, the physician cited to studies showing a connection between acute or chronic pain and cardiovascular changes such as hypertension.

There is no evidence to the contrary in the records on appeal. As such, the Board resolves reasonable doubt in the Veteran's favor to find that her current hypertension was caused by the chronic pain associated with her service-connected lumbosacral strain and associated radiculopathy. The claim is therefore granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Lynch, 21 F.4th at 776 (holding that exact equipoise is not required for the benefit of the doubt to be applied, but rather the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal").

REASONS FOR REMAND

The Veteran also seeks entitlement to higher disability ratings for lumbosacral strain, radiculopathy of the sciatic nerve of the right lower extremity, radiculopathy of the femoral nerve of the left lower extremity, radiculopathy of the femoral nerve of the right lower extremity, radiculopathy of the sciatic nerve of the left lower extremity, right knee strain, and left knee strain; entitlement to service connection for a left upper extremity disorder, a right upper extremity disorder, a sleep disorder, a headache disorder, vertigo, a TBI, an acquired psychiatric disorder, and fibromyalgia; as well as entitlement to an effective date earlier than October 13, 2022, for the grant of a TDIU, and entitlement to special monthly compensation based upon the need for regular aid and attendance of another person.

Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying
strain; entitlement to service connection for a left upper extremity disorder, a right upper extremity disorder, a sleep disorder, a headache disorder, vertigo, a TBI, an acquired psychiatric disorder, and fibromyalgia; as well as entitlement to an effective date earlier than October 13, 2022, for the grant of a TDIU, and entitlement to special monthly compensation based upon the need for regular aid and attendance of another person.

Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. See 38 C.F.R. § 20.802(a). Having reviewed the evidence of record, the Board finds that remand for pre-decisional duty to assist errors is required.

1. Increased Rating Claims

The Veteran seeks entitlement to higher disability ratings for lumbosacral strain, radiculopathy of the sciatic nerve of the right lower extremity, radiculopathy of the femoral nerve of the left lower extremity, radiculopathy of the femoral nerve of the right lower extremity, radiculopathy of the sciatic nerve of the left lower extremity, right knee strain, and left knee strain.

The diagnostic codes pertaining to the orthopedic (and associated neurological) disabilities on appeal do not specifically contemplate the ameliorative effects of medication, and the Board is cognizant that it may not deny a higher rating on the basis of relief provided by medication when the ameliorative effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012); see also Ingram v. Collins, No. 23-1798 (CAVC, March 12, 2025).

Here, the Veteran has a history of being prescribed medications to alleviate orthopedic pain. For instance, the June 2021 VA Back (Thoracolumbar Spine) Conditions examination indicated that the Veteran was prescribed Percocet (an oxycodone and acetaminophen tablet) as well as Zanaflex (tizanidine) to treat thoracolumbar spine symptomatology. Additionally, the Veteran reported flare-ups of thoracolumbar spine symptomatology which occurred 1 to 2 times weekly (lasting 1 to 10 hours at a time) which were only alleviated by Percocet and Zanaflex. Similarly, the June 2021 VA Knee and Lower Leg examination also indicated that the Veteran was prescribed Percocet and Zanaflex to treat bilateral knee symptomatology. The Veteran reported flare-ups of knee symptomatology which occurred 1 to 2 times weekly (lasting 6 to 10 hours at a time) which were only alleviated by Percocet and Zanaflex. Additionally, a June 2018 private treatment note from Whitfield Regional Hospital in Demopolis, Alabama, indicated that the Veteran was prescribed Oxycodone HCI/Acetaminophen (Percocet 7.5) one tab orally four times per day.

Significantly, the examining clinicians during the course of this appeal did not provide opinions as to the ameliorative effects of medication related to the Veteran's flare-ups of back and knee pain, nor is it clear as to whether the provided estimated ranges of motion during flare-ups discounted the beneficial effects of medication. The AOJ's failure to obtain adequate VA opinions prior to the July 2021 Rating Decision on appeal constituted pre-decisional duty to assist errors. See 38 C.F.R. § 20.802(a). The Board is prohibited from making medical findings as to the severity of the Veteran's service-connected disabilities without the use of medication. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). As such, a remand is required to (1) specify whether the Veteran experienced flare-ups of thoracolumbar spine (and associated radiculopathy) as well as bilateral knee symptomatology throughout the appeal period; (2) opine as to the ameliorative effects of any medication related to the Veteran's flare-ups of thoracolumbar spine and bilateral knee symptomatology; and (3) specify as to whether provided estimated ranges of motion during flare-ups discounted the beneficial effects of medication.

Acquired Psychiatric Disorder

The Veteran seeks entitlement to service connection for an acquired psychiatric disorder secondary to her service-connected lumbosacral strain and associated rad
1 Vet. App. 171, 174 (1991). As such, a remand is required to (1) specify whether the Veteran experienced flare-ups of thoracolumbar spine (and associated radiculopathy) as well as bilateral knee symptomatology throughout the appeal period; (2) opine as to the ameliorative effects of any medication related to the Veteran's flare-ups of thoracolumbar spine and bilateral knee symptomatology; and (3) specify as to whether provided estimated ranges of motion during flare-ups discounted the beneficial effects of medication.

Acquired Psychiatric Disorder

The Veteran seeks entitlement to service connection for an acquired psychiatric disorder secondary to her service-connected lumbosacral strain and associated radiculopathy.

A review of the Veteran's service treatment records does not reveal complaints of or treatment for psychiatric symptomatology. The Veteran's private treatment records from Autauga Medical Clinic reveal a diagnosis of depression in November 2012 and a diagnosis of generalized anxiety disorder in May 2013. Additionally, a July 2018 discharge summary from Whitfield Regional Hospital in Demopolis, Alabama, indicated an admitting diagnoses of severe psychotic disorder, as well as a final diagnosis of schizophrenia with acute exacerbation of chronic symptoms.

In correspondence received in October 2022, a private physician opined that the Veteran's diagnosed depression was more likely than not the result of the chronic pain associated with her service-connected thoracolumbar spine, and that her radiculopathy has substantially exacerbated her anxiety. In support of this conclusion, the physician cited to several clinical studies suggesting a correlation between chronic pain and the development of depression/anxiety.

However, the Board finds that the evidence currently of record is insufficient to warrant a grant of entitlement to service connection for an acquired psychiatric disorder, as there is no indication that the various psychiatric diagnoses of record were rendered by mental health professionals in conformance to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). A diagnosis of a mental disorder must conform to the criteria of the DSM-5. 38 C.F.R. § 4.125.

As private treatment records associated with the claims file prior to the July 2021 Rating Decision on appeal suggested that the Veteran has diagnoses of anxiety and depression related to chronic pain, the Board finds that the AOJ should have afforded the Veteran a VA examination to determine the likely nature and etiology of her diagnosed psychiatric disorders. Failure to do so constituted a pre-decisional duty to assist error. As such, on remand, the Veteran should be provided with such a VA examination.

Fibromyalgia

The Veteran seeks entitlement to service connection for fibromyalgia secondary to her acquired psychiatric disorder, to include depression and anxiety.

The Veteran's private treatment records from Autauga Medical Clinic reveal a diagnosis of fibromyalgia in October 2012. In correspondence received in October 2022, a private physician opined that it was as least as likely as not that her depression and chronic pain related to her radiculopathy had substantially exacerbated her fibromyalgia symptoms.

As such, a decision on the pending appeal of the claim for entitlement to service connection for an acquired psychiatric disorder will significantly impact a decision on the issue of entitlement to service connection for fibromyalgia, and therefore the issues are inextricably intertwined. A remand of the claim of entitlement to service connection for fibromyalgia is therefore also required. Harris v. Derwinski, 1 Vet. App. 180 (1991).

Entitlement to service connection for a TBI

The Veteran seeks entitlement to service connection for a TBI.

Crucially, the Veteran's May 1984 Report of Medical History upon enlistment into service noted "laceration forehead, sutured (no concussions)." Additionally, the corresponding May 1984 Report of Medical Examination upon enlistment into service indicated a scar on the left temple. Thereafter, a September 1984 service treatment note indicated that the Veteran was experiencing headaches for two weeks which began in the temple region.

Following separation from active duty service, in August 2017, the Veteran sought treatment at Simmons Clinic Family Medicine in Linden, Alabama, for chronic headaches, at which time she reported hitting her head on concrete while in military service. Later, a July 2018 private treatment record from Whitfield Regional Hospital indicated that the Veteran sustained a "closed head injury" in a motor vehicle accident at age 4 or 5.

The Board notes that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1132, 1137. If a preexisting disorder is noted upon entry into service, then the Veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies, and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 38 U.S.C. § 1153 arises, then the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); Jensen, 19 F.3d at 1417. When addressing the issue of entitlement to service connection for a disability characterized as preexisting service, which was not noted on examination to entrance to service, the correct legal standard to apply is whether there is clear and unmistakable evidence that the disability preexisted service and whether there is clear and unmistakable evidence that the disability did not undergo a worsening in service beyond that which would be due to the natural progression of the disability. This distinction is important, because "clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)).

Here, although the AOJ never provided the Veteran with a VA examination or obtained a VA opinion relevant to the issue, the Rating Decision on appeal nonetheless found that the Veteran's TBI existed prior to service and did not permanently worsen as a result of service.

In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.159(c)(4) provides that an examination or opinion is necessary if the evidence of record: 1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; and 2) establishes that the Veteran suffered an event, injury, or disease in service; and 3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but 4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court noted that the third prong of 38 C.F.R. § 3.159(c)(4) is a low threshold standard.

Here, given the sutured forehead laceration noted at the time of the Veteran's enlistment into service in May 1984 as well as the subsequent indication of headaches lasting for two weeks in September 1984, the Board finds that the low threshold articulated in McLendon has been met. As such, the Veteran should have been afforded a VA examination to ascertain the likelihood that her claimed TBI existed prior to service and did not permanently worsen as a result of service. See 38 C.F.R. § 20.802(a). As such, on remand, the Veteran should be provided with such a VA examination.

Entitlement to service connection for a left upper extremity disorder, a right upper extremity disorder, a sleep disorder, a headache disorder, and vertigo

The Veteran also seeks entitlement to service connection for a left upper extremity disorder, a right upper extremity disorder, a sleep disorder, a headache disorder, and vertigo.

The Board notes that the Veteran sought treatment for bilateral hand pain at the
, the Veteran should have been afforded a VA examination to ascertain the likelihood that her claimed TBI existed prior to service and did not permanently worsen as a result of service. See 38 C.F.R. § 20.802(a). As such, on remand, the Veteran should be provided with such a VA examination.

Entitlement to service connection for a left upper extremity disorder, a right upper extremity disorder, a sleep disorder, a headache disorder, and vertigo

The Veteran also seeks entitlement to service connection for a left upper extremity disorder, a right upper extremity disorder, a sleep disorder, a headache disorder, and vertigo.

The Board notes that the Veteran sought treatment for bilateral hand pain at the Fitz-Gerald Clinic in May 2008; that the Veteran was diagnosed as having chronic insomnia at the Travis Clinic in March 2015; that the Veteran was diagnosed as having migraine headaches at the Fitz-Gerald Clinic in September 2007; and that the Veteran reported dizziness at the Autauga Medical Clinic in February 2012 and April 2014.

The Board also notes that these various symptoms and diagnoses may be manifestations of TBI residuals. As a decision on the pending appeal of the claim for an entitlement to service connection for a TBI could significantly impact decisions on the issues of entitlement to service connection a left upper extremity disorder, a right upper extremity disorder, a sleep disorder, a headache disorder, and vertigo (or vice versa), the issues are inextricably intertwined. A remand of these service connection claims is therefore also required. Harris v. Derwinski, 1 Vet. App. 180 (1991).

2. Entitlement to an effective date earlier than October 13, 2022, for the grant of a TDIU, and entitlement to special monthly compensation based on the need for regular aid and attendance

The Veteran's attorney asserts that the Veteran is entitled to an effective date earlier than October 13, 2022, for the grant of a TDIU as part and parcel of the increased ratings claims on appeal. Specifically, the attorney argued in her October 2022 correspondence that the Veteran was entitled to an effective date of May 4, 2017, for the grant of entitlement to a TDIU. In support of her claim, the Veteran also submitted a VA Form 21-8940 in October 2022.

The Veteran's attorney also asserted in her October 2022 correspondence that the Veteran was entitled to special monthly compensation based on the need for regular aid and attendance effective May 4, 2017, as part and parcel of her claim for an increased ratings. Specifically, the attorney argued that statements made by the Veteran on her October 2022 VA Form 21-8940 alone were sufficient to warrant a grant of entitlement to special monthly compensation back to May 2017. The Board disagrees, as the medical evidence currently of record regarding the functional impact of the Veteran's service-connected disabilities (to include VA examinations dated in June 2021) are inconsistent with the Veteran's October 2022 statements.

The Board notes that TDIU and special monthly compensation claims are part and parcel of an increased rating claim when such claims are raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Akles v. Derwinski, 1 Vet. App. 118 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that special monthly compensation "benefits are to be accorded when a veteran becomes eligible without need for a separate claim").

As the evidentiary development ordered for the pending increased ratings claims on appeal could significantly impact decisions on the issues of entitlement to an effective date earlier than October 13, 2022, for the grant of a TDIU, and entitlement to special monthly compensation based on the need for regular aid and attendance, the issues are inextricably intertwined. A remand of the claims of entitlement to an earlier effective date for a TDIU and entitlement to special monthly compensation is therefore also required. Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination to determine the nature and severity of the Veteran's lumbosacral strain and associated radiculopathy of the bilateral lower extremities. The examiner must review the entire claims file, including this Remand. In addition to the customary examination:

a) The examiner is asked to indicate all medications used by the Veteran to alleviate lumbosacral and associated radicular symptoms during the period on appeal. This should also address whether medications
an earlier effective date for a TDIU and entitlement to special monthly compensation is therefore also required. Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

a) The examiner is asked to indicate all medications used by the Veteran to alleviate lumbosacral and associated radicular symptoms during the period on appeal. This should also address whether medications specifically prescribed to alleviate symptoms associated with other service-connected orthopedic disabilities had the effect of alleviating lumbosacral symptoms as well.

b) The examiner should report all ranges of motion in terms of the Veteran's active motion, passive motion, weight-bearing motion, and non-weight-bearing motion (when discounting the ameliorative effects of medication).

c) The examiner should report all manifestations and opine as to the severity of the Veteran's radiculopathy of the bilateral lower extremities (when discounting the ameliorative effects of medication).

d) The examiner is also asked to describe whether pain, weakness, fatigue, or incoordination significantly limited functional ability during flare-ups or after repetitive use, and if so, the examiner is requested to estimate the ranges of motion during flare-up or after repetitive use (when discounting the ameliorative effects of medication). If the examination does not take place during a flare-up or if repetitive testing cannot be performed, then the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, then the examiner must explicitly note this in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced ranges of motion during flare-ups or after repetitive use.

2. Schedule the Veteran for an examination to determine the nature and severity of the Veteran's bilateral knee strain. The examiner must review the entire claims file, including this Remand. In addition to the customary examination:

a) The examiner is asked to indicate all medications used by the Veteran to alleviate knee symptoms during the period on appeal. This should also address whether medications specifically prescribed to alleviate symptoms associated with other service-connected orthopedic disabilities had the effect of alleviating knee symptoms as well.

c) The examiner is also asked to describe whether pain, weakness, fatigue, or incoordination significantly limited functional ability during flare-ups or after repetitive use, and if so, the examiner is requested to estimate the ranges of motion during flare-up or after repetitive use (when discounting the ameliorative effects of medication). If the examination does not take place during a flare-up or if repetitive testing cannot be performed, then the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, then the examiner must explicitly note this in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced ranges of motion during flare-ups or after repetitive use.

3. Provide the Veteran with a VA examination to determine the probable onset and etiology of her claimed acquired psychiatric disorder. The entire claims file and a copy of this Remand must be made available to the reviewing examiner and the examiner shall indicate in the report that the claims file was reviewed. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis.

(a.) Clearly identify all psychiatric disorders which have existed since May 2017, the date of the Veteran's claim.

(b.) Then, opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that a current psychiatric disorder is due to the Veteran's service-connected lumbosacral strain and associated radiculopathy.

(c.) If the answer to (b.) is no, then opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that a current psychiatric disorder is aggravated (worsened) by the Veteran's service-connected lumbosacral strain and associated radicul
.

(a.) Clearly identify all psychiatric disorders which have existed since May 2017, the date of the Veteran's claim.

The clinician should address the treatment records indicating a diagnosis of depression in November 2012 and a diagnosis of generalized anxiety disorder in May 2013, as well as a July 2018 discharge summary from Whitfield Regional Hospital in Demopolis, Alabama, indicated an admitting diagnoses of severe psychotic disorder, as well as a final diagnosis of schizophrenia with acute exacerbation of chronic symptoms.

The examiner should provide a complete rationale for all opinions expressed. If the medical professional cannot provide an opinion without resorting to mere speculation, then he or she shall provide a complete explanation as to why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

4. Provide the Veteran with a VA examination to determine the probable onset and etiology of her claimed TBI. The entire claims file and a copy of this Remand must be made available to the reviewing examiner and the examiner shall indicate in the report that the claims file was reviewed. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. Specifically, the examiner is asked to opine as to the likelihood that the Veteran's bilateral hand pain, chronic insomnia, migraine headaches, and dizziness are manifestations of TBI residuals.

First, the examiner is asked to opine as to whether it is clear and unmistakable (undebatable) that the Veteran's TBI preexisted her period of active duty service from August 1984 to November 1984. In answering these questions, the examiner is specifically asked to address the Veteran's May 1984 Report of Medical History upon enlistment into service which noted "laceration forehead, sutured (no concussions)" as well as the corresponding May 1984 Report of Medical Examination upon enlistment into service indicating a scar on the left temple. The examiner is also asked to address the July 2018 private treatment record from Whitfield Regional Hospital indicating that the Veteran sustained a "closed head injury" in a motor vehicle accident at age 4 or 5.

If a current TBI clearly and unmistakably preexisted active-duty service, then the examiner is also asked to opine as to whether it is clear and unmistakable (undebatable) that the disability was not aggravated during active-duty service, or whether it is clear and unmistakable (undebatable) that any increase was due to the natural progress of the TBI. In answering these questions, the examiner is specifically asked to address the September 1984 service treatment note indicating that the Veteran was experiencing headaches for two weeks which began in the temple region. The examiner is also asked to address the August 2017 treatment record from Simmons Clinic Family Medicine in which the Veteran sought treatment for chronic headaches and reported hitting her head on concrete while in military service.

If the current TBI did not clearly and unmistakably preexist service or was not clearly and unmistakably aggravated by service, then the examiner is asked to opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the TBI had its onset in, or is otherwise related to, active military service. In answering these questions, the examiner is specifically asked to address the September 1984 service treatment note indicating that the Veteran was experiencing headaches for two weeks which began in the temple region. The examiner is also asked to address the August 2017 treatment record from Simmons Clinic Family Medicine in which the Veteran sought treatment for chronic headaches and reported hitting her head on concrete while in military service.

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The examiner is advised that the Veteran is competent to report her symptoms and history, and that such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, then he/she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's
answering these questions, the examiner is specifically asked to address the September 1984 service treatment note indicating that the Veteran was experiencing headaches for two weeks which began in the temple region. The examiner is also asked to address the August 2017 treatment record from Simmons Clinic Family Medicine in which the Veteran sought treatment for chronic headaches and reported hitting her head on concrete while in military service.

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Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Flamini, Anthony

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.

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