Citation Nr: 1339773 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 08-34 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a cognitive (organic mental) disorder, including as due to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial, separate, compensable evaluation for peripheral artery disease of the bilateral lower extremities. 3. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Chisholm Chisholm & Kilpatrick, LTD, Attorneys ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from December 1968 to August 1970. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that, in pertinent part, granted service connection for diabetes mellitus, Type II with erectile dysfunction and mild peripheral arterial disease involving the dorsalis pedis and posterior tibialis arteries, bilaterally, that was assigned an initial 20 percent disability rating, and denied service connection for PTSD, and visual problems and a mild cognitive disorder as due to diabetes mellitus. In a January 2012 decision, the Board granted service connection for left eye retinopathy, denied service connection for a right eye disorder and an organic mental disorder, and denied a compensable rating for erectile dysfunction and an initial rating in excess of 20 percent for diabetes mellitus. At that time, the Board remanded the matters of entitlement to service connection a psychiatric disorder including PTSD, peripheral arterial disease of the bilateral lower extremities, and a TDIU to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. (Although the Board's January 2012 decision characterized the Veteran's claim regarding peripheral arterial disease of his lower extremities as a service connection claim, the Board is of the opinion that it is more accurately characterized as currently set forth on the title page.) In a December 2012 decision, the AMC granted service connection for PTSD and a major depressive disorder and assigned an initial 50 percent disability rating. The AMC's action represents a full grant of the benefits sought as the Veteran's claim for service connection for an acquired psychiatric disorder, including PTSD. The Veteran appealed the Board's January 2012 decision to the United States Court of Appeals for Veterans Claims (court). In an April 2013 Memorandum Decision, the court set aside that part of the Board's decision that denied service connection for a cognitive disorder as due to a psychological disorder and remanded the matter to the Board for further adjudication. The remainder of the Board's decision on appeal was affirmed. In January 2012, the Board referred the matter of the Veteran's claim for service connection for bilateral upper extremity neuropathy to the agency of original jurisdiction (AOJ) for appropriate action. See e.g., Veteran's January 2008 notice of disagreement and September 2008 written statement. While a June 2012 RO decision granted service connection for degenerative arthritis of the left shoulder claimed as left shoulder separation and nerve pain, there is no indication in the record that the AOJ has yet considered the Veteran's claim for service connection for bilateral upper extremity neuropathy. The Veteran's claim for service connection for bilateral upper extremity neuropathy is again referred to the AOJ for appropriate development and adjudication. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a cognitive disorder, including as due to service connected PTSD. Service connection is in effect for PTSD and a major depressive disorder, currently assigned a 50 percent disability rating. Disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2013). The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) As noted by the court in its Memorandum Decision, a June 2007 VA psychiatric examiner opined that the Veteran's cognitive disability may have been caused by the Veteran being "minimally mentally disabled". See Memorandum Decision at page 3 and June 2007 VA examination report at page 5. However, it is unclear by this statement, if the Veteran's cognitive disability might be due to PTSD or another psychiatric disorder. The examiner also recommended that the Veteran undergo neuro-psychological testing to qualify and quantify the extent of the Veteran's cognitive disorder, although this does not appear to have been done. While the Veteran underwent VA examination for PTSD in January 2012, to date, he has not been afforded a VA examination to obtain an opinion on the relationship between the cognitive disorder complaints and the service-connected PTSD and major depressive disorder disability, if any. Such should be provided on remand. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Further, as to the Veteran's claim for an increased rating for peripheral artery disease, in its January 2012 remand, the Board noted that a June 2010 written statement from David F. Waller, M.D., indicates that the Veteran was diagnosed with diabetes in 2003, seen through 2007, and diagnosed with diabetic neuropathy in March 2007. Private treatment records, dated from January to March 2003 and apparently from this physician, are in the claims file but do not discuss diabetes. The Board believes it would be helpful to have Dr. Waller's records regarding the Veteran's 2007 diagnosis of diabetic neuropathy and efforts should be made to obtain them. The Board also directed that the Veteran undergo VA examination to evaluate his peripheral arterial disease of the lower extremities. He underwent VA examination in February 2013. However, there is no indication in the claims file, or in the Veteran's Virtual VA electronic folder, that he was provided with a supplemental statement of the case (SSOC) that reflects the AOJ's initial consideration of the evidence added to the record since the March 2010 SSOC. See 38 C.F.R. § 19.31 (2013). As to the Veteran's TDIU claim, in its remand, the Board directed that he be provided with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The AMC sent him this form in its January 2012 and February 2013 letters, but he has yet to return the completed application. But, during his February 2012 VA examination, the Veteran, who was born in 1948, told the examiner that he received Social Security Administration (SSA) disability retirement benefits and that he retired as of May 3, 2010, due to service-connected diabetes mellitus and neuropathy, and a non-service-connected back disorder. It is unclear if the Veteran receives SSA disability benefits, or age-related retirement benefits. In this regard, the Board notes that the possibility that SSA records could contain evidence relevant to the claims on appeal cannot be foreclosed absent a review of those records. As such, the administrative decision and records considered by the SSA in an award of disability benefits must be obtained prior to consideration of the Veteran's claims. 38 C.F.R. § 3.159(c)(2) (2013); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Recent treatment records from the VA medical center (VAMC) in Hampton, Virginia, dated since July 2007, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all records regarding the Veteran's treatment by David F. Waller, M.D., Family Medicine Associates, P.C., 2050 Hillpoint Blvd., North, Suffolk, VA 23434, dated since March 2003. 2. Obtain all medical records regarding the Veteran's treatment at the Hampton VAMC, dated from July 2007 to the present, and from any additional VA and non-VA medical provider identified by him. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2013). 3. Contact the SSA and request a copy of any administrative decision and all records considered in conjunction with any award of SSA disability benefits to the Veteran and any subsequent disability determinations regarding him. 4. Then, schedule the Veteran to undergo VA psychiatric examination performed by a physician with expertise to determine the etiology of any diagnosed cognitive disorder found to be present. The claims file should be made available to the examiner prior to examination. All indicated tests and studies should be performed, including neuro-psychological testing, and all clinical findings reported in detail. a. The examiner should determine if the Veteran has a diagnosed cognitive disorder. b. If so, the examiner should indicate whether any diagnosed cognitive disorder is as likely as not (50 percent probability or greater) related to the Veteran's active service or the result of service-connected PTSD and major depressive disorder disability. b. If not, is any diagnosed cognitive disorder at least as likely as not aggravated by service-connected PTSD and major depressive disorder disability? If aggravated, what permanent, measurable increase in current cognitive disorder pathology is attributable to the service-connected PTSD and major depressive disorder disability? c. The examination report should include the complete rationale for all opinions expressed. 5. Readjudicate the Veteran's claims for service connection for a cognitive disorder including as due to service-connected PTSD and major depressive disorder disability, an initial, separate, compensable rating for peripheral arterial disease of the bilateral lower extremities, and a TDIU, in light of any evidence added to the record. If any benefit sought on appeal remains denied, the appellant and his attorney should be provided with a SSOC. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2013). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).