Citation Nr: 1513675 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 12-34 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a skin disability as a result of burns from an explosion. 4. Entitlement to service connection for left side peripheral neuropathy. 5. Entitlement to service connection for gastroesophageal reflux disease (GERD). 6. Entitlement to service connection for erectile dysfunction. 7. Entitlement to service connection for a sleep disorder. 8. Entitlement to service connection for posttraumatic stress disorder (PTSD). 9. Entitlement to an initial compensable rating for service-connected headaches. 10. Entitlement to an initial rating in excess of 10 percent for residuals of traumatic brain injury (TBI). 11. Entitlement to an initial rating in excess of 50 percent for service-connected anxiety and depression. 12. Entitlement to a total disability rating based on individual unemployability (TDIU). 13. Entitlement to an effective date prior to November 23, 2009 for service connection for headaches. 14. Entitlement to an effective date prior to November 23, 2009 for service connection for TBI. 15. Entitlement to an effective date prior to November 23, 2009 for service connection for anxiety and depression. REPRESENTATION Veteran represented by: John S. Berry, Attorney-at-Law ATTORNEY FOR THE BOARD Nathaniel J. Doan, Counsel INTRODUCTION The Veteran had active service from April 1976 to June 1978. These matters comes before the Board of Veterans' Appeals (BVA or Board) from March 2010, June 2010, May 2011, and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran perfected an appeal of issues one through eleven listed above. As to entitlement to TDIU, issue twelve, this is part and parcel of the increased rating claims in appellate status, and the attorney-representative has specifically contended that the Veteran is unemployable due to his service-connected disabilities; these are the same issues for which he is also seeking increased ratings. As to issues thirteen through fifteen, the attorney-representative submitted a Notice of Disagreement to the effective dates assigned by the RO in the October 2012 rating decision in which they granted service connection for these three disabilities. In the remand below, the Board directives that a Statement of the Case (SOC) be issued as to these three disabilities on the issue of an earlier effective date. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board is also cognizant that there is some indication that the RO found that the claim for service connection for a sleep disorder was no longer in appellate status following the grant of service connection for the psychiatric disability, as sleep chronic sleep impairment is part of the rating criteria for a psychiatric disability (under the 30 percent rating within the General Rating Formula for Mental Disorder located in 38 C.F.R. § 4.130). The Board notes, however, that the Veteran appears to be seeking service connection for a separate sleep disorder disability, which may not be psychiatric in nature. After this review of the procedural history of this appeal and the Veteran's contentions, the Board finds that a separate claim for service connection for a sleep disorder remains in appellate status. Although the RO issued a proposed determination that the Veteran was incompetent, the RO subsequently issued a February 2013 rating decision finding that the Veteran is competent to handle his financial affairs. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Prior to adjudication upon the merits, the Board finds that additional development is necessary to fulfill its duty to notify and assist, and to ensure all due process is provided. Regarding additional records, the attorney-representative has specifically requested that VA obtain VA treatment records from the VA Medical Center (VAMC) in Palo Alto, California for January 1, 1990 to December 31, 1996 and the VA facility at Menlo Park, California from January 1, 1990 to December 31, 1992. The current record does not indicate that the AOJ has yet sought these records. The AOJ should also seek updated treatment records. The RO most recently added treatment records in September 2013. In addition, the record provides evidence that the Veteran is on disability from the Social Security Administration (SSA). VA has not yet sought these records. The record indicates that the SSA disability determination was at least in part based on a back disability. As such, the records are relevant to at least one issue on appeal. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Upon remand, the AOJ should seek these records. Regarding the claims for initial higher ratings, the Veteran was last provided VA examinations in June 2012. In multiple statements, the attorney-representative has essentially contented that these examinations are inadequate and do not show the true level of the Veteran's disabilities. Specifically in regard to the psychiatric disability, the Veteran's treatment records make reference to hallucinations and suicidal ideations (with evidence of previous attempts), but the examiner did not indicate knowledge that these were past symptoms and did not find them during the examination. The attorney-representative has contended that these symtpoms of a more severe disability remain present. To ensure there are contemporaneous examinations that show the current level of disabilities, upon remand, the Veteran should be scheduled for additional examinations to evaluate the severity of these disabilities. In each of these examinations, the examiner should also discuss the impact of the disability on the Veteran's employability. As the issue of TDIU, the AOJ should also issue a VCAA letter notifying the Veteran of how to substantiate this claim. As to the claims for erectile dysfunction, GERD, a sleep disorder, and hypertension, the attorney-representative has contended that these disabilities are secondary to the service-connected psychiatric disability. See 38 C.F.R. § 3.310. As of yet, no opinions on these contentions have been obtained. The Board finds that there is such a duty regarding the secondary service connection claims. At the time of these examinations, the examiners should also address direct service connection. Upon remand, the AOJ should also issue a VCAA letter than addresses secondary service connection. As to the earlier effective date claims (issues thirteen through fifteen above), the attorney-representative filed a timely Notice of Disagreement as to the effective dates assigned the grants of service connection in the October 2012. To date, however, the AOJ has not responded to this Notice of Disagreement with a Statement of the Case addressing the issues. The Board finds that a Statement of the Case must be issued. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Take all necessary steps to seek treatment records from the Palo Alto VAMC dated between January 1, 1990 to December 31, 1996 and the VA facility at Menlo Park from January 1, 1990 to December 31, 1992. Also obtain updated VA treatment records dated from September 2013to the present. If any records cannot be obtained after reasonable efforts have been made, the AOJ should follow the provisions in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Contact SSA for the purpose of obtaining a copy of the decision and all medical records relied upon in conjunction with the Veteran's claim for SSA disability benefits. If any records cannot be obtained after reasonable efforts have been made, the AOJ should follow the provisions in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Issue VCAA notification letters regarding the issues of TDIU and secondary service connection for hypertension, GERD, erectile dysfunction, and a sleep disorder. 4. After completing directive (1)-(3), schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension disability. The claims file (to include access to any relevant electronic files) and a copy of this Remand must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the VA examiner should offer an opinion on the following: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that the hypertension is attributable to service? (b) If the answer to (a) is no, is it at least as likely as not (i.e., 50 percent or greater probability) that the hypertension was caused or aggravated the service-connected depression and anxiety disabilities? The examiner should specifically consider the Veteran's lay testimony. 5. After completing directive (1)-(3), schedule the Veteran for a VA examination to determine the nature and etiology of his GERD disability. The claims file (to include access to any relevant electronic files) and a copy of this Remand must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the VA examiner should offer an opinion on the following: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that GERD is attributable to service? (b) If the answer to (a) is no, is it at least as likely as not (i.e., 50 percent or greater probability) that GERD was caused or aggravated the service-connected depression and anxiety disabilities? The examiner should specifically consider the Veteran's lay testimony. 6. After completing directive (1)-(3), schedule the Veteran for a VA examination to determine the nature and etiology of the erectile dysfunction disability. The claims file (to include access to any relevant electronic files) and a copy of this Remand must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the VA examiner should offer an opinion on the following: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that erectile dysfunction is attributable to service? (b) If the answer to (a) is no, is it at least as likely as not (i.e., 50 percent or greater probability) that erectile dysfunction was caused or aggravated the service-connected depression and anxiety disabilities? The examiner should specifically consider the Veteran's lay testimony. 7. After completing directive (1)-(3), schedule the Veteran for a VA examination to determine the nature and etiology of his claimed sleep disorder. The claims file (to include access to any relevant electronic files) and a copy of this Remand must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the VA examiner should offer an opinion on the following: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran has a sleep disorder disability? (b) If so, is it at least as likely as not (i.e., 50 percent or greater probability) that such disability is attributable to service? (c) If the answer to (a) is yes but the answer to (b) is no, is it at least as likely as not (i.e., 50 percent or greater probability) that such disability was caused or aggravated the service-connected depression and anxiety disabilities? In answering the above, the examiner should note that the Veteran is currently compensated for a psychiatric disability, which considers the symptoms of chronic sleep impairment. The above questions relate to the question of whether these is a separate diagnosable disorder with a pathology directly to service or to the service-connected psychiatric disability. The examiner should specifically consider the Veteran's lay testimony. 8. After completing directive (1)-(3), schedule the Veteran for VA examinations to determine the current level of severity of his service-connected TBI and headaches. The claims file (to include access to any relevant electronic files) and a copy of this Remand must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the disabilities, to include all manifestations of the TBI. As to headaches, the examiner should discuss whether the headaches are manifested by prostrating headaches, and if so, the frequency of these attacks. The examiner should also discuss how these disabilities affect the Veteran's ability to obtain and sustain substantially gainful employment. All opinions expressed should be accompanied by supporting rationale. 9. After completing directive (1)-(3), schedule the Veteran for a VA examination to determine the current level of severity of his service-connected anxiety and depression. The claims file (to include access to any relevant electronic files) and a copy of this Remand must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the service-connected psychiatric disability. The examiner should specifically review the file and note the finds of prior suicidal ideations/attempts and hallucinations, and discuss whether these symptoms are present currently or at any time since November 23, 2009. The examiner should also discuss how these disabilities affect the Veteran's ability to obtain and sustain substantially gainful employment. All opinions expressed should be accompanied by supporting rationale. 10. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claims (listed as (1) though (12) on the title page above), to include specifically adjudicating the issue of TDIU and the issues of hypertension, GERD, erectile dysfunction, and sleep disorder on a direct and secondary basis based on the entirety of the evidence. If any claims remain denied, the Veteran and his attorney-representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 11. As to the issues of earlier effective dates (issues (13) though (15) on the title page above), the AOJ should issue an appropriate SOC addressing these claims. The Veteran and his attorney-representative should be afforded opportunity to respond. This issue should be returned to the Board only if the appellant submits a timely substantive appeal after the SOC is issued. The Veteran 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 2014). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2014).