Citation Nr: 1617609 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 10-40 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an increased rating in excess of 10 percent for hypertension. 3. Entitlement to an initial rating in excess of 10 percent for degenerative changes of the lumbosacral spine with right sacroiliac joint dysfunction (claimed as right hip pain associated with pes planus and heel spurs). 4. Entitlement to service connection for a bilateral knee disability, to include as secondary to another service-connected disease or injury. 5. Entitlement to service connection for a left hip disability, to include as secondary to another service-connected disease or injury. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty for training from July 1982 to November 1982 and active service from April 2002 to May 2005, with service in Southeast Asia. This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2008, June 2010, and August 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. By way of background, the RO granted service connection for a right hip disability in July 2008, assigning a noncompensable rating, and denied service connection for a left hip disability. While this grant was initially phrased as a grant of a "bilateral hip disability," the corresponding code sheet listed only a "right sacroiliac joint" disability (claimed as right hip pain), and the subsequent August 2010 statement of the case further clarified that it was only the right hip, and not both hips, for which service connection was in effect. As such, it is clear from the record that service connection is only in effect for the right hip and not the hips bilaterally. In response to this decision, the Veteran filed a notice of disagreement as to the assigned rating for the right hip and the denial of service connection for the left. Separate August 2010 statements of the case (SOC) denied an increased rating for the right hip and service connection for a left hip disability. The Veteran filed separate September 2010 substantive appeals to the two SOCs, respectively, thus perfecting an appeal as to an increased rating for the right hip disability and service connection for the left hip. As those appeals were pending, the RO denied an increased rating for hypertension in a June 2010 rating decision, and in August 2010 granted service connection for PTSD, assigning a 30 percent rating. The Veteran separately and timely perfected an appeal as to both of these decisions. All of these issues have now been combined into a single appeal for the purposes of Board review. The RO granted additional increased ratings of 50 percent for the Veteran's PTSD in a December 2013 rating decision, effective May 2, 2005, and of 10 percent for the right sacroiliac joint disability, effective March 15, 2007. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. As the grants span the entire period on appeal, the issues on the title page has been re-characterized as entitlement to a rating in excess of 50 percent for PTSD and in excess of 10 percent for right sacroiliac joint dysfunction. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the Veteran submitted a formal application for TDIU in July 2012, and as such the issue of entitlement to TDIU has been raised by the record. The Board remanded the service connection and increased rating for PTSD and hypertension issues for additional development in September 2014. The requested hearing having been held, the directives have been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified as to the service connection and increased rating for PTSD and hypertension claims at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in January 2016. A transcript of the hearing is associated with the VA's Veterans Appeals Control and Locator System (VACOLS). The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Beginning with the claim for an increased rating for degenerative changes of the lumbosacral spine with right sacroiliac joint dysfunction, the Veteran filed a substantive appeal as to that issue specifically on September 30, 2010, as part of a packet of correspondence from his representative. On it, the Veteran requested a videoconference hearing before a Veterans Law Judge. However, that issue was not certified as being on appeal, and was not addressed at the January 2016 hearing. There is no evidence that the Veteran has withdrawn either his appeal or his request for a hearing on that particular issue. As such, the Board must remand that issue so that the Veteran can be scheduled for his requested hearing. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, during his January 2016 hearing the Veteran indicated that he had received treatment for his PTSD approximately three to four months prior to the hearing and treatment for his hypertension approximately one month prior. It was not clear from the transcript whether this treatment was at a VA or private facility; however, the most recent VA treatment records of any kind are from December 2013. The only private treatment records from around the time of the hearing are radiographic reports concerning the Veteran's back, hips and knees. All other private treatment records date from approximately 2010, with one additional psychiatric evaluation from July 2014. As such, it appears that there are outstanding records that are relevant to the Veteran's increased rating claims, and therefore the Board must remand the claims so that appropriate efforts can be made to obtain any outstanding records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). During his hearing, the Veteran stated that he was informed by his doctor that his knee disability was due to his service-connected bilateral pes planus and heel spurs. See January 2016 Hearing Transcript at 6-7. Thus, the theory of secondary service connection has been raised by the record. Finally, as noted in the introduction the issue of entitlement to TDIU has been raised by the record. However, as the increased rating and service connection claims remanded herein, if granted, would materially affect the determination with respect to TDIU, the Board finds that the issue of entitlement to TDIU is inextricably intertwined with the other claims being remanded and must re remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a videoconference hearing before a Veterans Law Judge concerning the issue of entitlement to an increased rating in excess of 10 percent for degenerative changes of the lumbosacral spine with right sacroiliac joint dysfunction. The Veteran should be notified of the date and time of the hearing. 2. Contact the Veteran and request that he submit or re-authorize for release all private treatment records associated with his claimed disabilities. Then, make appropriate efforts to obtain any records so authorized for release. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given an opportunity to provide them. 3. Obtain all outstanding VA treatment records. 4. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed left hip and bilateral knee disabilities. The electronic claims file must be reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: Concerning the left hip disability: a) Are the Veteran's complaints of left hip pain attributable to a known pathophysiology or etiology? b) If the left hip pain is attributable to a known pathology, is it at least as likely as not (a fifty percent probability or greater) that the left hip disability was caused by the service-connected bilateral pes planus or heel spurs? c) If the bilateral pes planus or heel spurs did not cause the left hip disability, is it at least as likely as not (a fifty percent probability or greater) that the left hip disability was aggravated (permanently worsened beyond its natural progression) by the bilateral pes planus or heel spurs? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the left hip disability by the service-connected disability. d) If the left hip disability was not caused or aggravated by the bilateral pes planus or heel spurs, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's left hip disability is otherwise related to his active duty service? Concerning the bilateral knee disabilities: a) Are the Veteran's complaints of bilateral knee pain attributable to a known pathophysiology or etiology? b) If an etiology is present, is it at least as likely as not (a fifty percent probability or greater) that bilateral knee disabilities were caused by the service-connected bilateral pes planus or heel spurs? c) If the bilateral pes planus or heel spurs did not cause the bilateral knee disabilities, is it at least as likely as not (a fifty percent probability or greater) that the bilateral knee disabilities was aggravated (permanently worsened beyond its natural progression) by the bilateral pes planus or heel spurs? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the bilateral knee disabilities by the service-connected disability. d) If the bilateral knee disabilities were not caused or aggravated by the bilateral pes planus or heel spurs, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's left or right knee disabilities are otherwise related to his service? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 5. Thereafter, readjudicate the issues of entitlement to increased ratings for PTSD and hypertension, entitlement to service connection for a bilateral knee disability and a left hip disability, and entitlement to TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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). _________________________________________________ H. N. SCHWARTZ 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 your appeal. 38 C.F.R. § 20.1100(b) (2015).