Citation Nr: 1627366 Decision Date: 07/11/16 Archive Date: 07/22/16 DOCKET NO. 10-39 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction. 2. Entitlement to a separate compensable rating for erectile dysfunction. 3. Entitlement to service connection for an acquired psychiatric disorder other than service-connected major depressive disorder, to include posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 7, 2010. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1969 to August 1971, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A July 2008 rating decision denied an increased rating for diabetes mellitus and denied service connection for PTSD. An August 2010 rating decision granted service connection for major depressive disorder, but the denial of service connection for PTSD was continued in an August 2010 Statement of the Case. Entitlement to a separate compensable rating for erectile dysfunction was denied in a March 2009 rating decision and entitlement to TDIU was denied in a July 2009 rating decision. The Veteran withdrew his request for a hearing in February 2016. 38 C.F.R. § 20.704(e). The issue of entitlement to TDIU has been certified for appellate consideration. As the Veteran is in receipt of a schedular 100 percent rating and special monthly compensation since May 7, 2010, the issue has been re-characterized as entitlement to TDIU prior to May 7, 2010. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran has repeatedly stated throughout the appeal that he is in receipt of ongoing VA treatment for his diabetes, erectile dysfunction, and psychiatric disorder. He has identified treatment from Iowa City VA Medical Center (VAMC) to include "blue team" and the Galesburg Community Based Outpatient Clinic (CBOC). VA treatment records dated since December 2013 have not been associated with the claims file. A January 2014 lay statement provided an indication that the Veteran continues to receive regular VA treatment. Moreover, it appears that although VA treatment records prior to January 2010 are associated with the record, such treatment records are not complete as to both his mental health treatment and treatment for his diabetes and associated complications. Records of his VA treatment are constructively before VA. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Sullivan v. McDonald, 815 F.3d 786 (2016)(holding that 38 C.F.R. § 3.159(c)(3) expanded VA's duty to assist to include obtaining VA medical records without consideration of their relevance). As such, upon remand, the AOJ should associate with the claims file VA treatment records from the identified facilities dated since December 2013. Since the Veteran's increased rating claim was filed in August 2007, VA treatment records from August 2006 to January 2010 should also be associated with the claims file. The August 2010 VA examination report indicates that the Veteran may have a private primary care doctor. Although the Veteran stated that he receives his treatment through the VA, provide him an opportunity upon remand to identify any private treatment that should be associated with the claims file. Finally, as to the TDIU claim, while acknowledging that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, (see 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013)), a VA examiner opined on this question in June 2013, and that opinion is inadequate, as it does not account for the Veteran's level of education and previous work experience. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). Thus, an addendum opinion is needed. See Chotta v. Peake, 22 Vet. App. 80 (2008); Vigil v. Peake, 22 Vet. App. 63 (2008). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all outstanding records of VA treatment dated from August 2006 to January 2010 and from December 2013 forward, including all available records from the Iowa City VAMC and Galesburg CBOC for these dates ranges. 2. Invite the Veteran to identify or submit any pertinent private treatment records that are not currently associated with the claims file. 3. The claims file should be referred to a VA examiner to assess the functional effects of the Veteran's service-connected coronary artery disease, major depressive disorder, diabetes mellitus, peripheral neuropathy of the lower extremities, bypass surgery scars, hearing loss, and fungal infection of the feet on his ordinary activities, to include his employability, for the period prior to May 7, 2010. In this regard, the examiner should provide a full description of the effects the Veteran's service-connected coronary artery disease, major depressive disorder, diabetes mellitus, peripheral neuropathy of the lower extremities, bypass surgery scars, hearing loss, and fungal infection of the feet had on his ordinary activities, to include his employability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities, for the period from August 21, 2007 to May 7, 2010. All opinions expressed should be accompanied by supporting rationale. 4. Then, after conducting any additional development deemed necessary, to include updated VA examinations if worsening of the service-connected conditions is demonstrated in any updated evidence received, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ S. BUSH 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) (2015).