Citation Nr: 1746949 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-34 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating greater than 50 percent prior to March 28, 2013 and a disability rating greater than 70 percent beginning March 28, 2013 for posttraumatic stress disorder (PTSD) due to military sexual trauma. 2. Entitlement to a disability rating greater than 20 percent for old compression fracture deformity, L-1, with associated chronic lumbosacral strain and degenerative joint disease. 3. Entitlement to service connection for a right hip disorder (other than the Veteran's already service-connected right lower extremity radiculopathy), to include as secondary to a service-connected disability. 4. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 27, 2013, to include on an extraschedular basis. ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from November 1976 to December 1979. This matter came before the Board of Veterans' Appeals (Board) on appeal from April 2012 and July 2013 ratings decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The April 2012 decision, in part, granted service connection for PTSD, assigning a 50 percent disability rating effective December 27, 2010, continued a 20 percent disability rating for the Veteran's lumbar spine disorder, and denied service connection for a right hip disorder. The July 2013 rating decision denied service connection for sleep apnea. In a January 2014 rating decision, the RO granted an increased rating of 70 percent for his PTSD effective March 28, 2013. Because the higher rating for the PTSD did not constitute a full grant of the benefit sought as a higher rating is still possible and the Veteran has not indicated he is satisfied or content with the ratings assigned, the granting of the higher rating did not abrogate his pending appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Also in the January 2014 rating decision, the RO granted a TDIU effective August 27, 2013. The Veteran submitted a formal claim for a TDIU in August 2011 but the record shows that the Veteran has been unemployed since August 2009. During the course of his appeal for higher ratings for his PTSD and lumbar spine disabilities stemming back to December 2010, the Veteran has alleged that his PTSD and lumbar spine disabilities have prevented him from working. As such, the claim for a TDIU prior to August 27, 2013 is inferred with the claims for higher rating and evidence that the Veteran was unemployed prior to August 27, 2013. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This appeal was processed using the Veteran Benefits Management System (VBMS) and Virtual VA paperless claims file systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With regard to the PTSD issue, the Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his PTSD. In this regard, he was most recently afforded a VA examination in January 2012. At that time, there was no evidence of either suicidal ideation or persistent danger of hurting self or others. However, since such time, VA treatment records dated as early as September 2013 show a history of self-mutilation, suicidal ideation with a plan, and chronic self-harming behaviors. The Veteran has also alleged an increase in his PTSD symptomatology. In March 2014 correspondence, the Veteran described an inability to function in life due to "debilitating depression, overwhelming and paralyzing anxiety, and terrifying rages." Therefore, as the evidence suggests that the Veteran's PTSD may have increased in severity since the January 2012 VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). With regard to the lumbar spine issue, the Board notes that the Veteran's lumbar spine was last examined in September 2014. Significantly, this examination showed range of motion findings but does not indicate whether the findings were on both active and passive motion and/or in weight-bearing and nonweight-bearing. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. As the September 2014 VA examination report does not comply with Correia, the Veteran must be afforded a new VA examination. With regard to the right hip issue, the Veteran's service treatment records are negative for right hip complaints. Post-service medical evidence shows a diagnosis of acute right hip bursitis in September 2008 and a diagnosis of mild degenerative changes of the right hip in August 2009. The Veteran contends that he has a right hip disorder which is secondary to his service-connected lumbar spine disorder. Significantly, the Veteran was afforded a VA peripheral nerves examination in September 2014 at which time he was diagnosed with right lower radiculopathy secondary to the Veteran's lumbar spine disability and, by rating decision dated in October 2014, the RO granted service connection for right lower extremity radiculopathy. No medical opinion has been obtained to determine whether the Veteran's diagnosed right hip bursitis and/or arthritis is secondary to or aggravated by either the Veteran's service-connected lumbar spine disability or his newly service-connected right lower radiculopathy. As there is medical evidence of a right hip disorder (other than the already service-connected right lower radiculopathy) which may be associated with his service-connected disabilities, a VA examination as to this issue is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the sleep apnea issue, the Veteran contends that such is secondary to a service-connected disability, specifically his PTSD. In connection with this claim, he was afforded a VA sleep apnea examination in September 2014. The examiner noted that the Veteran underwent a sleep study in 2003 and was diagnosed with sleep apnea. The examiner opined that it was less likely as not that the Veteran's sleep apnea had its onset, or was caused by his military service, and/or was caused or aggravated by his service-connected PTSD. Specifically, the examiner wrote that sleep apnea is a mechanical condition and not affected by mental health. The examiner also wrote that there was nothing in the medical records to support that his symptoms began before his discharge from military service in 1979, in fact, the record showed that his symptoms began around 2001. While a medical opinion has been obtained regarding the possible connection between the Veteran's sleep apnea and his service-connected PTSD, no medical opinion has been obtained regarding a possible connection between the Veteran's sleep apnea and any other service-connected disability, to include his service-connected lumbar spine disability. Significantly, a March 2012 VA treatment record shows that the Veteran had gained 100 pounds since his last sleep study which was "due to back pain." This record also suggested that the Veteran's sleep apnea had increased in severity due, at least in part, to his dramatic weight gain. VA's General Counsel recently held that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017. As there is an indication that the Veteran's obesity may be considered an "intermediate step" between the Veteran's sleep apnea and his service-connected lumbar spine disability, further medical opinion is necessary. With regard to the issue concerning the assignment of a TDIU prior to August 27, 2013, the Veteran submitted a formal claim for a TDIU in August 2011. However, the record shows that the Veteran has been unemployed since August 2009 and has been in receipt of disability benefits from the Social Security Administration since September 2009. During the course of his appeal for higher ratings for his PTSD and lumbar spine disabilities stemming back to December 2010, the Veteran has alleged that his PTSD and lumbar spine disabilities have prevented him from working. A TDIU may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran's service-connected disabilities presently include PTSD due to sexual trauma (rated as 50 percent disabling beginning December 27, 2010 and rated as 70 percent disabling beginning March 28, 2013); old compression fracture deformity, L-1, with associated chronic lumbosacral strain and degenerative joint disease (rated as 20 percent disabling beginning November 30, 1982); right lower extremity radiculopathy (rated as 20 percent disabling beginning December 2, 2013); residuals of a right 5th metacarpal fracture with laceration (rated as noncompensably disabling effective December 16, 1980); and scar of the right 5th metacarpal (rated as noncompensably disabling effective December 14, 2010). A combined disability evaluation of 20 percent is in effect beginning November 30, 1983, 60 percent beginning December 27, 2010, and 80 percent beginning March 28, 2013. Therefore, the Veteran did not meet the minimum schedular criteria for a TDIU prior to March 28, 2013 but does meet such criteria beginning March 28, 2013. 38 C.F.R. § 4.16(a). The remanded issues concerning higher ratings for the Veteran's PTSD and lumbar spine disabilities are inextricably intertwined with the Veteran's claim for a TDIU prior to August 27, 2013 and must first be addressed by the AOJ. Harris v. Derwinski, 1 Vet. App. 180 (1991). Furthermore, with regard to all five issues, it appears that there are missing VA treatment records. Specifically, the January 2014 rating decision increased the Veteran's disability rating for his PTSD from 50 percent to 70 percent effective March 28, 2013 based on a March 28, 2013 VA treatment record showing an increase in PTSD symptomatology. Significantly, the rating decision, as well as a January 2014 supplemental statement of the case, referred to VA treatment records from Ann Arbor and Detroit dated from June 2001 to December 2013. While the electronic claims file currently contains VA treatment records dated prior to June 2001 and beginning August 2013, with the exception of VA treatment records dated from February 2012 to May 2012, there are no other records, to include the March 28, 2013 treatment record referred to in the January 2014 rating decision. Such records should be associated with the claims file on remand, if available. Additionally, a review of the claims file includes VA treatment records dated through December 2013. The Veteran should be given an opportunity to identify any outstanding VA or non-VA treatment records for his claimed disabilities. Thereafter, all identified records, to include VA records dated from December 2013 to the present, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding VA or non-VA treatment records pertinent to his claimed disabilities. Request that the Veteran provide sufficient information and, if necessary, authorization to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. All adequately identified records should be obtained, to include the outstanding VA treatment records from Ann Arbor and Detroit dated from June 2001 to December 2013 referred to in the January 2014 supplemental statement of the case as well as VA treatment records dated since December 2013. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to taken. 2. Thereafter, schedule the Veteran for an appropriate VA examination to identify the nature, extent and severity of all manifestations of his service-connected PTSD. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. In addressing the above, the examiner is to consider all pertinent medical and other objective evidence, and all lay assertions to include the VA treatment records dated as early as September 2013 showing a history of self-mutilation, suicidal ideation with a plan, and chronic self-harming behaviors Additionally, the examiner should describe the functional effects the Veteran's service-connected PTSD has on the Veteran's ability to perform the activities of daily living, to include the mental acts required for employment since December 2010 (the date of claim). A complete rationale for the opinions expressed should be provided. If the reviewer cannot provide any of the requested opinions without resort to speculation, that conclusion also should be explained. 3. Schedule the Veteran for an appropriate VA examination to identify the nature, extent and severity of all manifestations of his service-connected lumbar spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If such testing cannot be performed, the examiner should indicate why this is the case. Additionally, the examiner should describe the functional effects the Veteran's service-connected lumbar spine disability has on the Veteran's ability to perform the activities of daily living, to include the physical acts required for employment since December 2010 (the date of claim for an increase). A complete rationale for the opinions expressed should be provided. 4. Schedule the Veteran for a VA examination to determine whether the Veteran has a right hip disorder(s) other than right lower extremity radiculopathy, to include right hip bursitis and/or arthritis, and, if so, whether such disorder(s) is/are related to the Veteran's military service or his service-connected lumbar spine and/or right lower radiculopathy disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. Initially, the examiner should identify all right hip disorders found, other than right lower radiculopathy, to include right hip bursitis and/or arthritis. The examiner should then opine as to whether each disorder found, more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include the same injury which resulted in the Veteran's lumbar spine disability. Next, the examiner should opine whether each right hip disorder is more likely, less likely or at least as likely as not caused by his service-connected lumbar spine and/or right lower radiculopathy, to include any resultant abnormal gait or weightbearing due to such disabilities. Finally, the examiner should also state whether it is at least as likely as not that the Veteran's service-connected lumbar spine and/or right lower radiculopathy have aggravated any right hip disorder, again to include any resultant abnormal gait or weightbearing due to such disability, as noted above. The examiner should consider the Veteran's lay statements regarding symptomatology and any other pertinent evidence in the claims file, to include the diagnosis of acute right hip bursitis in September 2008 and a diagnosis of mild degenerative changes of the right hip in August 2009. A complete rationale for the opinions expressed should be provided. 5. Request an addendum to the September 2014 VA sleep apnea examination. Access to the electronic claims file should be made available to the examiner. If the September 2014 VA examiner is not available, the claims file should be provided to an appropriate examiner to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should be asked to provide an opinion as to whether it is at least as likely as not that his sleep apnea is cause or aggravated by the Veteran's lumbar spine disability. The examiner should specifically discuss each of the following: (1) whether the Veteran's service-connected back disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the back disability was a substantial factor in causing or aggravating sleep apnea; and (3) whether the sleep apnea would not have occurred but for obesity caused by the service-connected back disability. See VAOPGCPREC 1-2017. A complete rationale for the opinions expressed should be provided. 6. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims, to include entitlement to a TDIU prior August 27, 2013 on either a schedular or extraschedular basis, should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran, and his representative, should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ V. CHIAPPETTA 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) (2016).