Citation Nr: 1802169 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-00 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 10 percent for tinnitus. 3. Entitlement to a compensable disability rating for a left knee disability. 4. Entitlement to a compensable disability rating for erectile dysfunction. 5. Entitlement to service connection for a low back disability. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his aunt ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2007 to January 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The issues other than entitlement to an increased rating for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for an increased rating for tinnitus. CONCLUSION OF LAW The criteria for withdrawal of the appeal for an increased rating for tinnitus have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn by a veteran or his or her authorized representative in writing or at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. At his April 2017 hearing, the Veteran withdrew the appeal for an increased rating for tinnitus. Thus, there remains no allegation of error of fact or law for the Board to address with respect to these issues. Accordingly, the Board does not have jurisdiction over this issue, and dismissal is warranted. ORDER The appeal for an increased rating for tinnitus is dismissed. REMAND Increased Rating for PTSD VA treatment records reflect that the Veteran has received mental health treatment through one of VA's Vet Centers. Although Vet Centers are part of VA, their records are kept separately from regular VA medical treatment records and must be requested directly from the specific Vet Center facility, accompanied by a medical authorization form signed by the Veteran. Accordingly, a remand is required to obtain these pertinent records. Moreover, the Veteran last underwent a VA Compensation and Pension examination to assess the severity of his PTSD in October 2011. Given that the medical evidence of record and the Veteran's testimony at his hearing before the Board reflect that his PTSD symptoms may have increased in severity since the October 2011 examination, the Board finds a more recent examination would be helpful. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Increased Rating for Left Knee Disability At his April 2017 hearing before the Board, the Veteran testified regarding the severity of his left knee disability and indicated it had worsened since his last VA examination in October 2011. Additionally, recently, the U.S. Court of Appeals for Veterans Claims determined that the final sentence of 38 C.F.R. § 4.59 (2017) requires that VA examinations include joint testing for pain on active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The October 2011 VA examination does not contain all the now required range of motion testing. Based on the foregoing, the Board finds a remand is necessary to afford the Veteran a more recent examination to determine the current severity of his service-connected left knee disability. See Correia, supra, see also Snuffer, 10 Vet. App. at 403. Increased Rating for Erectile Dysfunction At his April 2017 hearing before the Board, the Veteran testified that he has a deformity of the penis present. Significantly, at his last examination, performed in October 2011, no deformity was found. Given his hearing testimony and the fact that any finding of a deformity of the penis would warrant a higher rating for that disability, the Board finds a remand is required to afford him a more recent examination. See Snuffer, 10 Vet. App. at 403; see also 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2017). Service Connection for a Low Back Disability At an October 2011 VA examination, the examiner determined that the Veteran had no abnormalities of the thoracolumbar spine and determined there were no disabilities present; because there was no diagnosed disability, no medical opinion was provided. VA treatment records document that the Veteran continues to experience chronic low back pain and a November 2012 VA treatment record documents arthritis of the facet joints of the lumbar spine and bilateral sacroiliac joint arthritis. Given that the Board is prohibited from exercising independent judgment to resolve medical questions, a remand is necessary to afford the Veteran an examination and obtain a medical opinion regarding his currently diagnosed disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from exercising its own independent judgment to resolve medical questions). Further, the Veteran testified at his hearing that he receives treatment for his low back disability from a private medical provider, identified as Integrated Pain Solutions. On remand, attempts to obtain these records must be made. Service Connection for a Right Knee Disability At his October 2011 VA examination, the examiner diagnosed bilateral patellofemoral syndrome; however, no medical opinion was provided regarding the etiology of this condition. Notably, a November 2012 VA treatment record documents arthritis of the bilateral knee joints. Accordingly, a remand is required to afford the Veteran an examination and obtain a medical opinion regarding his currently diagnosed disability. See Colvin, 1 Vet. App. at 175. Entitlement to TDIU The Veteran is claiming to be unemployable due to his PTSD, bilateral knee condition, and low back condition. Recently, the Veteran's Vocational Rehabilitation records were associated with the evidence of record before the Board, but have not been considered by the Agency of Original Jurisdiction in the first instance, as required by VA regulation. Moreover, given that the issues being remanded herein are inextricably intertwined with the issue of entitlement to TDIU, particularly with regard to an increased rating for PTSD, the issue of entitlement to TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all medical providers with whom he has sought treatment for his disabilities on appeal, to include any Vet Center(s) and Integrated Pain Solutions. Request that he complete and return authorizations to allow VA to obtain any identified records on his behalf, to specifically include records from any Vet Center(s) and Integrated Pain Solutions. Upon receipt of any valid medical authorization, VA must attempt to obtain any identified records in accordance with VA regulation. See 38 C.F.R. § 3.159(c) (2017). If the Veteran submits any medical authorization that is insufficient for further action, he should be notified and requested to complete a new authorization, and any such notification should be properly documented in the claims file. Attempts to obtain identified records must be made and the Veteran and his representative must be notified of the unavailability of any records as outlined in VA regulation. See 38 C.F.R. § 3.159 (2017). 2. Obtain all outstanding VA treatment records and associate them with the evidence of record. 3. Afford the Veteran a VA examination to determine the current severity of his PTSD. The examiner must specifically document and discuss all functional and occupational impairment caused by the Veteran's PTSD. 4. Afford the Veteran a VA examination to determine the current severity of his erectile dysfunction. The examiner must specifically document whether there is any deformity of the penis present. 5. Afford the Veteran a VA examination to determine the current severity of his left knee disability AND to determine the etiology of any right knee disability found. The examiner must elicit a full history regarding the right knee condition, to include history of any incident or injury during service, as well as onset and continuity of symptoms during and since separation from service. The examination results should be recorded using the most recent version of the Knee and Lower Leg Conditions Disability Benefits Questionnaire. Both passive and active range of motion testing should be performed, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct any of the required testing, he or she must explain why this is so. Following a thorough review of the evidence of record, and with consideration of the Veteran's statements, the examiner is requested to provide the following information: a) Identify all right knee disabilities present during the period of the claim (from January 2011 to the present), to include patellofemoral syndrome (found at the October 2011 VA examination) and arthritis (noted in a November 2012 VA treatment record). If, for any reason the examiner disagrees with a previous diagnosis, he or she must provide a thorough explanation for that conclusion. b) With regard to each diagnosed right knee disability, determine whether it is at least as likely as not (50 percent probability or higher) that the right knee disability began during or is etiologically related to the Veteran's active duty service. The examiner must provide a rationale for all opinions requested, to include all those listed on the most recent Disability Benefits Questionnaire. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 6. Afford the Veteran a VA examination to determine the etiology of any thoracolumbar spine disability found. The examiner must elicit a full history regarding the Veteran's thoracolumbar spine, to include history of any incident or injury during service, as well as onset and continuity of symptoms during and since separation from service. Following a thorough review of the evidence of record, and with consideration of the Veteran's statements, the examiner is requested to provide the following information: a) Identify all thoracolumbar spine disabilities present during the period of the claim (from January 2011 to the present), to include arthritis (noted in a November 2012 VA treatment record). If, for any reason the examiner disagrees with a previous diagnosis, he or she must provide a thorough explanation for that conclusion. b) With regard to each diagnosed thoracolumbar spine disability, determine whether it is at least as likely as not (50 percent probability or higher) that the disability began during or is etiologically related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 7. The Veteran is notified that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for a VA examination without good cause may include denial of a claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 8. In order to avoid an additional remand, the medical opinions provided MUST be reviewed by the Agency of Original Jurisdiction to ensure they are supported by adequate rationale and an accurate factual basis AND that they comply with the Board's specific remand directives. If any medical opinion is found to be inadequate, corrective action must be taken at once. 9. Then, the Veteran's claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs