Citation Nr: 1805320 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-39 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for depression, to include as secondary to the Veteran's service-connected disabilities. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to depression. 3. Entitlement to an increased disability rating for chronic kidney disease with hypertension, currently rated as 30 percent disabling. 4. Entitlement to an increased disability rating for diabetes mellitus with erectile dysfunction, currently rated as 20 percent disabling. 5. Entitlement to an increased disability rating for peripheral neuropathy, sciatic nerve and external popliteal nerve, right lower extremity, evaluated as 20 percent disabling from March 28, 2011 to July 22, 2013. 6. Entitlement to an increased disability rating for peripheral neuropathy, sciatic nerve and external popliteal nerve, left lower extremity evaluated as 20 percent disabling from March 28, 2011 to July 22, 2013. 7. Entitlement to an increased disability rating for peripheral neuropathy, femoral anterior crural nerve, right lower extremity (previously evaluated as sciatic nerve), evaluated as 20 percent disabling from July 22, 2013. 8. Entitlement to an increased disability rating for peripheral neuropathy, femoral anterior crural nerve, left lower extremity (previously evaluated as sciatic nerve), evaluated as 20 percent disabling from July 22, 2013. 9. Entitlement to an increased disability rating for peripheral neuropathy, radial nerve (to include median and ulnar nerve) right upper extremity, currently rated as 20 percent disabling. 10. Entitlement to an increased disability rating for peripheral neuropathy, radial nerve (to include median and ulnar nerve) left upper extremity, currently rated as 20 percent disabling. 11. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: J. Michael Woods, Esquire ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty in the United States Army from July 1964 to June 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2014 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader. The Board has reviewed the electronic records maintained these systems 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 Depression The Veteran maintains that he is entitled to service connection for depression, to include as secondary to his service-connected disabilities. The Board notes that in a September 2011 private treatment record from All Points Medical lists diagnoses of sleep apnea, diabetes mellitus type II, chronic kidney disease, neuropathy, hyperlipidemia, and hypertension, with no mention of depression. The Board further notes that in September 2011 and February 2012 private treatment records from Sawan Medical Group, the Veteran denied both anxiety and depression. In a mental disorders disability benefits questionnaire (DBQ) from Dr. R. W., a private psychologist, it was noted that the "Veteran reported loss of his wife [in July 2015] and parents passed since service which aggravated his depression to some extent, but confirmed root cause of his depression is caused from his service connected medical problems to present." The doctor opined that the February 2017 clinical examination of the Veteran shows that his depression is more likely than not caused by his service-connected disabilities. In the attached private psychological opinion dated February 2017, Dr. R. W. stated that the Veteran suffers from depression with anxious distress features and opined that it is more likely than not caused by his service-connected medical conditions. The doctor referenced the DSM V stating that "an individual with co-occurring depressive disorder and debilitating medical problems" will have symptoms that are displayed by the Veteran. Furthermore, the doctor referenced literature which discusses "the emergence of co-occurring mental and physical health problems within the military." The doctor also noted studies which state Veterans are at a high risk of psychiatric disorders which impedes their ability to find employment. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997 ), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the doctor states the "confirmed root" of the Veteran's depression is his service-connected medical problems, but the doctor's opinion is a conclusory statement with no reasoned rationale. The literature referenced by the doctor consists of general statements which do not support the doctor's conclusory statement that the Veteran's depression is caused by his service-connected disabilities, and in fact is more geared towards supporting an argument for TDIU than for supporting secondary service-connection. The Board finds that these matters should be remanded to afford the Veteran a VA examination to determine the nature and etiology of his depression. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Delisio v. Shinseki, 25 Vet. App. 45 (2011). Additionally, see 38 C.F.R. § 19.9 (2017). VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A (a) (2012); 38 C.F.R. § 3.159 (c), (d) (2017). Sleep Apnea In a sleep apnea DBQ dated March 2017, Dr. H. S., a private physician, stated that upon reviewing records from Kaiser Permanente and All Points Medical Group, the Veteran suffers from obstructive sleep apnea (OSA). The doctor noted that "[r]esearch has shown that psychiatric disorders are commonly associated with OSA," and stated that he "feel[s] it is as likely as not [the Veteran's] depressive disorder aided in the development of OSA and has permanently aggravated his OSA." Because the matter of service connection for depression is being remanded, the Board finds that the matter of service connection for sleep apnea could be affected by the results of that remand. As such, it is inextricably intertwined with the claim being developed. See, Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, remand is also warranted with regard to the issue of entitlement to service connection for sleep apnea. Additionally, the Board notes that the March 2017 opinion of Dr. H. S. references medical documents from Kaiser Permanente and All Points Medical Group. The Board further notes that only one document from All Points Medical, and some records from Kaiser Permanente dated in 2010, have been associated with the record. Because of this, remand is required to obtain outstanding treatment records for this issue. Increased Rating for Service-Connected Disabilities The Veteran maintains that he is entitled to higher disability ratings for all of his service-connected disabilities. Initially, the Board notes that very few VA treatment, as well as private medical records, that have been associated with the claims file. As such, a remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims of entitlement to an increased disability rating. See 38 C.F.R. § 19.9 (2017). VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A (a) (2012); 38 C.F.R. § 3.159 (c), (d) (2017). Furthermore, the Board notes that the Veteran was last afforded VA examinations for rating purposes in March 2014. As such, the need for a thorough and contemporaneous evaluation, as well as the age of the last examination, weigh in favor of remand for a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also, Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also 38 C.F.R. § 3.326 (a). TDIU As the outcome of the claim for a TDIU could be affected by the results of the above remands, it is inextricably intertwined with the claims being developed. Harris, 1 Vet. App. 180, 183 (1991). Therefore, remand is also warranted with regard to the issue of entitlement to TDIU. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA treatment records. All records obtained must be associated with the record. 2. The AOJ should undertake appropriate development to obtain medical treatment records from Kaiser Permanente, All Points Medical Group, and any other private healthcare provider that are relevant to these matters. All records obtained must be associated with the claims file. All efforts to obtain these records must be documented in the claims file. 3. After, and only after, completion of steps one and two above, arrange for the Veteran to undergo VA examinations with appropriate clinicians to determine the following: a. For the Veteran's claimed depression and obstructive sleep apnea disabilities: The examiner(s) must review the Veteran's claims file and elicit a full history from the Veteran regarding the symptoms of his claimed depression and obstructive sleep apnea disabilities to determine their nature and etiologies. All necessary tests and studies should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner(s) should offer opinions addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's claimed depression disability had its clinical onset during active service or is otherwise related to any in service disease, event, or injury. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed depression disability is caused or aggravated by a service-connected disability or disabilities. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's claimed obstructive sleep apnea disability had its clinical onset during active service or is otherwise related to any in service disease, event, or injury. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed obstructive sleep apnea disability is caused or aggravated by a service-connected disability or disabilities. Further, the examiner(s) must elicit from the Veteran, and record for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner(s) should comment on the occupational and functional impairment caused by each claimed disability. b. For the Veteran's claims for increased ratings: The examiner(s) must review the Veteran's claims file and elicit a full history from the Veteran regarding the symptoms of each service-connected disability claimed for increased rating purposes to determine its current manifestations and severity. All necessary tests and studies should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. Further, the examiner(s) must elicit from the Veteran, and record for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner(s) should comment on the occupational and functional impairment caused by each disability. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 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 it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 4. If, after completing the requested actions and all additional development deemed warranted, the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant 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). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).