Citation Nr: 18140318 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 08-33 824 DATE: October 2, 2018 REMANDED Entitlement to an increased disability rating in excess of 20 percent for a low back disability is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for a bilateral foot disability, to include pes planus is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected low back disability and cervical spine and bilateral shoulder disabilities is remanded. Entitlement to service connection for a disability manifested by chest pain (excluding hiatal hernia with gastroesophageal reflux disease (GERD)), to include coronary artery disease is remanded. Entitlement to service connection for hemorrhoids is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REASONS FOR REMAND The Veteran served on active duty from June 1975 to May 1978, and from October 1979 to October 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2008, July 2010, August 2010, and May 2014 rating decisions, respectively, by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In January 2017, the Veteran testified at a hearing at a local RO (i.e., Travel Board hearing) before the undersigned. In a June 2017 decision, the Board, in part, denied an increased disability rating in excess of 20 percent for a low back disability and denied reopening a previously denied claim for service connection for sinusitis. The Veteran appealed the Board’s decision with respect to the increased rating and new and material claims to the United States Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the Parties) filed a Joint Motion for Partial Remand (JMPR), leaving undisturbed the claims that had been remanded and the Board’s denial of a claim for service connection for hypothyroidism. In a June 2018 Order, the Court granted the motion and remanded the increased rating and new and material claims to the Board. In its June 2017 decision, the Board, in part, found that new and material evidence had not been received to reopen a previously denied claim for service connection for sinusitis. The Parties argued that the Board had not provided an adequate statement of reasons or bases in finding that an October 2000 rating decision was final as to the issue of entitlement to service connection for sinusitis. Specifically, the Parties maintained that the Board had not discussed certain evidence as to whether the Veteran had received proper notice of the RO’s October 2000 rating decision. In this regard, in an October 2000 rating action, the RO, in part denied service connection sinusitis. VA received the Veteran’s timely notice of disagreement with the RO’s October 2000 rating action in February 2001. On February 8, 2003, VA received from the Veteran VA Form 572,Change of Address, wherein he notified VA of his new address. In mid-February 2003, the RO sent the Veteran a Statement of the Case, enclosed with VA Form 9, to his previous address. The Veteran did not receive the February 2003 SOC and, as a result, was unable to file his VA Form 9 and timely appeal of the RO’s October 2000 denial of the claim for service connection for sinusitis. There is no evidence in the claims file that the AOJ ever re-sent notice of the February 2003 SOC to the Veteran to his current (then) address and there is otherwise no evidence that he was ever notified of this decision and of his right to appeal the October 2000 rating decision. Hence, because the Veteran did not receive notice of the 2003 SOC, the October 2000 rating decision did not become final as to the denial of service connection for sinusitis. See 38 U.S.C. 5104 (a) (2012) (Secretary to provide to each VA-benefits claimant timely notice of any VA-benefits adjudication decision accompanied by “an explanation of the procedure for obtaining review of the decision”); AG v. Peake, 536 F.3d 1306, 1307 (Fed. Cir. 2008)(failure to notify a claimant of his right to appeal an RO decision, as required by 38 U.S.C. 5104 (a) and 38 C.F.R. 3.103 (b), renders the decision non-final); 38 C.F.R. 3.103 (b) (2017). Thus, the claim for service connection for sinusitis will be adjudicated on a de novo basis and new and material evidence is not required. In June 2017, the Board also remanded the issue of entitlement to service connection for left leg numbness. In a March 2018 rating decision, the RO granted service connection for lumbar radiculopathy, sciatic nerve, left lower extremity; an initial 10 percent rating was assigned, effective March 14, 2013. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial 10 percent rating or effective date assigned, thus, this matter is not in appellate status. See Grantham, 114 F. 3d at 1158 holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Thus, the only issues remaining or appellate consideration are those listed on the title page. Regarding the claim for service connection for headaches, the Veteran has maintained that they are secondary to his service-connected low back disability and bilateral shoulder and cervical spine disabilities. (See VA Form 21-4138, Statement in Support of Claim, received by VA in March 2014). Thus, the Board has characterized the claim for service connection for headaches to accurately reflect the Veteran’s contention and the secondary theory of entitlement as reflected on the title page. The issue of whether new and material evidence has been received to reopen a previously denied claim for service connection for hypothyroidism has been raised by the record in a June 2018 statement, authored by the Veteran’s representative. (See June 2018 written argument to the Board, authored by the Veteran’s representative). As the Veteran’s representative’s written argument is dated subsequent to March 24, 2015, the Veteran, along with his representative, are advised that to file a claim, he must complete and submit a VA Form 21-526 EZ indicating his intention to claim service connection for hypertension. In addition, as the Veteran has maintained that he is unable to maintain employment, in part, due to his service-connected low back disability, his claim of entitlement to TDIU is part and parcel of the current claim for an increased rating for this disability. (See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received by VA in May 2013; Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). The Board finds that additional development is warranted prior to further appellate consideration of the claims. First, and with respect to the claim for an increased disability rating in excess of 20 percent for a low back disability, the Parties to the JMPR agreed that in denying the claim in its June 2017 decision, the Board had not complied with the duty to assist. Specifically, in October 2013, the Veteran had submitted VA Form 21-4142s, Authorization for Release of Information, requesting that the RO obtain his private treatment records from the following providers: (i) Felix Orthopedics from May 2013 to the present; (ii) The Spine Center from January 2013 to the present; (iii) SE Spine Care and Management from January 2012 to the present; and, (iv) Neuro Spinal and Headaches, dated from January 2013 to the present. To date, the record does not reflect that the RO has attempted to obtain these private treatment records. Upon remand, the RO should send the Veteran a VA Form 21-4142 and request that he provide either the records or authorization for VA to obtain these records, as they may be pertinent to the increased rating claim for a low back disability. (The parties to the JMPR also agreed that in denying the claim, the Board had relied upon an inadequate April 2017 VA examination report of the lumbar spine (the Board notes that the correct date of the VA Back Disability Benefits Questionnaire report is March 3, 2017). The Parties agreed that an updated VA examination, which complied with the Court’s recent holding in Correia v. McDonald, 28 Vet. App. 158 (2016), was necessary. The Board notes that a February 2018 VA Back Disability Benefits Questionnaire (DBQ) complies with the requirements outlined in Correia; thus, re-examination of the lumbar spine is not required)). Second, and concerning all claims on appeal, the Board finds that a remand is also required to obtain outstanding Social Security Administration (SSA) records. In his May 2013 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran indicated that he either receives or expects to receive disability retirement benefits. However, records from the SSA are not contained in the claims file and it does not appear that an attempt has been made to obtain these records. As these records would be relevant to the issues on appeal, VA has an obligation to attempt to retrieve these records. The Board also finds that a remand is required to have the Veteran scheduled for VA examinations in conjunction with his claims for service connection for sinusitis and hemorrhoids. The Veteran seeks service connection, in part, for hemorrhoids and sinusitis. The Veteran maintains that these disabilities had their onset during military service and that they have continued since that time. (Transcript (T). at pages (pgs.) 20-23, 35-37)). The Veteran’s service treatment records (STRs) pertinently reflect that he had received treatment for sinusitis in July 1983, August 1981 and September and October 1989. An undated service treatment record (STR) reflects that the Veteran complained of having had hemorrhoids for the previous three (3) days. An assessment of hemorrhoids was entered. Service separation examination reports, dated in March 1978 and August 1996, reflect that the Veteran’s sinuses and anus and rectum were evaluated as “normal.” On a Report of Medical History, dated in August 1996, the Veteran indicated that he had had sinusitis. The Board observes that the Veteran has not been provided VA examinations to determine the etiology of any currently diagnosed sinusitis and hemorrhoids. Notably, the Veteran has not been afforded VA examinations to determine the etiology of any currently diagnosed sinusitis and hemorrhoids, despite evidence of in-service treatment for these disabilities and his testimony of continuous symptomology since military service. Therefore, these claims must be remanded for VA examinations and opinions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The TDIU claim is also intertwined with the service connection claims on appeal, since it is based on service-connected disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The RO should contact the Veteran and his representative and request that the Veteran complete, sign, and return a VA Form 21-4142, Authorization and Consent to Release Information to allow VA to request the Veteran’s complete private records from Felix Orthopedic, dated from May 2013 to the present; The Spine Center, dated from January 2013 to the present; SE Spine Care and Management, dated from January 2012 to the present; and, Neuro Spinal and Headaches, dated from January 2013 to the present; and, any other private treatment facility where he received treatment. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Contact the SSA and obtain a copy of that agency’s decision concerning the Veteran’s claim for disability benefits, including any medical records used to make the decision. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed sinusitis. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed sinusitis had onset in, or is otherwise related to, active military service. The examiner must consider the Veteran’s assertions of an in-service sinusitis and continuous symptomatology since discharge. The examiner must also specifically consider the assessments of sinusitis contained in the Veteran’s STRs in July 1983; August 1987 and September and October 1989, as well as the Veteran’s complaints of having had sinusitis on an August 1996 Report of Medical History. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed hemorrhoids. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed hemorrhoids had onset in, or is otherwise related to, active military service. (Continued on the next page)   The examiner must consider the Veteran’s assertions of an in-service hemorrhoids and continuous symptomatology since discharge. The examiner must also specifically consider the assessment of hemorrhoids in the STRs. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel