Citation Nr: 18143733 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-22 869 DATE: October 22, 2018 REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for precordial chest pain is remanded. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 8, 2013, from September 1, 2013 to January 24, 2016, and from April 1, 2016 is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REASONS FOR REMAND The Veteran served on active duty from September 1975 to September 1978. These matters are on appeal from a September 2012 rating decision. The Veteran had requested a hearing before a Veterans Law Judge, but cancelled the hearing scheduled for November 2018. In February 2014 and April 2016 rating decisions, temporary 100 percent evaluations were assigned for the Veteran’s service-connected PTSD from July 8, 2013 to August 31, 2013 and from January 25, 2016 to March 31, 2016 based on hospitalization over 21 days. As the maximum benefit allowable had been granted for those time periods which a temporary 100 percent evaluation was in effect, these periods are not on appeal. Since the RO did not assign the maximum disability rating possible for the entire period of time on appeal, the appeal for higher evaluations remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU rating is part and parcel of an increased rating claim when such claim is raised by the record. In this case, the Board finds that a claim for a TDIU rating has been raised by the record and is currently before the Board. In October 2018, the Veteran’s attorney filed a VA Form 9, Appeal to Board of Veterans’ Appeals, and additional evidence on issues seeking service connection for a bilateral hip condition, tinnitus, a back condition, diabetes, headaches, sleep apnea, and erectile dysfunction. The Agency of Original Jurisdiction is still processing this appeal and it is not yet ready for adjudication by the Board. As such, these issues will not be addressed by the Board at this time. Left ankle disability Regarding the claim for service connection for a left ankle disability, the Veteran underwent a VA examination in May 2012. The VA examiner opined that the Veteran’s left ankle strain was less likely than not related to service, as the ankle problems in service resolved, and the Veteran fractured his left ankle playing basketball post-service in 1980. The examiner stated that the Veteran’s current pain was related to his left ankle fracture in 1980. There are no records regarding the Veteran’s left ankle surgery in 1980. As these records could provide evidence relevant to the Veteran’s claim; remand is required to allow VA to obtain authorization if necessary, and request the treatment records regarding the Veteran’s 1980 left ankle surgery. Also, the May 2012 VA examiner provided no explanation for the finding that the Veteran’s documented in-service left ankle problems had resolved. In addition, the Board notes that the examiner provided a conclusory statement that the Veteran’s current pain was related to his left ankle fracture in 1980. As such, the Board finds that the May 2012 VA opinion is inadequate, and remand is necessary for a new VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). Precordial chest pain The May 2012 VA examiner also found that the Veteran’s precordial chest pain was less likely than not related to service. The examiner stated that the Veteran was seen once for non-cardiac chest pain, and the examiner did not think the Veteran’s current chest wall pain was the same pain. Aside from the conclusory statement that it was not the same pain, no explanation was provided. As such, the May 2012 VA opinion is inadequate and remand is also necessary in this case for a new VA examination and opinion. Id. PTSD Regarding the issue of an increased rating for PTSD, the Veteran indicated in a May 2012 VA 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs that he was receiving treatment from the VA Outpatient Clinic in Fort Smith since August 2011. A review of the evidence of record reveals that there are VA treatment records from September 2012, August 2013, and from December 2014 to October 2016. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain any missing VA treatment records prior to December 2014, as well as updated VA treatment records from October 2016 to the present. Additionally, the record reflects that the Veteran was last examined by VA in order to evaluate the severity of his disability in August 2012. A May 2017 lay statement from the Veteran’s girlfriend, A.W., and a July 2017 Disability Benefits Questionnaire from private psychologist R.W. indicates that the Veteran’s psychiatric disability may have worsened since that time. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. TDIU A remand of the TDIU rating claim is required in order for the Veteran to be notified of the requirements to establish a claim for a TDIU rating, and for him to be requested to complete a formal claim (VA Form 21-8940). The AOJ should then complete any necessary development for this claim. The matters are REMANDED for the following actions: 1. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to TDIU, including undertaking any development necessary for this claim. The Veteran should also be asked to complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability. 2. Contact the Veteran and ask him to identify the provider that performed the 1980 surgery of his left ankle. Ask the Veteran to complete a VA Form 21-4142 if necessary for the identified facility. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records from the VA Outpatient Clinic in Fort Smith for the period prior to December 2014. Also obtain all updated VA treatment records from October 2016 to the present. 4. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left ankle disability. The examiner must identify any current left ankle disability that has existed since August 2011. If it is determined that the Veteran does not have a diagnosable disability for the left ankle, then address whether any pain in the left ankle causes functional impairment. If a current disability is identified (or any left ankle pain causing functional impairment), then the examiner must opine whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s left ankle disability is related to the Veteran’s service, including treatment for left ankle problems in October 1977, November 1977, February 1978, July 1978, and August 1978. The examiner must provide a complete rationale for any opinion expressed. The opinions should address the particulars of this Veteran’s medical history, his lay statements regarding the onset of his disability and continued symptomatology since service, and the relevant medical principles as applicable to this claim. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any precordial chest pain. The examiner must identify any current disabilities manifested by precordial chest pain that has existed since August 2011. If a current disability is identified, then the examiner must opine whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any current disability manifested by precordial chest pain is related to the Veteran’s service, including treatment for musculoskeletal chest pain in March 1977. The examiner must provide a complete rationale for any opinion expressed. The opinions should address the particulars of this Veteran’s medical history, his lay statements regarding the onset of his disability and continued symptomatology since service, and the relevant medical principles as applicable to this claim. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. After receiving all additional records, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of PTSD. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel