Citation Nr: 18145464 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 12-19 344 DATE: October 29, 2018 REMANDED Entitlement to a rating in excess of 50 percent prior to June 8, 2016, and in excess of 70 percent from June 8, 2016, for posttraumatic stress disorder (PTSD) with secondary depressive and anxiety disorders is remanded. Entitlement to a rating for diabetes mellitus, type II in excess of 20 percent, is remanded. Entitlement to service connection for an eye disability, to include as secondary to service-connected diabetes mellitus type II, is remanded. Entitlement to service connection for a condition manifested by memory loss, to include as secondary to service-connected stroke, is remanded. Entitlement to an effective date prior to November 26, 2009, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to April 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from January 2011, March 2012, and September 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran’s July 2012 and June 2013 substantive appeal (VA Form 9), he requested a Board videoconference hearing before a Veterans Law Judge. However, in a November 2016 communication, he withdrew his request for a Board videoconference hearing. 38 C.F.R. § 20.704(e) (2017). 1. Entitlement to an increased rating for PTSD with secondary depressive and anxiety disorders; entitlement to an increased rating for diabetes mellitus, type II; entitlement to service connection for an eye disability; and entitlement to service connection for a condition manifested by memory loss, are remanded. A. Initial AOJ Review Following the September 2016 supplemental statement of the case (SSOC), VA added additional medical evidence to the Veteran’s file. Pertinent evidence is initially reviewed by the agency of original jurisdiction (AOJ). Additional pertinent evidence that becomes available after the RO’s statement of the case (SOC) but prior to certification to the Board is to be addressed in an additional SSOC. 38 C.F.R. § 19.31(b). After certification to the Board, such evidence must be referred back to the AOJ for initial review. 38 C.F.R. §§ 19.37(b) and 20.1304(c). Exceptions are when the Veteran or his representative waives this review, or when the Board grants the benefit being sought in full. Id. In this case, the AOJ added pertinent VA treatment records after the case was certified to the Board. Neither the Veteran nor his representative responded to the Board’s April 2018 letter asking if they wanted to waive initial AOJ review of such evidence. As such, the Board will assume that they would like to have the AOJ complete such initial review and such should be completed on remand. B. VA Examinations The Veteran was last examined by VA regarding the severity of his diabetes and psychiatric disorder in June 2016. Subsequently, in a statement received in July 2016, the Veteran reported that his diabetes was out of control. Additionally, an October 2016 VA treatment record indicates that the Veteran’s spouse had noticed an increase in the Veteran’s psychiatric symptoms. As such, new examinations assessing the current severity of these conditions should be completed. Regarding the eye disability claim, in a November 2011 VA examination report, the Veteran was diagnosed with cataracts, right and left hypertropia, and diplopia, but an etiology opinion was not provided. In a December 2011 opinion, the examiner diagnosed the Veteran with mild cataracts, a broken down hyperphoria that has resulted in a residual “light hypertropia.” The examiner stated that it is at least as likely as not that the Veteran’s broken down “right hypertropia” is due to an old cranial nerve 4 palsy on the right side resulting in hypertropia due to his diabetes. The Board finds this opinion to be inadequate. It is not clear whether the examiner diagnosed the Veteran with a right hypertropia or light hypertropia, because the diagnosis section refers to “light hypertropia” and the opinion section speaks of “right hypertropia.” There is also no opinion provided regarding the left hypertropia diagnosed in the examination report. As such, the report does not contain clear conclusions. Additionally, the examiner’s opinion is conclusory and lacks an explanation. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In March 2012, the same examiner who provided the November 2011 etiology opinion provided an addendum. In it, he stated that the Veteran suffers from broken down hypertropia which is not related to his service-connected diabetes mellitus type II. The examiner added that the Veteran has age appropriate cataracts, which are also not related to his service-connected diabetes mellitus type II. The Board finds this opinion to be inadequate. The examiner does not provide a rationale for the opinion. Moreover, he does not reconcile the negative opinion with the November 2011 opinion, in which he linked hypertropia to diabetes. Consequently, these opinions are inadequate for the Board to rely on in evaluating the Veteran’s service connection claim. Thus, a new examination and opinion—based on full review of the record and supported by stated rationale—is needed to fairly resolve the Veteran’s claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Regarding the claim for a condition manifested by memory loss, in July 2010, the Veteran underwent a VA examination. The examiner noted the Veteran has slightly decreased balance, slightly decreased memory formation, and sleep disturbance. The examiner stated, “there are multiple factors involved in his higher cerebral function symptoms” including depression and possible sleep apnea. The examiner opined that changes in cerebral function are at least as likely as not related to the Veteran’s service-connected stroke. The examiner qualified this opinion with, “this, however, is only one of multiple influences on his higher cerebral function.” The Board does not find this opinion adequate. The examiner’s opinion is conclusory and lacks an explanation on the other influences. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In October 2010, an examiner found no significant memory impairment, but noted the Veteran presented with diminished concentration. The examiner opined that in his opinion the Veteran’s concentration was associated with his depressive symptoms. The Board finds this opinion to be inadequate because the examiner did not provide a rationale for the conclusions reached. Consequently, these opinions are inadequate for the Board to rely on in evaluating the Veteran’s service connection claim. Thus, a new examination and opinion—based on full review of the record and supported by stated rationale—is needed to fairly resolve the Veteran’s claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 2. Entitlement to an effective date prior to November 26, 2009, for the award of TDIU is remanded. A September 2016 rating decision awarded TDIU, effective November 26, 2009. The rating decision indicated that the claim for TDIU had been reasonably raised as part of the claim seeking increased ratings for PTSD and diabetes, which was received on June 14, 2010. The RO noted that the effective date of November 26, 2009 was granted as it was the day after the Veteran last worked and was within a year prior to the Veteran’s claim for increase. In an Informal Hearing Presentation received in February 2017, the Veteran’s representative indicated that the Veteran feels he is entitled to TDIU prior to November 26, 2009. As the TDIU claim was part and parcel of the increased rating claim received on June 14, 2010 and there remains a period of time during the one-year period prior to the date of receipt of that claim, the Board finds the earlier effective date claim is part of the original increased rating claim. Therefore, the question of entitlement to TDIU prior to November 26, 2009 remains on appeal as part of the original TDIU claim, even in the absence of a specific notice of disagreement on the matter. The matter of entitlement to TDIU prior to November 26, 2009 is inextricably intertwined with some of the issues being remanded; therefore, adjudication is deferred until the development requested has been completed. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records from June 2017 to the present. 2. After completing the development requested in item 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature, extent, and etiology of his eye disability. The examiner is asked to provide an opinion on the following questions: (a.) Identify all current chronic eye disabilities that have existed since January 2011. (b.) Is it at least as likely as not that any diagnosed eye condition, to include cataracts, right and left hypertropia, and diplopia, was caused by the Veteran’s service-connected diabetes mellitus type II? (c.) Is it at least as likely as not that any diagnosed eye condition, to include cataracts, right and left hypertropia, and diplopia, was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected diabetes mellitus type II? In providing opinions on these questions, the examiner is asked to discuss the November 2011 and March 2012 VA examiner’s opinions. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After completing the development requested in item 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature, extent, and etiology of his claimed disorder manifested by memory loss. The examiner is asked to provide an opinion on the following questions: (a.) Identify all current chronic disorders manifested by memory loss that have existed since June 2010 that are separate disabilities from the Veteran’s service-connected stroke and psychiatric disorder, and not just a symptom of those disabilities. (b.) For any condition diagnosed in conjunction with question (a.), is it at least as likely as not that such condition was caused by the Veteran’s service-connected stroke? (c.) For any condition diagnosed in conjunction with question (a.), is it at least as likely as not that such condition was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected stroke? In responding to these questions, the examiner is asked to discuss the cognitive tests performed at the Veteran’s May 2010 Social Security Disability examination by Dr. S.D.M. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After completing the development requested in item 1, schedule the Veteran for examinations by appropriate clinicians to determine the current severity of his service-connected psychiatric disorder and service-connected diabetes mellitus, type II. The examiners should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. 5. After completing the above actions, as well as any other development that may be warranted, readjudicate the Veteran’s claims in light of all the evidence of record, including consideration of any evidence added to the record since the September 2016 SSOC. If any benefit on appeal remains denied, in whole or in part, a SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Patel, Associate Counsel