Citation Nr: 18151153 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-33 188 DATE: November 16, 2018 REMANDED The claim of entitlement to a compensable initial disability rating for a left lower extremity deep vein thrombosis is remanded. The claim of entitlement to a compensable initial disability rating for a right lower extremity deep vein thrombosis is remanded. The claim of entitlement to an initial disability rating in excess of 10 percent prior to October 6, 2015, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD) is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from September 2003 to July 2010. The Veteran is a Gulf War Era Veteran. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction of the file currently resides with the RO in Wichita, Kansas. In the March 2013 rating decision, the RO granted service connection for the Veteran’s bilateral lower extremity deep vein thrombi, assigning a noncompensable rating effective August 24, 2011. Also in the March 2013 rating decision, the RO granted service connection for the Veteran’s PTSD, assigning a 10 percent rating effective August 24, 2011. In April 2016, the RO awarded a 50 percent rating for PTSD effective October 6, 2015. Because the RO did not assign the maximum disability rating possible, the appeal for higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). With respect to a total disability rating based on individual unemployability (TDIU), the Veteran has appealed for higher schedular ratings for his left and right lower extremity deep vein thrombi and his PTSD, and he has alleged interference with his employment due to his service-connected disabilities in his correspondence with the VA. Thus, a claim for TDIU exists. Rice v. Shinseki, 22 Vet. App. 447 (2009); see Notice of Disagreement, dated March 2014. In this case, the Veteran has raised the question of unemployability. The Board has therefore added a TDIU claim to the title page to reflect the Board's jurisdiction over this matter. Further development is needed to properly adjudicate the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The issue of whether the Veteran is entitled to an increased disability rating for his lumbar spine degenerative disc disease has been raised by the record in the representative’s brief, in which the representative asserts that the Veteran’s degenerative disc disease rating is improper and should be increased. The Board notes that the Veteran did not perfect an appeal as to the disability rating of his lumbar spine degenerative disc disease. See VA Form 9, dated September 2015. As such, this is construed as a new claim for an increased disability rating for the Veteran’s lumbar spine degenerative disc disease. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2018). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. VA has a duty to notify and assist the Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (a) (2018). VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of severity of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). Once VA decides that it is appropriate to provide a VA examination, it must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 1. Entitlement to a compensable initial disability rating for left lower extremity deep vein thrombosis is remanded. The Board first turns its attention to the Veteran’s claim for entitlement to an increased initial disability rating for his left lower extremity deep vein thrombosis. The Veteran is currently in receipt of a noncompensable rating for this disability. The Veteran received VA examinations to assess the severity of his lower extremity deep vein thrombi in September 2012 and October 2015. Both VA examinations revealed that the Veteran’s left lower extremity experienced claudication when ambulating distances greater than 100 yards. The May 2012 VA examination did not indicate that the Veteran had abnormal peripheral pulses in his left lower extremity. The October 2015 VA examination did not address peripheral pulses. Neither the September 2012 nor the October 2015 VA examination performed an ankle/brachial index. The Veteran’s left lower extremity deep vein thrombosis is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7114. 38 C.F.R. § 4.104, Diagnostic Code 7114 (2018). For a compensable rating, the Veteran must, at a minimum, demonstrate claudication on walking more than 100 yards and either diminished peripheral pulses or ankle/brachial index of 0.9 or less. Id. The Board notes that the September 2012 VA examination reports that the Veteran did not require any assistive devices, but the October 2015 VA examination noted that the Veteran required compression garments. The Board, however, is unable to substitute its own knowledge and judgment for such as an expert and, as such, may not make a judgment on rating without all of the required testing and evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As neither VA examination contained evidence of abnormal peripheral pulses and no ankle/brachial index was obtained, the examinations do not provide sufficient information to properly adjudicate this claim. Barr, 21 Vet. App. at 311. In light of the above, the Board finds that it is necessary to schedule the Veteran for a new VA examination to address the severity of his left lower extremity deep vein thrombosis. 2. Entitlement to an initial compensable disability rating for a right lower extremity deep vein thrombosis is remanded. The Board next turns its attention to the Veteran’s claim for entitlement to an increased initial disability rating for his right lower extremity deep vein thrombosis. The Veteran is currently in receipt of a noncompensable rating for this disability. The Veteran received VA examinations to assess the severity of his lower extremity deep vein thrombi in September 2012 and October 2015. The September 2012 VA examination did not indicate that the Veteran demonstrated claudication in his right lower extremity at any time, but the October 2015 VA examination noted that the Veteran experienced claudication with ambulation greater than 100 yards. The September 2012 VA examination did not indicate that the Veteran had abnormal peripheral pulses in his right lower extremity. The October 2015 VA examination did not address peripheral pulses. Neither the September 2012 nor the October 2015 VA examination performed an ankle/brachial index. The Veteran’s right lower extremity deep vein thrombosis is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7114. 38 C.F.R. § 4.104, Diagnostic Code 7114 (2018). For a compensable rating, the Veteran must, at a minimum, demonstrate claudication on walking more than 100 yards and either diminished peripheral pulses or ankle/brachial index of 0.9 or less. Id. The Board notes that the May 2012 VA examination reports that the Veteran did not require any assistive devices, but the October 2015 VA examination noted that the Veteran required compression garments. The Board, however, is unable to substitute its own knowledge and judgment for such as an expert and, as such, may not make a judgment on rating without all of the required testing and evidence. See Colvin, 1 Vet. App. at 175. As neither VA examination contained evidence of abnormal peripheral pulses and no ankle/brachial index was obtained, the examinations do not provide sufficient information to properly adjudicate this claim. Barr, 21 Vet. App. at 311. In light of the above, the Board finds that it is necessary to schedule the Veteran for a new VA examination to assess the severity of his right lower extremity deep vein thrombosis. 3. Entitlement to an initial disability rating in excess of 10 percent prior to October 6, 2015, and in excess of 50 percent thereafter, for posttraumatic stress disorder (PTSD) is remanded. The Board next turns its attention to the Veteran’s claim for an increased disability rating for his service connected PTSD. The duty to assist the Veteran includes the duty to make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(1) (2018). In VA treatment records, the Veteran reported in 2013 that he had seen a private psychologist in Wilmington due to debilitating depression. Upon review of the file, the Veteran’s treatment records from this private provider have not been associated with the file. The Board finds that this evidence is necessary for proper adjudication of this claim. As such, on remand, the AOJ is instructed to make reasonable efforts to identify this, and any other, provider and make reasonable efforts to obtain the applicable records. However, the Board notes that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is ultimately the Veteran’s responsibility to provide information and evidence that is in support of his claim to VA. The Board also notes that the Veteran last received a VA examination to determine the severity of his PTSD in October 2015. The Board, therefore, finds it appropriate to schedule the Veteran for a VA examination to determine the current severity of his PTSD. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board finds that the claims for an increased disability rating for the Veteran's left and right lower extremity thrombi, an increased disability rating for the Veteran’s PTSD, and the claim of entitlement to TDIU are inextricably intertwined. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). The claim of entitlement an increased disability rating for the Veteran’s left and right lower extremity thrombi and an increased disability rating for the Veteran’s PTSD are "intertwined" with the claim for TDIU because a decision on the disability rating for his left and right lower extremity thrombi and the disability rating for the Veteran’s PTSD will impact the claim for TDIU. See Harris, 1 Vet. App. at 183. Consequently, the claim of entitlement to an increased disability rating for his an increased disability rating for the Veteran’s left and right lower extremity thrombi an increased disability rating for the Veteran’s PTSD and the claim of entitlement to TDIU must be remanded for contemporaneous adjudication. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and outstanding private treatment records, with all necessary assistance from the Veteran. Special attention should be paid to private treatment providers identified by the Veteran in communication with the VA. The Board reminds the Veteran that the duty to assist is not a one-way street and the Veteran is responsible to identify all outstanding private providers and their addresses. Wood v. Derwinski, 1 Vet. App. at 193. 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. Schedule the Veteran for an examination to determine the current severity of his bilateral lower extremity deep venous thrombi. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) The examiner should specifically address the current severity of the Veteran’s deep venous thrombi, to include results of all appropriate and necessary testing. (b.) If possible, for the time period of August 24, 2011, to October 6, 2015, the examiner should opine as to the severity of the Veteran’s deep venous thrombi based upon the evidence of record. This severity should be addressed separately, if necessary. (c.) The Board is not capable to opine as to the specific inferences of findings requiring interpretation of a medical expert. See Colvin, 1 Vet. App. at 175. As such, the Board requests that the examiner, if possible, provide an opinion as to the relevance, and implication regarding the severity of the Veteran’s deep venous thrombi, that the September 2012 VA examination revealed persistent edema of bilateral lower extremities. (d.) The Board also requests that, if possible, the examiner provide an opinion as to the relevance, and specific implication regarding the severity of the Veteran’s deep venous thrombi, that the October 2015 VA examination revealed that the Veteran was required to utilize compression garments. As the Board is unable to infer such information, the examiner is requested to provide a conclusion regarding the Veteran’s lower extremity venous function and the use of compression garments therefor. Id. It should be noted that the appellant is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the appellant’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for an examination to determine the current severity of his PTSD. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. It should be noted that the appellant is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the appellant’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. 4. Readjudicate all issues on appeal, to include TDIU. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel