Citation Nr: 18152451 Decision Date: 11/23/18 Archive Date: 11/21/18 DOCKET NO. 15-36 155 DATE: November 23, 2018 REMANDED Entitlement to an increased disability rating in excess of 30 percent for migraine headaches is remanded. Entitlement to an increased disability rating in excess of 20 percent for degenerative disc disease, lumbar spine (herein lumbar spine disability), is remanded. Entitlement to an increased disability rating in excess of 10 percent for medial meniscus tear, right knee (herein right knee disability), is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for memory loss is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes mellitus type 2 (herein diabetes) is remanded. Entitlement to service connection for coronary artery disease (also claimed as heart attack) is remanded. Entitlement to service connection for prostate cancer is remanded. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a left knee disability is remanded. Entitlement to an effective date earlier than February 12, 2014 for the grant of entitlement to service connection for migraine headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1971 to October 1984. Upon review, the Board finds that remand is required for all issues on appeal to attempt to obtain potentially relevant outstanding medical records. Additional action is also necessary for certain specific issues, as detailed further below. Outstanding Records Various potentially relevant medical records are outstanding. First, the Veteran’s representative submitted an August 2018 Brief. The Brief listed as new evidence two buddy statements and two private (non-VA) medical opinions, but such evidence is not of record. The Veteran’s representative described the content of these records. One medical opinion, from Dr. H.H.G., was quoting as stating that the Veteran “suffers from depressive disorder which more likely than not began in military service continues uninterrupted to the present and is aggravated by his migraines, [lumbar spine disability], and right knee [disability].” The second medical opinion, from Dr. H.S., was described as stating that “the Veteran’s depression aided in the development of and permanently aggravates his obstructive sleep apnea.” The opinion from Dr. H.S. also reportedly provided information regarding the severity of the Veteran’s migraine headaches. As noted, the new evidence listed in the August 2018 Brief is not of record. Of record, dated as received by VA the same date as a copy of the August 2018 Brief, is a two-page document, with the first page being a photocopy of a compact disc (CD) with the Veteran’s name and claims file number written on the CD and the second page being a photocopy of an envelope from the Veteran’s representative addressed to VA. Presumably the submitted CD contained the new evidence referenced in the August 2018 Brief and it is unclear as to why the contents of the CD (assuming they were on the CD) were not associated with the Veteran’s electronic claims file. As such, on remand, VA must attempt to associate with the Veteran’s claims file any documents contained on the CD submitted in August 2018. The Veteran and his representative are also advised that they may resubmit the referenced new evidence. Second, service treatment records (STRs) included two November 1983 STRs and an April 1984 STR stamped “additional records in mental health clinic.” The Board notes that in-service mental health records are typically stored separately from other STRs. As such, on remand, VA must attempt to obtain any available STRs related to mental health. Third, a June 2017 VA treatment record stated that the Veteran “has been on Social Security Disability since 2015.” Also, an October 1992 VA Vocational Rehabilitation record stated that the Veteran “has elected to apply for Social Security Disability.” As such, on remand, VA must attempt to obtain any Social Security Administration (SSA) disability records available. Fourth, a November 2015 statement of the case (SOC) (addressing seven of the issues on appeal) listed under the evidence heading “VAMC (Veterans Affairs Medical Center) treatment records, Birmingham, from December 18, 1991, through November 5, 2015; electronic review conducted on November 10, 2015.” A February 2018 supplemental statement of the case (SSOC) (addressing eleven of the issues on appeal) listed under the evidence heading VA treatment records from December 28, 2015 to February 7, 2018. Upon review, the current electronic VA treatment records of record do not appear to be complete and do not include all of the records listed as evidence by the Agency of Original Jurisdiction (AOJ). In this regard, electronic records appear complete from March 1995 to February 2010, December 2010 to May 2014 and December 2015 to February 2018. As such, on remand, outstanding VA treatment records must be obtained, which includes records from February 2010 to December 2010, May 2014 to December 2015 and from February 2018. Fifth, various medical records referenced the Veteran as receiving private medical care. In this regard, a May 2013 Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) referenced the Veteran as being followed by an orthopedic Dr. A. and a primary care physician Dr. L., a December 2017 VA treatment record referenced the Veteran seeing a pain management specialist, and a February 2018 VA treatment record referenced a primary medical Dr. R. and a neurosurgeon Dr. S. The current private medical records of record are limited primarily to records received in May 2013 related to cardiology treatment. As such, on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records or complete a release for such providers; if any releases are returned, the AOJ must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (stating “[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records”). Increased Rating – Migraine Headaches While on remand, the Veteran must be afforded a new VA examination to determine the current severity of his migraine headaches. The Veteran’s only VA examination during the appeal period for this disability was in April 2014. The VA Headaches DBQ noted that the duration of typical head pain was less than one day and that the Veteran experienced characteristic prostrating attacks of migraine/non-migraine headache pain on average once every month. As discussed above, an August 2018 Brief referenced new evidence that is not currently of record, but the Brief did describe an opinion from Dr. H.S. that reportedly provided information regarding the severity of the Veteran’s migraine headaches. The Brief stated that Dr. H.S. “noted the Veteran’s headaches have increased in severity as well as frequency. [The Veteran] experiences prostrating attacks…that occur approximately 3-4 times per month and last 1-2 days in duration.” As such, in light of the apparent increase in severity of the Veteran’s disability since the April 2014 VA examination, a new VA examination is warranted. Increased Rating – Lumbar Spine Disability and Right Knee Disability While on remand, the Veteran must be afforded a new VA examination for his lumbar spine disability and right knee disability. The Veteran’s only VA examination during the appeal period for these disabilities was in May 2013. The United States Court of Appeals for Veterans Claims (Court) has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The May 2013 VA examination did not comply with Correia and as such, remand is required so that the Veteran may be afforded new VA examinations that contains adequate information pursuant to Correia. In addition, both the May 2013 Back and Knee and Lower Leg Conditions DBQs noted that Veteran reported flare-ups and noted the Veteran’s description of such. The Court stated in Sharp v. Shulkin, 29 Vet. App. 26 (2017), in regard to a VA examination report’s discussion of flare-ups, that “[b]ecause the VA examiner did not…estimate the [V]eteran’s functional loss due to flares based on all the evidence of record—including the [V]eteran’s lay information—or explain why she could not do so, the…examination was inadequate.” The May 2013 examiner did not estimate the Veteran’s functional loss due to flare-ups or explain why such could not be done. As such, while on remand, the VA examination reports must also contain adequate information pursuant to Sharp. Also, with respect to the lumbar spine disability, an October 2017 VA Form 27-0820 (Report of General Information) documented a phone call from the Veteran in which he stated “[b]ack problems causing additional disability.” The VA examination on remand will determine the current severity of the Veteran’s disability, which may have increased in severity since the last VA examination. Service Connection – Hypertension While on remand, the Veteran must be afforded a VA examination (which has not previously been provided) for his hypertension claim. A note to Diagnostic Code 7101 (Hypertensive vascular disease (hypertension and isolated systolic hypertension)) states that “[h]ypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days” and that “[f]or purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.” STRs included the following blood pressure readings: (1) a February 1984 STR noting 126/90, (2) a May 1984 STR noting 140/90, and (3) a July 1984 STR noting 130/90. As such, the Veteran’s STRs contained readings taken on three different days (though it is unclear if such readings were taken on two or more times on those days) that indicated diastolic blood pressure of 90mm or greater. It does not appear, however, that the Veteran was formally diagnosed with hypertension during his active service. In any event, as the Veteran’s STRs contained elevated blood pressure readings on three separate days, the Board finds that a VA examination and opinion is warranted, as outlined further in the remand directives below. Service Connection – Diabetes While on remand, the Veteran must be afforded a VA examination (which has not previously been provided) for his diabetes claim. A March 29, 1978 podiatry clinic STR noted a complaint of the Veteran’s big toes being numb and noted an assessment that appears to state (the handwriting is difficult to read) “Raynaud’s Syndrome v[ersu]s Diabetes.” March 30, 1978 lab results noted a glucose reading of 96. Subsequent December 1978 lab results noted a fasting blood sugar glucose reading of 131. An accompanying document listed normal values for glucose as 65-110 mg/dl. The Board notes that the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK), which is part of the National Institutes of Health (NIH), states that a fasting plasma glucose of 126 mg/dl or above warrants a diagnosis of diabetes. See https://www.niddk.nih.gov/health-information/diabetes/overview/tests-diagnosis. The NIDDK also states that “[u]sually, the same test method needs to be repeated on a second day to diagnose diabetes.” See id. It does not appear that a second elevated glucose reading was documented in the STRs or that the Veteran was formally diagnosed with diabetes during his active service. In any event, as the Veteran’s STRs contained an elevated glucose reading, the Board finds that a VA examination and opinion is warranted, as outlined further in the remand directives below. Entitlement to TDIU A claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). An October 2015 Mental Disorders DBQ, completed by private Dr. H.H.G., referenced that the Veteran last worked in 2014. An October 2015 private medical opinion from Dr. H.H.G. stated that “[i]t is the belief of this examiner, based on interview and the C-File that [the Veteran’s] migraine headaches, [lumbar spine disability] and right knee [disability] are more likely than not aggravating his depressive disorder due to another medical condition and preventing him from maintaining substantially gainful employment.” The Board finds that this statement sufficiently raises the issue of entitlement to a TDIU and, as such, this issue is also on appeal. No notice regarding the TDIU claim has been provided to the Veteran and appropriate development has not been conducted. Therefore, the claim must be remanded so that proper notice can be provided and any necessary development undertaken. Earlier Effective Date – Service Connection Migraine Headaches A June 2014 rating decision granted entitlement to service connection for migraine headaches and assigned a 30 percent disability rating, effective February 12, 2014. The Veteran submitted an August 2014 VA Form 21-0958 (Notice of Disagreement (NOD)). On this form, he noted an issue of disagreement of migraine headaches and noted areas of disagreement of “Effective Date of Award” and “Evaluation of Disability.” This was accepted as a NOD as to the assigned disability rating, but the NOD also expressed disagreement with the effective date of the award of entitlement to service connection. When a NOD has been filed with regard to an issue and a SOC has not been issued, the appropriate Board action is to remand the issue to the AOJ for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). As such, remand is required for the issuance of a SOC regarding the issue of entitlement to an earlier effective date for entitlement to service connection for migraine headaches. The matters are REMANDED for the following action: 1. Attempt to obtain the following records: (a.) Any documents contained on the CD submitted to VA in August 2018. If the CD cannot be located or it contains no records, such should be documented. The Veteran and his representative are also advised that they may resubmit the new evidence referenced in the August 2018 Brief. (b.) Any available STRs related to mental health (see the body of the remand for further discussion). (c.) Any SSA disability records available. (d.) Outstanding VA treatment records. This includes: i. From February 2010 to December 2010. ii. From May 2014 to December 2015. iii. From February 2018. (e.) Contact the Veteran and request that he either provides any outstanding relevant private treatment records or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. 2. Afford the Veteran an appropriate VA examination to determine the current severity of his migraine headaches. 3. Afford the Veteran an appropriate VA examination to determine the current severity of his right knee disability and lumbar spine disability. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. Further, the examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran. The examiner must either estimate the Veteran’s functional loss due to flares based on all the evidence of record, including the Veteran’s lay information, or explain why he or she cannot do so. The examiner’s determination in this regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). 4. Afford the Veteran a VA examination with respect to his hypertension claim. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that hypertension had its onset during active service or is caused or aggravated by any in-service disease, event, or injury. While review of the entire claims folder is required, the examiner’s attention is invited to February 1984, May 1984 and July 1984 STRs, which noted elevated blood pressure readings (specifically diastolic blood pressure of 90mm or greater). For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. 5. Afford the Veteran a VA examination with respect to his diabetes claim. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that diabetes had its onset during active service or is caused or aggravated by any in-service disease, event, or injury. While review of the entire claims folder is required, the examiner’s attention is invited to December 1978 lab results, which noted a fasting blood sugar glucose reading of 131. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. 6. With respect to issue of entitlement to a TDIU, provide the Veteran with the required information under VA’s duty to notify and assist. Specifically, the Veteran must be notified of how to substantiate a claim for entitlement to a TDIU. Additionally, provide the Veteran with VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and request that he supply the requisite information. After such actions, conduct any further development of the Veteran’s TDIU claim deemed necessary. 7. Issue a SOC regarding the issue of entitlement to an earlier effective date for entitlement to service connection for migraine headaches. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Counsel