Citation Nr: 18152604 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-08 968 DATE: November 27, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to an initial rating in excess of 10 percent for right knee arthritis, status post strain (right knee disability), is remanded. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine (lumbar spine disability) is remanded. Entitlement to a rating in excess of 30 percent for bilateral pes planus and degenerative joint disease with calluses (bilateral foot disability) is remanded. Entitlement to a compensable initial rating for healed surgical scars of the right lower extremity is remanded. Entitlement to an effective date prior to April 8, 2015, for the grant of service connection for a right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from December 1977 to December 1981. The Veteran died in November 2017, and the Appellant is the Veteran’s surviving spouse who has been substituted as claimant in the Veteran’s appeal. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially filed a claim for service connection for posttraumatic stress disorder (PTSD). Nevertheless, as the record notes other psychiatric diagnoses, including major depressive disorder, unspecified depressive disorder, and schizophrenia spectrum disorder, the Board has expanded the claim to include all acquired psychiatric disabilities, and the issue has been recharacterized as stated on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes there is an additional issue on appeal that has been perfected, but is not yet ripe for Board review. When an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a) (2018). As the required notifications have not been sent in regard to the issue of entitlement to service connection for the cause of the Veteran’s death. This delay is needed to ensure that the Appellant is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). This issue will be the subject of a later Board decision as appropriate. 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to service connection for hepatitis C is remanded. 3. Entitlement to service connection for erectile dysfunction is remanded. 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. 5. Entitlement to a rating in excess of 40 percent for a lumbar spine disability is remanded. 6. Entitlement to a rating in excess of 30 percent for a bilateral foot disability is remanded. 7. Entitlement to a compensable initial rating for healed surgical scars of the right lower extremity is remanded. 8. Entitlement to a TDIU is remanded. The evidence indicates there may be outstanding relevant VA treatment records. A September 8, 2017 VA treatment record indicates that the Veteran was scheduled for a primary care appointment on September 12, 2017. Documentation of that appointment is not of record. Moreover, VA treatment records indicate that the Veteran received ongoing VA treatment prior to his death. VA treatment records through the Veteran’s date of death have not been associated with the claims file. On remand, any outstanding VA treatment records must be obtained. A June 2016 disability benefits questionnaire from Dr. Henderson-Galligan reflects that the Veteran reported receiving Social Security Administration (SSA) disability benefits due to mental and physical disabilities. To date, the Veteran’s SSA records have not been requested or otherwise associated with the claims file. Accordingly, such records should be requested on remand. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Regarding the claim for hepatitis C, VA treatment records indicate that the Veteran was diagnosed with hepatitis C. Additionally, a June 2005 VA treatment record indicates that the Veteran endorsed high risk sexual behavior during active service. Accordingly, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s hepatitis was related to active service. Regarding the claim for an acquired psychiatric disorder, the record contains a March 19, 2013 formal finding that there was insufficient information to verify the Veteran’s asserted stressor. Subsequently, in a February 21, 2013 correspondence, the Veteran provided additional details regarding his asserted in-service stressors. Accordingly, a remand is required to allow VA to attempt to corroborate the Veteran’s reported stressor. In a June 2016 opinion Dr. Henderson-Galligan opined that the Veteran’s major depressive disorder more likely than not began during active service. She also opined that the Veteran’s major depressive disorder was aggravated by his service-connected lumbar spine and bilateral foot disabilities. While Dr. Henderson-Galligan cited treatise evidence in support of her opinion, she did not provide any rationale specific to this Veteran or acknowledge the fact that his service treatment records were silent for any evidence of psychiatric symptoms. Accordingly, the positive opinion is inadequate for adjudicating the claim and a VA opinion is warranted. Additionally, as Dr. Henderson-Galligan’s opinion reasonably raises the issue of secondary service connection, the Appellant should be provided a notice letter advising her of how to substantiate a claim for service connection on a secondary basis. Regarding the TDIU claim, while the Veteran submitted VA Form 21-8940 in February 2013 indicating that he had last worked in February 2007 as a warehouse worker, he did not fully identify his prior employer or detail his prior education or training. To date, the record does not contain complete information regarding the Veteran’s prior employment or education. As the claim is being remanded for other development, on remand the Appellant should be afforded an opportunity to submit a fully completed VA Form 21-8940. 9. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. 10. Entitlement to an effective date prior to April 8, 2015, for the grant of service connection for a right knee disability is remanded. The Veteran filed a timely notice of disagreement (NOD) at the RO in October 2017 concerning the issues of entitlement to an increased initial rating for a right knee disability and entitlement to an effective date prior to April 8, 2015 for the grant of service connection for a right knee disability. To date, the AOJ has not provided the Appellant with a statement of the case. Additionally, these appeals are not contained in the VACOLS appeals tracking system as active appeals at the RO. Accordingly, these issues must be remanded for the RO to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). These issues should only be returned to the Board if it is timely perfected. The matters are REMANDED for the following actions: 1. Send the Appellant a VCAA notice letter advising her of the information needed to substantiate a claim for service connection for an acquired psychiatric disorder on a secondary basis. 2. Ask the Appellant to provide the names and addresses of all medical care providers who treated the Veteran for his claimed disabilities prior to his death. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records dated from September 18, 2017 through November 14, 2017. If any requested records are unavailable, the Appellant should be notified of such. 3. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. 4. Ask the Appellant to fully complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to include detailing all education and training as well as all full-time or part-time employment. 5. Attempt to corroborate the Veteran’s in-service stressor, including witnessing the aftermath of another service member’s suicide while attending boot camp. If more details are needed, contact the Appellant to request the information. 6. After the above is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's hepatitis C. Following review of the claims file, the clinician should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hepatitis C had its onset during service or is otherwise related to service. A complete rationale should be provided for all opinions and conclusions expressed. 7. Forward the claims file to a VA clinician to obtain an addendum opinion regarding the claim for an acquired psychiatric disorder. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disorder present during the appeal period (other than PTSD and any personality disorder) had its onset during service or is otherwise related to service. (b.) Whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disorder present during the appeal period was caused by the Veteran’s service-connected lumbar spine or bilateral foot disabilities? (c.) If not caused by the Veteran’s service-connected lumbar spine or bilateral foot disabilities, is it at least as likely as not that any acquired psychiatric disorder present during the appeal period was worsened beyond natural progression (aggravated) by his service-connected lumbar spine or bilateral foot disabilities? If the clinician finds that any acquired psychiatric disorder was aggravated by the Veteran’s service-connected lumbar spine or bilateral foot disabilities, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the acquired psychiatric disorder. In so opining, the examiner should address diagnoses of record in his VA treatment records, including unspecified schizophrenia spectrum disorder, unspecified depressive disorder, and major depressive disorder. The examiner should also address the June 2016 opinion and treatise evidence from Dr. Henderson-Galligan. A complete rationale should be provided for all opinions and conclusions expressed. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson