Citation Nr: 18154047 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-42 813 DATE: November 29, 2018 REMANDED Entitlement to service connection sleep disorder is remanded. Entitlement to service connection for acquired psychiatric disorder is remanded. Entitlement to a rating in excess of 10 percent for left epicondylitis with limitation of flexion is remanded. Entitlement to a compensable rating for left epicondylitis with limitation of extension is remanded. Entitlement to a rating in excess of 10 percent for low back degenerative arthritis and Intervertebral Disc Syndrome (IVDS) is remanded. Entitlement to a rating in excess of 10 percent for right inguinal hernia is remanded. Entitlement to a rating in excess of 10 percent for solar keratosis is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity (LLE) radiculopathy is remanded. Entitlement to a compensable rating for fibromyalgia prior to April 4, 2016, and a rating in excess of 20 percent thereafter, is remanded. Entitlement to a compensable rating for headaches with migraine variants is remanded. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for left epicondylitis with limitation of flexion is remanded. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for left epicondylitis with limitation of extension is remanded. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for low back degenerative arthritis and IVDS is remanded. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for right inguinal hernia is remanded. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for solar keratosis is remanded. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for LLE radiculopathy is remanded. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for fibromyalgia is remanded. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for headaches with migraine variants is remanded. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for tinnitus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. INTRODUCTION The Veteran served active duty in the United States Army from April 1974 to February 1977, June 2006 to September 2006, and October 2008 to October 2009. In response to an August 2016 statement of the case (SOC), the Veteran submit a timely VA Form 9 appealing numerous issues, not including entitlement to an increased rating for tinnitus. Subsequently, the RO certified the issue of entitlement to an increased rating for tinnitus to the Board. As the Veteran did not submit a timely substantive appeal for entitlement to an increased rating for tinnitus, the issue is not before the Board. With regard to the acquired psychiatric disorder claim, the Veteran’s claim was developed and adjudicated as a service connection claim for depression. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. In light of Clemons, the issue has been recharacterized to encompass all psychiatric diagnoses. With regard to the TDIU claim, the Court has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran’s attorney submitted an October 2017 brief arguing entitlement to TDIU and employability opinions. This evidence reasonably raises the issue of TDIU. REASONS FOR REMAND The claims file indicates there are outstanding and relevant Social Security Administration (SSA) disability records. See October 2017 attorney brief and attachments. A remand is required to allow VA to request these records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). 1. Entitlement to service connection sleep disorder 2. Entitlement to service connection for acquired psychiatric disorder 3. Entitlement to a rating in excess of 10 percent for left epicondylitis with limitation of flexion 4. Entitlement to a compensable rating for left epicondylitis with limitation of extension 5. Entitlement to a rating in excess of 10 percent for low back degenerative arthritis and IVDS 6. Entitlement to a rating in excess of 10 percent for right inguinal hernia 7. Entitlement to a rating in excess of 10 percent for solar keratosis 8. Entitlement to a rating in excess of 10 percent for LLE radiculopathy 9. Entitlement to a compensable rating for fibromyalgia prior to April 4, 2016, and a rating in excess of 20 percent thereafter 10. Entitlement to a compensable rating for headaches with migraine variants 11. Entitlement to TDIU Regarding the sleep disorder claim, a March 2017 VA treatment visit noted a sleep study referral for possible sleep apnea. An April 2017 VA treatment visit noted a consultation at Johnson City Medical Center. VA should attempt to retrieve these records. Regarding the acquired psychiatric disorder claim, a November 2013 VA examination diagnosed alcohol dependence in full remission with no other psychological diagnoses. Subsequent to that examination, VA treatment records have assessed anxiety and the Veteran’s attorney submitted a medical article, “Mood and Anxiety Disorders in Chronic Headache.” See April 2017 VA treatment visit and October 2017 attorney brief. A new examination is warranted to determine the nature and etiology of any acquired psychiatric disorder. Regarding the claims for an increased rating for left epicondylitis and an increased rating for low back condition, a February 2016 VA examiner stated he could not opine on further loss of range of motion due to pain on use, repeated use over time, or flare-ups without resorting to mere speculation as it would require an examination of the Veteran during a flare-up. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation, the examiner must “elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, suffered during flares and then 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 could not do so.” There is no indication the examiner made any attempt to ascertain adequate information from relevant sources in order to provide the requested opinion. 12. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for left epicondylitis with limitation of flexion 13. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for left epicondylitis with limitation of extension 14. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for low back degenerative arthritis and IVDS 15. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for right inguinal hernia 16. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for solar keratosis 17. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for LLE radiculopathy 18. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for fibromyalgia 19. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for headaches with migraine variants 20. Entitlement to an effective date prior to March 16, 2012 for the grant of service connection for tinnitus In response to a January 2014 rating decision, the Veteran submit a timely notice of disagreement (NOD) indicating he wanted to appeal the effective date of the grant of service connection for the issues of left epicondylitis with limitation of flexion, left epicondylitis with limitation of extension, low back degenerative arthritis with IVDS, tinnitus, right inguinal hernia, solar keratosis, fibromyalgia, and migraine headaches. A SOC has not been issued in response to the Veteran’s disagreement with these issues. As the November 2014 NOD placed the issues in appellate status, these matters must be remanded for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding the TDIU claim and request that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Obtain the Veteran’s disability benefits records from the Social Security Administration. Document all requests for information and responses in the claims file. 3. Obtain the Veteran’s VA treatment records from April 2017 to the present. 4. Ask the Veteran to complete a VA Form 21-4142 for Johnson City Medical Center (JCMC). Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 5. After the above records development is completed, schedule the Veteran for a VA psychiatric examination to address the nature and etiology of any acquired psychiatric disorders. The examiner should: (a.) Identify any acquired psychiatric disorders found during the appeal period, to include in the claims file or on examination. (b.) For any psychiatric disorder identified, is it at least as likely as not (50 percent or greater probability) that the psychiatric disorder manifested in service or is related to service? (c.) If not found to have manifested in service or be related to service, is it at least as likely as not the psychiatric disorder is (i) proximately due to (ii) or aggravated beyond its natural progression by his service-connected headaches with migraine variants? The examiner should discuss the medical literature submitted by the Veteran’s attorney in October 2017, “Mood and Anxiety Disorders in Chronic Headache.” If an opinion 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). 6. Schedule the Veteran for an examination to assess the current severity of his service-connected left epicondylitis and service-connected back condition. Conduct range of motion testing. Identify any objective evidence of pain and the degree at which pain begins. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups or repeated use over time must also be noted. Additional functional impairment must be expressed in terms of the degree of additional range of motion loss. If testing is not performed during a flare-up or repeated use over time, the examiner must attempt to elicit information from other relevant sources, to include the Veteran’s lay statements. If it is not possible to provide an opinion without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Issue an appropriate SOC addressing the Veteran’s claims for entitlement to an earlier effective date for the grant of service connection for left epicondylitis with limitation of flexion, left epicondylitis with limitation of extension, low back degenerative arthritis with IVDS, tinnitus, right inguinal hernia, solar keratosis, fibromyalgia, and migraine headaches. See November 2014 NOD. The Veteran and his representative should be advised of the requirements to timely perfect an appeal. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel