Citation Nr: 18156489
Decision Date: 12/10/18	Archive Date: 12/10/18

DOCKET NO. 14-23 781
DATE:	December 10, 2018
REMANDED
1. Entitlement to service connection for diabetic retinopathy is remanded.
2. Entitlement to service connection for diabetic nephrolithiasis is remanded.
3. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity is remanded.
4. Entitlement to an initial compensable rating for erectile dysfunction associated with residuals of prostate adenocarcinoma is remanded.
5. Entitlement to an increased rating for residuals of prostate adenocarcinoma, evaluated as 20 percent disabling is remanded.
6. Entitlement to an initial rating in excess of 10 percent prior to March 13, 2012 and in excess of 20 percent thereafter for diabetes mellitus is remanded. 
7. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy for the right upper extremity is remanded.
8.  Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy for the left upper extremity is remanded.
9. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded.
10. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.
11. Entitlement to an initial rating in excess of 50 percent for major depressive disorder associated with residuals of prostate adenocarcinoma is remanded.
12. Entitlement to service connection for bilateral hearing loss disability is remanded.
13. Entitlement to service connection for hypertension (high blood pressure) is remanded.
14. Entitlement to Special Monthly Compensation (SMC) at the Aid and Attendance or Housebound rate is remanded.
15. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 
REASONS FOR REMAND
The Veteran had active military service from February 1966 to June 1968.  
These matters come before the Board of Veterans’ Appeals (Board) from April 2011, May 2012, and June 2012 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in San Juan (Guaynabo), Puerto, Rico.    Subsequently, the RO, in a May 2014 rating decision, granted increased ratings as follows: 50 percent (from 30 percent) for major depressive disorder effective from July 6, 2011, and 20 percent (from 10 percent) for the Veteran’s diabetes effective from March 13, 2012.  The RO also granted a separate 20 percent rating for the left upper extremity effective from June 29, 2010, a separate 20 percent for the right upper extremity effective from June 29, 2010.  
The Board notes that there are some documents in the claims file which are not in English (e.g. September 2011 Sistema San Juan Capestrano records); thus, the RO ensure that all documents associated with the claims file have been translated into English.  
In addition, the Board notes that June 20, 2014 correspondence from the Veteran’s attorney indicates that she is attaching a statement by the Veteran’s wife; however, no such statement is associated with the claims file.  Thus, the RO should ask the Veteran to resubmit this statement. 
1. Entitlement to service connection for diabetic retinopathy is remanded.
2. Entitlement to service connection for diabetic nephrolithiasis is remanded.
3. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity is remanded.
The Veteran is in receipt of service connection for diabetes; however, he has not been diagnosed with diabetic-related of retinopathy, nephrolithiasis, or peripheral neuropathy of the right lower extremity.  
In October 2018 correspondence, the Veteran’s attorney indicated that VA clinical records since 2014 may establish current diagnoses, and requested that VA associate them with the claims file.  
Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal.  A remand is required to allow VA to obtain them.
4. Entitlement to an initial compensable rating for erectile dysfunction associated with residuals of prostate adenocarcinoma is remanded.
5. Entitlement to an increased rating for residuals of prostate adenocarcinoma, evaluated as 20 percent disabling is remanded
6. Entitlement to an initial rating in excess of 10 percent prior to March 13, 2012 and in excess of 20 percent thereafter for diabetes mellitus. 
7.  Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy for the right upper extremity.
8.  Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy for the left upper extremity.
9. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity.
The Veteran’s attorney has indicated that remand is necessary to obtain records for the Veteran’s service-connected disabilities.  The most recent VA clinical records are from 2014.
The most recent VA examination for the prostate is from 2013.  The most recent examination for diabetes is from 2012.  The most recent examination for peripheral neuropathy is from 2012.  Based on the Veteran’s contentions, the Board finds that the Veteran should be scheduled for examinations to determine the current severity of his disabilities. 
10. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.
11. Entitlement to an initial rating in excess of 50 percent for major depressive disorder associated with residuals of prostate adenocarcinoma.
The Veteran is in receipt of service connection for major depression related to his prostate cancer.  He contends that he has PTSD due to service in Vietnam.  The claims file includes a March 2012 VA examination report which reflects that the Veteran’s reported symptoms do not meet the criteria for PTSD under DSM-IV.  
In 2015, VA adopted a rule, which updates 38 C.F.R. Parts 3 and 4 to reflect VA’s use of the Diagnostic and Statistical Manual of Mental Disorders (DSM) 5th Edition (DSM-5) with regard to all applications for benefits relating to mental disorders. 80 Fed. Reg. 14,308 (March 19, 2015). The rule applies to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014.  Changes brought by the DSM-5 include modifications to diagnostic criteria.  
A review of the claims file reflects that the Veteran’s claim was pending before the RO on August 4, 2014 and was not certified to the Board until October 2015.  Therefore, a remand is required to ensure that the Veteran receives an adequate VA examination.  
Moreover, the examiner should make findings with regard to the current severity of the Veteran’s service-connected major depressive disorder. (The most recent examination (March 2012) reflects the examiner’s opinion that the Veteran’s symptoms are best summarized as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; however, the Veteran’s attorney contends that the Veteran’s major depression disorder causes total occupational and social impairment.  In addition, VA clinical records reflect that the Veteran was hospitalized in 2014 for psychiatric care; thus, there is an indication of a worsening of his symptoms since the 2012 examination. 
The Veteran’s attorney also contends that there outstanding VA records from the Veteran’s inpatient psychiatric hospitalization in 1981 and 1982; the Board finds that these records would not support a current diagnosis of PTSD. Nevertheless, as the claim is being remanded anyway, the Board finds that VA should attempt to obtain any such records. (The claims file includes a VA Form 10-1000 Hospital Summary for the Washington DC VAMC reflecting admission in November 1981 and discharge in January 1981; however, this appears to be a typographical error and discharge was actually in January 1982 after 74 days of hospitalization.)
12. Entitlement to service connection for bilateral hearing loss disability is remanded.
The Veteran’s claim was denied because there was not competent credible evidence of a hearing loss disability for VA purposes.  VA clinical records reflect that the Veteran did not have hearing loss (e.g. see July 2010, October 2010, March 2011, August 2011, and March 2012 VA clinical records which reflect that he was negative for hearing loss).
The Veteran entered service in 1966.  Audiograms prior to January 1, 1967, which do not specify if American Standards Association (ASA) units or International standards Organization-American National Standards Institute (ISO-ANSI) units were used, will be presumed to have used the ASA standard.  ASA standard findings are converted to the ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: 15 decibels to the 500Hz level, 10 decibels to the 1000, 2000, and 3000 Hz levels, and 5 decibels to the 4000 level. The Veteran’s October 1965 audiogram for pre-induction purposes does not reflect which standard was used; thus, it is converted according to Board policy.  Upon converting to the ISO-ANSI standard, it reflects abnormal hearing when converted to current standards. The Board notes that the Veteran was assigned a “1” on the PULHES Physical Profile for “H” which is indicative that audiometric average level of each ear was not more than 25 dB at 500, 1000, 200 Hz, with no individual level greater than 30 dB, and not over 45 dB at 4000 HZ. (See Army Regulation (AR) 40-501.)
More than five years after separation from service, an April 1974 Report of Medical Examination for enlistment purposes in the Reserves reflects bilateral hearing loss disability in the audiogram results; the Veteran was also assigned a “2” for hearing on the PULHES which is indicative of not more than 30 dB average at the 500, 1000, and 2000 Hz with no individual level greater than 35 at those frequencies, and not more than 55 dB at 4000, or audiometric level 30 dB at 500 Hz, 25 dB at 1000 and 2000, and 35 dB at 4000 Hz in the better ear. (See Army Regulation (AR) 40-501.)
Thus, any clinical opinion should consider the above audiology findings. 

13. Entitlement to service connection for hypertension (high blood pressure) is remanded.
The Veteran’s attorney contends that outstanding VA records would provide “further detail regarding the veteran’s history of treatment with medication known to produce or contribute to hypertension.”  She contends that Nortriptyline is known to cause hypertension, and has submitted general information on such.
The Board finds that a clinical opinion as to whether it is as likely as not this particular Veteran has hypertension which is causally related to, or aggravated beyond its natural progression, by a service-connected disability, to include medication for such a disability, may be useful to the Board. VA clinical records may provide useful information on this, and should be obtained.
14. Entitlement to SMC at the Aid and Attendance or Housebound rate is remanded
15. Entitlement to a TDIU is remanded.
The Board finds that outstanding VA clinical records, if any, and VA examinations which will be scheduled pursuant to this remand, may provide pertinent evidence with regard to the Veteran’s claims for SMC and a TDIU.  Thus, these issues are also remanded.
The matter is REMANDED for the following action:
1. Associate with the claims file all VA inpatient psychiatric treatment records from the Washington DC VAMC from November 1, 1981 through January 31, 1982.
2. Associate with the claims file all VA and private clinical records from April 2014 to present.
3. Review the claims file and translate all Spanish language documents into English (to include September 2011 Sistema San Juan Capestrano records).
4. Request the Veteran to re-submit a copy of the statement of his wife which is referenced in June 2014 correspondence from the Veteran’s attorney but does not appear to be associated with the claims file. 
5. Schedule the Veteran for appropriate VA examinations to determine the current severity of his a.) diabetes; b.) peripheral neuropathies of the upper extremities and left lower extremity; and c.) residuals of prostate adenocarcinoma.
All indicated tests should be performed, and the results should be reported in detail.
6.  Schedule the Veteran for an examination and medical opinion with an appropriate VA clinician to determine
 a.) the current severity of his major depressive disorder; and
 b.) whether it is as likely as not (50 percent or greater) that the Veteran has PTSD under the criteria of DSM-5, and if so, whether it is as likely as not causally related to service.  
7. Schedule the Veteran for an examination for his hearing acuity to determine if he has a current hearing loss disability for VA purposes.
The clinician should consider that the Veteran’s 1965 pre-induction audiogram results which, when converted from ASA standards to ISO-ANSI (i.e. by adding 15 dB to the 500Hz level, 10 dB to the 1000, 2000, and 3000 Hz levels, and 5 dB to the 4000 level), reflect that the Veteran had a pre-existing hearing loss disability.  He was also assigned a “1” on the PULHES Physical Profile for “H” which is indicative that audiometric average level of each ear was not more than 25 dB at 500, 1000, 200 Hz, with no individual level greater than 30 dB, and not over 45 dB at 4000 HZ. (See Army Regulation (AR) 40-501.)
The clinician should also consider that the Veteran’s 1974 audiogram results (which do not require conversion) for entrance into the Reserves reflect hearing loss disability and a profile of “2”.  A “2” is indicative of not more than 30 dB average at the 500, 1000, and 2000 Hz with no individual level greater than 35 at those frequencies, and not more than 55 dB at 4000, or audiometric level 30 dB at 500 Hz, 25 dB at 1000 and 2000, and 35 dB at 4000 Hz in the better ear. (See Army Regulation (AR) 40-501.)
The clinician should also consider that the Veteran’s duties in service were as a shipping clerk with three months in Vietnam.
The clinician should opine as to the following:
(A)	 Is it clear and unmistakable that the Veteran had a pre-existing hearing loss disability?
(B)	Is it clear and unmistakable that if the Veteran did have a pre-existing hearing loss disability it was not aggravated by active service?
(C)	If it is not both a.) clear and unmistakable that the Veteran had a pre-existing hearing loss disability and b.) clear and unmistakable that any pre-existing hearing loss disability was not aggravated by service, is it as likely as not (50 percent or greater) that the Veteran has a hearing loss disability which is causally related to, or aggravated by, active service.  
8. Obtain a VA hypertension examination with a clinical opinion from an appropriate clinician as to: 
(a) whether it is as likely as not (50 percent or greater) that the Veteran has hypertension which is causally related to service, to include his acknowledged exposure to Agent Orange during his service in Vietnam.  The examiner is requested to consider and discuss as necessary the Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS) which upgraded its previous classification to find “sufficient” evidence of an association for hypertension and monoclonal gammopathy of undetermined significance (MGUS) and exposure to Agent Orange and other herbicides used during the Vietnam War.
(b) whether it is as likely as not (50 percent or greater) that the Veteran has hypertension which is causally related to, or aggravated beyond its natural progression, by a service-connected disability, to include medication for such a disability.  In particular, the examiner should consider and discuss as necessary the contention that Nortriptyline aggravates hypertension.  If the clinician finds that a service-connected disability and/or its treating medication (i.e. Nortriptyline) aggravates the Veteran’s hypertension, the clinician should quantify the degree of aggravation.

 
M. C. GRAHAM
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Wishard