Citation Nr: 18157009 Decision Date: 12/29/18 Archive Date: 12/11/18 DOCKET NO. 15-38 574 DATE: December 29, 2018 REMANDED Entitlement to an effective date prior to July 9, 2013 for the grant of service connection for hypertension is remanded. Entitlement to an effective date prior to July 9, 2013 for the grant of service connection for recurrent major depressive disorder is remanded. Entitlement to an initial compensable rating for the period prior to February 1, 2018 for hypertension is remanded. Entitlement to an initial rating in excess of 20 percent for the period since February 1, 2018 for hypertension is remanded. Entitlement to an initial rating in excess of 30 percent for the period prior to February 1, 2018 for recurrent major depressive disorder is remanded. Entitlement to an initial rating in excess of 50 percent for the period since February 1, 2018 for recurrent major depressive disorder is remanded. Entitlement to an initial evaluation in excess of 20 percent for service-connected right lower extremity radiculopathy is remanded. Entitlement to an initial evaluation in excess of 20 percent for service-connected left lower extremity radiculopathy is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right heel disability is remanded. Entitlement to service connection for a left heel disability is remanded. Entitlement to service connection for a cyst on the buttocks is remanded. Entitlement to service connection for a heart murmur is remanded. Entitlement to service connection for insomnia is remanded. Entitlement to service connection for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1969 to December 1972. These matters are before the Board of Veterans’ Appeals (the Board) on appeal of May 2014 and May 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board videoconference hearing which was chaired by the undersigned Veterans Law Judge at the Atlanta RO in April 2017. A transcript of the hearing has been associated with the file. In August 2017, the Board, in part reopened and remanded the issues of entitlement to service connection for insomnia and a heart murmur and also remanded the Veteran’s claim for service connection for erectile dysfunction. The Board also denied the Veteran’s claims for entitlement to service connection for a cervical spine disability, a right hip disability, a left hip disability, a right heel disability, a left heel disability and a cyst on the buttocks disability. Additionally, the Board granted higher initial ratings of 20 percent, no higher, for the Veteran’s service connected peripheral neuropathy of the right and left lower extremities. The Veteran appealed the August 2017 Board decision denying entitlement to service connection for cervical spine disability, a right hip disability, a left hip disability, a right heel disability, a left heel disability and a cyst on the buttocks disability and denying higher initial ratings in excess of 20 percent for the Veteran’s service connected peripheral neuropathy of the right and left lower extremities to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Joint Motion for Partial Remand, the Court issued an Order that vacated and remanded the claims of entitlement to service connection for a cervical spine disability, a right hip disability, a left hip disability, a right heel disability, a left heel disability and a cyst on the buttocks disability and entitlement to higher initial ratings in excess of 20 percent for the Veteran’s service connected peripheral neuropathy of the right and left lower extremities to the Board for further development. REMAND The Board finds that more development is necessary prior to final adjudication of the claims on appeal. In a May 2018 rating decision, the RO granted service connection for hypertension at an initial noncompensable disability evaluation, effective July 9, 2013 and at an initial 20 percent disability evaluation, effective February 1, 2018. The RO also granted service connection for moderate recurrent major depressive disorder at an initial 30 percent disability evaluation, effective July 9, 2013 and at an initial 50 percent disability evaluation, effective February 1, 2018. In July 2018, the Veteran filed a notice of disagreement (NOD) as to the May 2018 rating decision regarding the initial disability evaluations and effective dates of for hypertension and moderate recurrent major depressive disorder. As a result, while the Veteran expressed disagreement with the May 2018 rating decision, it appears that no subsequent statement of the case was ever issued regarding the issues of entitlement to an effective date prior to July 9, 2013 for the grant of service connection for hypertension, entitlement to an effective date prior to July 9, 2013 for the grant of service connection for recurrent major depressive disorder, entitlement to an initial compensable rating for the period prior to February 1, 2018 for hypertension, entitlement to an initial rating in excess of 20 percent for the period since February 1, 2018 for hypertension, entitlement to an initial rating in excess of 30 percent for the period prior to February 1, 2018 for recurrent major depressive disorder, and entitlement to an initial rating in excess of 50 percent for the period since February 1, 2018 for recurrent major depressive disorder. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that these issues remain pending in appellate status and require further action. See 38 U.S.C. § 7105; 38 C.F.R. § 19.26. In this regard, it is noteworthy that these claims are not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal. The Board’s actions regarding these issues are taken to fulfill the requirements of the Court in Manlincon. For the remaining claims, the June 2018 Joint Motion for Partial Remand found that the Board failed to assist the Veteran in attempting to obtain identified relevant VA and private treatment records from Dr. Wimbush, Dr. Hardin, Dr. Boland and Dr. Bryant from “OrthoAtlanta” and from the Atlanta VA Medical Center (VAMC) (specifically for the period from March 7, 2014 to May 27, 2014). Accordingly, the June 2018 Joint Motion for Partial Remand found that sufficient notice has been provided to VA to obtain treatment records from Dr. Wimbush, Dr. Hardin, Dr. Boland and Dr. Bryant from “OrthoAtlanta” and from the Atlanta VAMC and that an attempt to obtain these records must be made. Therefore, it again appears that additional records pertaining to the Veteran’s claimed disabilities may exist. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the Secretary, and must be considered if the material could be determinative of the claim). Under these circumstances, the Board also finds that VA has a duty to make a further attempt to obtain the Veteran’s private treatment records. Massey v. Brown, 7 Vet. App. 204 (1994). Accordingly, per the June 2018 Joint Motion for Partial Remand instructions, additional development is necessary in order to obtain any outstanding medical records pertaining to the Veteran’s claimed disabilities on appeal. Regarding the Veteran’s claim for initial ratings in excess of 20 percent for bilateral lower extremity radiculopathy, the Board notes that the June 2018 Joint Motion for Partial Remand found that the Veteran had not been provided a contemporaneous examination. While the Veteran last underwent a VA examination for his service-connected bilateral lower extremity radiculopathy in May 2014, it was noted that at his April 2017 hearing the Veteran testified that these disabilities had worsened. Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, to ensure that the record reflects the current severity of the Veteran’s service-connected bilateral lower extremity radiculopathy disability, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous”). The June 2018 Joint Motion for Partial Remand also determined that the Veteran had not been provided adequate medical examinations regarding his claims for service connection for a cervical spine disability and bilateral hip disabilities. Specifically, while the May 2014 VA examiner opined that the Veteran’s cervical spine disability and bilateral hip disabilities were less likely than not proximately due to or aggravated by the Veteran’s service-connected lumbar spine disability, the examiner also noted that “there is no medical record evidence present to support the above claim, nor is there any direct pathophysiology between the 2 conditions to cause the above diagnosis” (cervical spine and bilateral hip disabilities). The June 2018 Joint Motion for Partial Remand found that this statement was insufficient as it lacked clarity as the medical examiner did not explain whether this meant additional testing was necessary to reach an opinion and the examiner provided no explanation of why “medical record evidence” as opposed to the Veteran’s lay description of the onset of his cervical spine and bilateral hip disabilities were necessary to support a nexus opinion. Accordingly, as the May 2014 VA examinations have been deemed inadequate, the Board finds that new VA examinations are warranted for the Veteran’s claims for service connection for a cervical spine and bilateral hip disability to include as secondary to a service-connected lumbar spine disability. Regarding the Veteran’s claim for entitlement to service connection for an erectile dysfunction disability, the Board remanded this issue in August 2017 in order to obtain a VA examination to address the contended causal relationship between his erectile dysfunction disability and medication for treatment of a service-connected disability. Per the August 2017 Board remand instructions, the Veteran underwent a VA examination in February 2018. The examiner opined that it was less likely than not that the Veteran’s erectile dysfunction disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that she was unable to determine if the erectile dysfunction was related to the natural progression of age or any current chronic medical condition not related to the Veteran’s military service without resorting to mere speculation. However, while the February 2018 VA examiner opined it was less likely than not that the Veteran’s erectile dysfunction disability was incurred in or caused by the claimed in-service event, injury or illness, the examiner did not address whether the Veteran’s medication for a service-connected disability has aggravated his erectile dysfunction disability. The Board additionally notes that subsequent to the February 2018 VA examination, the Veteran has also been granted service connection for hypertension and recurrent major depressive disorder which also requires medication. As such the Board finds that the evidence currently of record is insufficient to resolve the claim for an erectile dysfunction disability to include as secondary to service-connected disabilities and that further medical clarification in connection with this claim is warranted. Regarding the insomnia claim, the Board again notes that the Veteran testified that his current insomnia disability is a result of medications he takes for his erectile dysfunction disability. As a result, the Board finds that the Veteran’s claim for service connection for an insomnia disability is inextricably intertwined with his claim for an erectile dysfunction disability being remanded herein. The Board will accordingly again defer decision on the matter. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Additionally, there are indications in the record that the Veteran’s insomnia is a symptom related to the Veteran’s now service-connected recurrent major depressive disorder. Accordingly, the Board finds that he should be scheduled for a VA examination and opinion to determine whether the Veteran’s insomnia disability is related to service, to include as secondary to medications for his claimed erectile dysfunction disability or as secondary to his now service-connected recurrent major depressive disorder disability. Regarding the Veteran’s claim for entitlement to service connection for a heart murmur disability, the Board finds that a remand is necessary due to the submission of additional evidence which requires the issuance of a Supplemental Statement of the Case (SSOC). Notably, the additional evidence includes voluminous VA treatment records as well as a February 2018 VA examination that have taken place since the last Statement of the Case (SOC) issued in August 2015. The additional evidence submitted since the last SOC contains pertinent findings related to the Veteran’s claim for a heart murmur disability to include the February 2018 VA examination. On remand, the agency of original jurisdiction should issue a new SSOC that considers the evidence received since the August 2015. The matters are REMANDED for the following action: 1. The RO should issue a statement of the case to the Veteran addressing the matters of entitlement to an effective date prior to July 9, 2013 for the grant of service connection for hypertension, entitlement to an effective date prior to July 9, 2013 for the grant of service connection for recurrent major depressive disorder, entitlement to an initial compensable rating for the period prior to February 1, 2018 for hypertension, entitlement to an initial rating in excess of 20 percent for the period since February 1, 2018 for hypertension, entitlement to an initial rating in excess of 30 percent for the period prior to February 1, 2018 for recurrent major depressive disorder, and entitlement to an initial rating in excess of 50 percent for the period since February 1, 2018 for recurrent major depressive disorder, including citation to all relevant law and regulation pertinent to the claim. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, these issues are to be returned to the Board for further appellate consideration, if otherwise in order. 2. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 3. Appropriate efforts must be made to obtain all available VA treatment records from the Atlanta VAMC to include records from the period from March 7, 2014 to May 27, 2014. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 4. Appropriate efforts must be made to obtain all available records of treatment pertinent to the claims on appeal from Dr. Wimbush, Dr. Hardin, Dr. Boland and Dr. Bryant from “OrthoAtlanta” should be taken. Records of any other pertinent treatment should be obtained. The Veteran’s assistance in identifying and obtaining the records should be solicited as needed. The attempts to procure records should be documented in the file. If records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 5. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for VA examination before an appropriate physician to determine the current level of severity of his service-connected bilateral lower extremity radiculopathy disabilities. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination reports should reflect review of these items. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran’s bilateral lower extremity radiculopathy disabilities. The examiner should also provide an opinion concerning the impact of the Veteran’s service-connected bilateral lower extremity radiculopathy disabilities on his ability to work. 6. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for a VA examination to determine the etiology of the claimed cervical spine and bilateral hip disabilities. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s has a current cervical spine or bilateral hip disability that is related to any incident of the Veteran’s active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that any such current cervical spine or bilateral hip disability is caused or aggravated by his service-connected lumbar spine or bilateral lower extremity radiculopathy disabilities. If the examiner finds that the Veteran has a current cervical spine or bilateral hip disability that has been permanently aggravated/worsened by his service-connected lumbar spine or bilateral lower extremity radiculopathy disabilities, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 7. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for an appropriate VA examination addressing the contended causal relationship between his erectile dysfunction disability and medication for treatment of a service-connected disability. The claims file must be provided to the examiner(s) for review. Based on the results of the Veteran’s examination and a review of the claims file, the examiner should be asked to opine whether it is at least as likely as not that his current erectile dysfunction disability was caused or aggravated (made permanently worse) by the medication for treatment of a service-connected disability (to include a lumbar spine disability, hypertension and recurrent major depressive disorder disability). If the examiner finds that the Veteran’s erectile dysfunction disability has been permanently aggravated/worsened by a service-connected disability or medication for a service-connected disability, to the extent feasible, the degree of worsening should be identified. The rationale for all opinions expressed must be provided. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 8. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for an appropriate VA examination to determine the nature and etiology of any currently present insomnia disability. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran’s current insomnia disability is related to service, or, if it is at least as likely as not (at least a 50 percent probability) that the Veteran’s insomnia disability is caused or aggravated or by his service-connected recurrent major depressive disorder disability or is cause or aggravated by the medication for treatment of a service-connected disability (to include a lumbar spine disability, hypertension and recurrent major depressive disorder disability). If the examiner finds that the Veteran’s insomnia disability has been permanently aggravated/worsened by a service-connected disability or medication for a service-connected disability, to the extent feasible, the degree of worsening should be identified. The rationale for all opinions expressed must be provided. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 9. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to   respond. Thereafter, the case should be returned to the Board for appellate review, if in order. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel