Citation Nr: 18157113 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 15-35 886 DATE: December 11, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. Entitlement to service connection for a sleep disorder, to include insomnia and organic circadian rhythm disorder, is remanded. Entitlement to service connection for disability manifested by trembling is remanded. Entitlement to service connection for disability manifested by chronic pain is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for urinary incontinence is remanded. Entitlement to service connection for left thumb disability, to include carpal/metacarpal degenerative joint disease, is remanded. Entitlement to a rating in excess of 50 percent for migraine headaches is remanded. Entitlement to a rating in excess of 10 percent for right knee torn meniscus with osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee tendonitis with osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for right shoulder strain is remanded. Entitlement to a rating in excess of 10 percent for cervical spine degenerative joint disease and degenerative disc disease is remanded. Entitlement to a rating in excess of 10 percent for lumbar spine degenerative disc disease is remanded. Entitlement to a rating in excess of 10 percent for tinnitus is remanded. Entitlement to a compensable rating for maxillary sinusitis is remanded. Entitlement to a compensable rating for bronchitis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to an effective date prior to January 15, 2013 for the award of service connection for tinnitus is remanded. Entitlement to basic eligibility for a grant for specially adapted housing is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1985 to June 1997. This matter is on appeal before the Board of Veterans Appeals (Board) from November 2012 and November 2013 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in February 2016 argument, the Veteran’s attorney raised the issue of entitlement to TDIU and presented evidence in support of the Veteran being unemployable due to the service-connected disabilities for which increased ratings are sought in this case. Accordingly, the TDIU claim is viewed as part and parcel of these claims for increase and is also on appeal before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes that the November 2013 rating decision initially denied a claim for service connection for “depression also claimed as insomnia and organic circadian sleep rhythm disorder.” As it appears that the Veteran may have intended to claim service connection for both psychiatric disorder and sleep disorder, the Board has recharacterized this single issue as the two issues listed at the top of page 1 above. Finally, in her September 2014 notice of disagreement, the Veteran indicated that she disagreed with the effective date assigned for the award of service-connection for tinnitus. She did not indicate that she disagreed with the 10 percent rating assigned. However, in the subsequent September 2015 statement of the case, the RO construed her appeal as one for an increased rating. The Veteran then perfected an appeal of this rating determination by filing an October 2015 Form 9. To afford the Veteran every consideration in relation to this disability, the Board considers both the effective date and the rating assigned to have been initially appealed. However, as a statement of the case (SOC) has not yet been issued concerning the Veteran’s appeal of the effective date, the agency or original jurisdiction is instructed to do so in the remand below. The issues of entitlement to service connection for an acquired psychiatric disorder, to include depression; sleep disorder, to include insomnia and organic circadian sleep rhythm disorder; disability manifested by trembling; disability manifested by chronic pain; hypertension; gastroesophageal reflux disease (GERD); genitourinary disability manifested by urinary incontinence; and left thumb disability, to include carpal/metacarpal degenerative joint disease, are remanded. The issues of entitlement to a rating in excess of 50 percent for migraine headaches; a rating in excess of 10 percent for right knee torn meniscus with osteoarthritis; a rating in excess of 10 percent for left knee tendonitis with osteoarthritis; a rating in excess of 10 percent for right shoulder strain; a rating in excess of 10 percent for cervical spine degenerative joint disease and degenerative disc disease; a rating in excess of 10 percent for lumbar spine degenerative disc disease; a rating in excess of 10 percent for tinnitus; a compensable rating for maxillary sinusitis; and a compensable rating for bronchitis are also remanded. Additionally, the issues of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU); entitlement to an effective date prior to January 15, 2013 for the award of service connection for tinnitus; and entitlement to basic eligibility for a grant for specially adapted housing are remanded. The Veteran has asserted that she is unemployable due to her service-connected disabilities. The evidence appears to indicate that she was most recently working as a fraud analyst. Then, in late 2010, she was approved for short term disability by her insurance. See December 28, 2010 approval letter. The evidence also indicates that she was subsequently approved for long term disability. However, it is unclear from the record whether these determinations were based on impairment from service-connected disabilities, non-service connected disabilities or a combination of the two. Accordingly, a remand is necessary to determine whether the Veteran is still on long term disability or has returned to work and to obtain any available records of the bases for the short and long-term disability determinations that have been made. The Board also notes that the evidence indicates that the Veteran has received ongoing VA medical treatment and evaluation for her service-connected disabilities and for disabilities for which she is claiming service connection. However, the most recent VA treatment records associated with the claims file are from October 2013. Accordingly, a remand is required to obtain any outstanding VA treatment records. See Bell v. Derwinski, 2 Vet. App. 611, 612 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Additionally, the evidence indicates that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. In this regard, in a January 2016 opinion, a private vocational consultant noted that the Veteran had not worked since 2011 and was receiving SSA disability benefits. Where VA has notice that the Veteran is receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). While VA must obtain only those records that are relevant to the Veteran’s claim, the basis of the Veteran’s award of SSA disability benefits is unclear from the current record so a remand is also necessary to obtain all available records. Regarding the Veteran’s claims for increase, the most recent VA examinations to assess the current severity of most of these disabilities were performed in July 2013. Given that the claims must be remanded anyway, on remand, the Veteran should be afforded current VA examinations to assess the nature and severity of her service-connected migraine headaches, lumbar spine disability, cervical spine disability, left knee disability, right knee disability, right shoulder disability, sinusitis and bronchitis. Regarding the claim for service connection for left thumb disability, the Veteran was afforded a VA examination in October 2012. After examining the Veteran and reviewing the claims file, the examiner found that determining whether the Veteran’s current mild left thumb carpal metacarpal degenerative joint disease was the result of a fall in October 1986 or other activity in the military would require resort to speculation. Due to its indefinite conclusion, this medical opinion is inadequate. Accordingly, on remand, an addendum opinion should be provided concerning the likely etiology of the Veteran’s left thumb disability. Regarding the claim for service connection for psychiatric disability, to include depression, at a July 2013 VA psychological evaluation, the psychologist diagnosed the Veteran with depressive disorder and determined that the disorder was not incurred in or caused by service. In contrast, in a November 2015 psychological evaluation, a private psychologist diagnosed the Veteran with unspecified depressive disorder. The psychologist then determined that it was more likely than not that the Veteran’s depression began in military service and had continued uninterrupted until the present and has been aggravated by her service-connected migraine headaches, lumbar spine degenerative disc disease, left knee tendonitis, residuals of right knee torn meniscus, cervical spine degenerative joint disease, right shoulder strain and tinnitus. Given the conflicting opinions and given the private psychologist’s finding concerning a secondary relationship between the Veteran’s service-connected disabilities and psychiatric disability, on remand, the Veteran should be afforded a new VA examination, which assesses the likely etiology of any current psychiatric disability. As the evidence shows that the Veteran has also received non-VA treatment for at least some of the claimed disabilities in this case, prior to arranging for the above examinations, the AOJ should ask the Veteran to identify all sources of recent treatment or evaluation she has received for her claimed disabilities and should secure copies of complete records of the treatment or evaluation from all sources appropriately identified. The Board also notes that the Veteran’s claim for specially adapted housing is inextricably intertwined with the other claims on appeal and must also be remanded. Finally, in the November 2013 rating decision, the RO granted the Veteran's claim for service connection for tinnitus and assigned a 10 percent rating effective January 15, 2013. While the Veteran submitted a statement in September 2014 expressing disagreement with the effective date assigned, no subsequent statement of the case was ever issued regarding this issue. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that this issue remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. See 38 U.S.C. § 7105; 38 C.F.R. § 19.26. In this regard, this claim is not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal. The matters are REMANDED for the following action: 1. Obtain all copies of any available SSA disability benefits determinations pertaining to the Veteran and copies of all medical records and disability evaluations upon which these determinations were based. 2. Ask the Veteran to provide an update as to whether she is still receiving long term disability benefits. 3. After securing any necessary releases, obtain from Aetna or any other appropriate source, any available records, which document the basis for the Veteran receiving short and long-term disability benefits. This information should include documentation of the disabilities which resulted in these benefits being awarded. This information should also include any medical determinations, medical assessments or other medical records relied upon in making these disability determinations. 4. Obtain all available VA treatment records dated from October 2013 to the present. 5. Ask the Veteran to identify all sources of non-VA treatment or evaluation she has received for her claimed disabilities since July 2011. Secure copies of all available records of the treatment or evaluation from all sources appropriately identified. 6. After the above development is completed, adjudicate the Veteran’s claim for entitlement to TDIU. 7. Schedule the Veteran for an orthopedic examination by an appropriate clinician to determine the current severity of her service-connected lumbar spine, cervical spine, right shoulder and left and right knee disabilities. The claims file should be made available for review in conjunction with the examination. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the disabilities under the rating criteria. For each joint, the Veteran should appropriately test the Veteran’s active motion, passive motion, pain with weight-bearing and without weight-bearing, and to the extent possible, the motion of the opposing non-damaged joint. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to each disability alone. The examiner should also discuss the effect of each disability on the Veteran’s occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without 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 is due to the examiner not having sufficient knowledge or training. 8. Schedule the Veteran for examination(s) by appropriate clinician(s) to determine the current severity of her service-connected migraine headaches, sinusitis and bronchitis. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should also discuss the effect of each disability on the Veteran’s occupational functioning and activities of daily living. 9. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current psychiatric disability. The examiner should review the claims file in conjunction with the examination. This review should include the service treatment records, any pertinent post-service VA or private medical records, any pertinent Social Security records, any pertinent short or long-term disability records, the July 2013 VA psychological evaluation, the November 2015 private psychological evaluation, the most recent ratings code sheet showing the Veteran’s current service-connected disabilities, and any other information in the claims file deemed pertinent. The examiner should then provide medical opinions in answer to the following questions: (a). Is it at least as likely as not (i.e. a 50 percent chance or greater) that any current psychiatric disability (to include the depression diagnosed by the July 2013 and November 2015 psychologists), is directly related to the Veteran’s military service? (b). Is it at least as likely as not (i.e. a 50 percent chance or greater) that any current psychiatric disability (to include the depression diagnosed by the July 2013 and November 2015 psychologists), has been caused by one or more of the Veteran’s service-connected disabilities? (c). Is it at least as likely as not (i.e. a 50 percent chance or greater) that any current psychiatric disability (to include the depression diagnosed by the July 2013 and November 2015 psychologists), has been aggravated by one or more of the Veteran’s service-connected disabilities? If any psychiatric disability has been aggravated by one or more of the service-connected disabilities, the examiner should attempt to quantify the extent of the aggravation. A specific rationale should be given for each opinion provided. 10. Obtain an addendum opinion from an appropriate clinician to the October 2012 VA examiner concerning the likely etiology of the Veteran’s left thumb disability. The claims file must be reviewed by the examiner in conjunction with the examination. This review should include the service treatment records, any pertinent post-service medical records, the October 2012 VA examination report and any other information in the claims file, which is deemed pertinent. The clinician should then provide an opinion as to whether it is at least as likely as not (i.e. a 50% chance or greater) that the Veteran’s current left thumb disability is related to service, including the left thumb injury she incurred therein. The clinician should provide a specific rationale for the opinion given. The clinician may determine that an examination is necessary prior to the rendering of the medical opinion requested above. If so, such an examination should be provided. 11. Issue a statement of the case to the Veteran addressing the matter of entitlement to an effective date prior to January 15, 2013 for the award of service connection for tinnitus. The Veteran must be advised of the time limit for filing a substantive appeal. Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order. (Continued on the next page)   12. Readjudicate the claims. If any remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel