Citation Nr: 18158742 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 14-30 277 DATE: December 17, 2018 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to a compensable rating for right eye shell fragment wound (SFW) is remanded. Entitlement to a rating in excess of 30 percent for right thigh SFW residuals is remanded. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to May 1970. His service personnel records verify his combat service in the Republic of Vietnam, for which he was awarded the Combat Action Ribbon. In June 2017, a hearing was held before a Decision Review Officer (DRO) at the Regional Office (RO), and a transcript of the hearing is associated with the record. [The Veteran had also initiated an appeal of the denial of his petition to reopen a claim for service connection for a left knee disability as well as the denial of his claims for increased ratings for tinnitus and for bilateral hearing loss. However, following a May 2014 statement of the case addressing these issues, the Veteran did not file a timely substantive appeal (and he excluded these issues from the current appeal on his July 2014 VA Form 9). Consequently, these matters are not before the Board.] 1. Entitlement to service connection for obstructive sleep apnea. The Veteran contends that his current obstructive sleep apnea was caused by and/or is aggravated by his service-connected PTSD. The Veteran’s service treatment records (STRs) do not note any complaints, findings, diagnosis, or treatment of obstructive sleep apnea. Post-service, an April 2009 VA sleep study revealed a diagnosis of obstructive sleep apnea for the Veteran. Subsequent VA treatment records have documented his ongoing treatment for obstructive sleep apnea with a CPAP machine. At a May 2010 VA respiratory examination, the VA examiner diagnosed the Veteran with “sleep apnea-unrelated to PTSD.” For rationale, the VA examiner noted that “PTSD is not a risk factor for obstructive sleep apnea” and went on to note that the major causes of obstructive sleep apnea are obesity, large neck size, and family history of obstructive sleep apnea. However, the VA examiner did not provide any opinion as to whether the Veteran’s obstructive sleep apnea may have been aggravated (i.e., increased in severity beyond the natural progression of the disability) by his service-connected PTSD. Thereafter, in briefs submitted in August 2018 and September 2018, the Veteran’s representative cited to an article which suggested a link between PTSD and obstructive sleep apnea in Veterans. On remand, after all outstanding treatment records have been associated with the claims file, a new VA examination with medical opinion should be obtained. 2. Entitlement to service connection for a bilateral hip disability. The Veteran contends that he currently has a bilateral hip disability which may have developed as secondary to his service-connected right thigh SFW residuals and/or as secondary to his service-connected right leg SFW residuals. The Veteran’s STRs do not note any complaints, findings, diagnosis, or treatment of a disability in either hip. Post-service, a December 2006 VA treatment record noted the Veteran’s complaint of right hip pain. Subsequent VA treatment records documented his reports of hip pain in June 2007, bilateral hip pain in April 2009, right hip pain in May 2009 (noted to be likely sciatica), and bilateral hip pain in August 2009. At a June 2011 VA orthopedic examination, the VA examiner diagnosed the Veteran with a normal right hip and with sciatica in the left hip. The VA examiner opined that the Veteran’s normal right hip was not caused by, a result of, or due to his service-connected right thigh SFW residuals; for rationale, the VA examiner reiterated that the right hip was normal without evidence of a pathologic condition. The VA examiner also opined that the Veteran’s current left hip sciatica was less likely as not (less than 50/50 probability) caused by, a result of, or due to his service-connected right thigh SFW residuals; for rationale, the VA examiner noted that there were no documented complaints of current hip pain since a 2008 orthopedic visit – however, the VA examiner did not consider the Veteran’s multiple instances of treatment for bilateral hip pain in 2009 (as outlined above). In addition, the VA examiner did not provide any opinion as to whether the Veteran’s current left hip sciatica may have been aggravated (i.e., increased in severity beyond the natural progression of the disability) by his service-connected right thigh SFW residuals. Furthermore, the VA examiner did not provide any opinion as to whether the Veteran’s current left hip sciatica may have been caused or aggravated by his service-connected right leg SFW residuals. Thereafter, at his June 2017 DRO hearing, the Veteran testified that he had new x-rays taken three months prior which showed arthritis in both of his hips. A December 2017 VA treatment record noted that he had been approved for treatment from a private orthopedic surgeon through the Veterans Choice Program. The claims file contains only one page of a four-page January 2018 treatment record documenting an evaluation of the Veteran’s lower extremities by the private provider Shea Orthopedic Group. At a February 2018 VA hip and thigh examination, the VA examiner diagnosed the Veteran with right hip strain (and provided no diagnoses regarding the left hip). The VA examiner noted that the Veteran was recently seen by a private provider (Dr. Shea) and had new x-rays taken of his hips, but also noted that the results of these civilian x-rays were not available. No medical opinions were provided at this examination as to whether the Veteran’s current right hip strain may have been caused or aggravated by his service-connected right thigh SFW residuals or by his service-connected right leg SFW residuals. Thereafter, an April 2018 VA treatment record noted that the Veteran had received community care from Shea Orthopedic Group. In a June 2018 written statement, the Veteran noted that he was currently seeing an orthopedic surgeon. On remand, after all outstanding treatment records have been associated with the claims file, a new VA examination with medical opinion should be obtained. 3. Entitlement to a compensable rating for right eye SFW. Before the Board can make a fully-informed decision regarding the rating assigned for the Veteran’s right eye SFW disability, all outstanding pertinent treatment records must first be obtained. In particular, in August 2009 and May 2010 written statements, the Veteran noted that his eyes had been examined by two private providers (Dr. Black in Jeffersonville, Indiana and Dr. Jaegers in Louisville, Kentucky), but the reports of these examinations are not currently in the claims file. In addition, an April 2017 VA treatment record noted that he had been approved for treatment from a private optometrist through the Veterans Choice Program. [The claims file does contain private treatment records dated in February 2018 and March 2018 documenting evaluations of the Veteran’s eyes by the private provider The Eye Care Institute.] On remand, all outstanding pertinent treatment records should be obtained and associated with the claims file. In addition, in briefs submitted in August 2018 and September 2018, the Veteran’s representative noted the Veteran’s contention that his claimed disabilities had gotten worse and that “the VA examination did not fully cover the residual disabilities” caused by his service-connected disabilities. The Board notes that the Veteran’s most recent VA eye examination was conducted in February 2018. Thereafter, effective May 13, 2018, VA revised the criteria for rating disabilities of the organs of special sense (including eyes). See 83 Fed. Reg. 15,321-322 (Apr. 10, 2018). On remand, after all outstanding treatment records have been associated with the claims file, a new VA eye examination should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected right eye SFW disability, as there is an indication that the current record does not adequately reflect the severity of his condition. The examiner should give consideration to all applicable rating criteria (including the versions effective prior to and since May 13, 2018). 4. Entitlement to a rating in excess of 30 percent for right thigh SFW residuals. Before the Board can make a fully-informed decision regarding the rating assigned for the Veteran’s right thigh SFW residuals, all outstanding pertinent treatment records must first be obtained. In particular, as noted above, a December 2017 VA treatment record noted that he had been approved for treatment from a private orthopedic surgeon through the Veterans Choice Program; however, the claims file contains only one page of a four-page January 2018 treatment record documenting an evaluation of the Veteran’s lower extremities by the private provider Shea Orthopedic Group. Thereafter, in a June 2018 written statement, the Veteran noted that he was currently seeing an orthopedic surgeon and had recently gotten a Synvisc-One in both knees. [His service-connected right thigh SFW residuals are currently characterized as “residuals, SFW, right thigh with retained foreign bodies, slight atrophy and slight knee disability, Muscle Group (MG) XIII and XIV, moderate elevated to moderately severe.”] On remand, all outstanding pertinent treatment records should be obtained and associated with the claims file. In addition, in briefs submitted in August 2018 and September 2018, the Veteran’s representative noted the Veteran’s contention that his claimed disabilities had gotten worse and that “the VA examination did not fully cover the residual disabilities” caused by his service-connected disabilities. The Board notes that the Veteran’s most recent VA muscles examination was conducted in September 2012 and that his most recent VA hip and thigh examination was conducted in February 2018. On remand, after all outstanding treatment records have been associated with the claims file, a new VA muscles examination (for MGs XIII and XIV) should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected right thigh SFW residuals, as there is an indication that the current record does not adequately reflect the severity of his condition. If the VA muscles examiner determines that any additional VA examination(s) should be scheduled (including for orthopedic, neurologic, and/or scar manifestations of the right thigh SFW residuals), then such examination(s) should be scheduled accordingly. 5. Entitlement to a rating in excess of 30 percent for PTSD. Before the Board can make a fully-informed decision regarding the rating assigned for the Veteran’s PTSD, all outstanding pertinent treatment records must first be obtained. In particular, in a June 2018 written statement, he noted that he was continually seeing his psychiatrist and therapist; however, the most recent VA psychiatric treatment report of record in the claims file is dated in April 2018. On remand, all outstanding pertinent treatment records should be obtained and associated with the claims file. In addition, in briefs submitted in August 2018 and September 2018, the Veteran’s representative noted the Veteran’s contention that his claimed disabilities had gotten worse and that “the VA examination did not fully cover the residual disabilities” caused by his service-connected disabilities. The Board notes that the Veteran’s most recent VA psychiatric examination was conducted in February 2018. On remand, after all outstanding treatment records have been associated with the claims file, a new VA psychiatric examination should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected PTSD, as there is an indication that the current record does not adequately reflect the severity of his condition. 6. Entitlement to a TDIU rating. On an August 2011 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Individual Unemployability), the Veteran asserted that his “Wounds” and “PTSD” prevented him from securing or following any substantially gainful occupation. Thereafter, on a September 2012 VA Form 21-8940, he listed his right eye SFW as being one of the disabilities which prevented him from securing or following any substantially gainful occupation. A June 2013 decision denied entitlement to a TDIU rating. However, the Board finds that, because the issue of entitlement to a TDIU rating was raised in the context of the increased rating claims on appeal for his SFW disabilities and for his PTSD, the claim for a TDIU rating with regard to those disabilities is part of the increased rating appeals and is before the Board at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the Veteran should be notified once again of the requirements to establish a claim for a TDIU rating, and he should be asked to complete an updated VA Form 21-8940. On remand, after all outstanding treatment records have been associated with the claims file and after all necessary and requested development has been completed, the claim for a TDIU rating should be adjudicated after the readjudication of the other issues on appeal. 7. All Issues For the claims now being remanded, the evidence of record includes an August 2013 letter from the Social Security Administration (SSA) notifying the Veteran that he became disabled under SSA rules on April 27, 2012. On remand, all records pertaining to any applications for and awards of SSA disability benefits should be obtained and associated with the claims file as they may be pertinent to the Veteran’s claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The matters are REMANDED for the following actions: 1. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to a TDIU rating. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate a claim for a TDIU rating, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. The Veteran should also be asked to complete and submit an updated VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities at any time during the appeal period, including all outstanding treatment records of orthopedic treatment from Dr. Shea and the Shea Orthopedic Group (including the noted reports of bilateral hip x-rays) and any additional Choice-authorized orthopedic treatment provider(s), as well as all outstanding treatment records of eye treatment from Dr. Black, Dr. Jaegers, and any additional Choice-authorized eye treatment provider(s). Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records for the period from April 2018 to the present. 4. Request and obtain from the SSA all documents pertaining to any application by the Veteran for SSA disability benefits, including any decisions and/or determinations, and all supporting medical documentation utilized in rendering any decision or determination. Any negative search result should be noted in the record and communicated to the Veteran. 5. After all requested records have been associated with the claims file, schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of his current obstructive sleep apnea and any current bilateral hip disability and to determine the current severity of his service-connected right eye SFW disability, right thigh SFW residuals, and PTSD. The electronic claims file must be made available to the examiners for review in conjunction with the examinations. All necessary tests should be performed and the results reported. (a.) For obstructive sleep apnea: The sleep apnea examiner must provide an opinion as to whether it is at least as likely as not that the Veteran’s obstructive sleep apnea was either caused by or aggravated beyond its natural progression by his service-connected PTSD (with specific consideration given to the article cited by the Veteran’s representative in the August 2018 and September 2018 briefs, which suggested a link between PTSD and obstructive sleep apnea in Veterans). (b.) For the hips: The hip examiner must provide an opinion as to whether it is at least as likely as not that any current right and/or left hip disability was either caused by or aggravated beyond its natural progression by the Veteran’s service-connected right thigh SFW residuals and/or was either caused by or aggravated beyond its natural progression by his service-connected right leg SFW residuals. (c.) For the right eye: All pertinent symptomatology and findings for the Veteran’s right eye SFW disability must be reported in detail. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The eye examiner should give consideration to all applicable rating criteria (including the versions of the eye rating criteria effective prior to and since May 13, 2018). (d.) For the right thigh: All pertinent symptomatology and findings for the Veteran’s right thigh SFW residuals (to include for MGs XIII and XIV) must be reported in detail. Any appropriate DBQ should be filled out for this purpose, if possible. If the muscles examiner determines that any additional examination(s) should be scheduled (including for orthopedic, neurologic, and/or scar manifestations of the right thigh SFW residuals), then such examination(s) should be scheduled accordingly. (e.) For PTSD: All pertinent symptomatology and findings for the Veteran’s PTSD must be reported in detail. Any appropriate DBQ should be filled out for this purpose, if possible. A complete rationale for all opinions must be provided. If the clinician(s) cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician(s) must provide the reasons why an opinion would require speculation. The clinician(s) must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician(s) must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 6. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for obstructive sleep apnea (to include as secondary to the Veteran’s service-connected PTSD), entitlement to service connection for a bilateral hip disability (to include as secondary to his service-connected right thigh SFW residuals and/or his service-connected right leg SFW residuals), and entitlement to higher ratings for his right eye SFW (to include consideration of all applicable rating criteria during the appeal period), for his right thigh SFW residuals, and for his PTSD – followed by adjudication of the issue of entitlement to a TDIU rating (in light of the outcome of the other claims on appeal). If any benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel