Citation Nr: 1808098 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-25 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a condition of the hands and fingers, including osteoarthritis and trigger finger, to include as secondary to type 2 diabetes mellitus (diabetes) and/or diabetic neuropathy. 2. Entitlement to service connection for sleep apnea, to include as secondary to diabetes. 3. Entitlement to service connection for hypertension, to include as secondary to diabetes and/or diabetic neuropathy. 4. Entitlement to an initial disability rating in excess of 40 percent for diabetic neuropathy of the right upper extremity. 5. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 6. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to PTSD. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to July 1976, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In January 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. Additionally, in his June 2014 substantive appeal, the Veteran also requested a decision review officer (DRO) hearing at the RO prior to the Board hearing "if necessary." However, the Veteran never definitively stated if he wanted a DRO hearing, he attended the January 2017 Board hearing, and he has not raised this lack of a DRO hearing as a contention of error during the course of the appeal. Accordingly, the Board considers the Veteran's conditional request for a DRO hearing to be withdrawn. The issues of (1) service connection for a condition of the hands and fingers; (2) service connection for sleep apnea; and (3) service connection for hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the entire claim period, the symptoms and overall impairment caused by the Veteran's PTSD most nearly approximated occupational and social impairment with deficiencies in most areas. 2. For the entire claim period, the Veteran's right upper extremity diabetic neuropathy most nearly approximated severe incomplete paralysis of all radicular groups. The Veteran's right side is his dominant side. 3. The evidence of record demonstrates that the Veteran's service-connected PTSD renders him unable to obtain or maintain gainful employment. 4. Based upon the Board's award of a TDIU for PTSD and the acknowledgement that the Veteran's right upper extremity diabetic neuropathy most nearly approximated severe incomplete paralysis, the Veteran has a single service-connected disability rated at 100 percent plus an additional service-connected disability having a rating greater than 60 percent. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an initial disability rating of 70 percent, but no higher, for right upper extremity diabetic neuropathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8513 (2017). 3. The criteria for a TDIU due to PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). 4. The criteria for special monthly compensation (SMC) at housebound rate have been met. 38 U.S.C. §§ 1114(s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Principles Regarding Increased Rating Claims Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Where, as here, a Veteran expresses dissatisfaction with the assignment of initial ratings following awards of service connection for disabilities, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Specific to the Veteran's PTSD claim, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. Under that formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a Veterans impairment must be "due to" those symptoms, and that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Another factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). A GAF score of 51 to 60 indicates moderate symptoms (e.g., flattened affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). Id. Comparatively, regarding the Veteran's right upper extremity diabetic neuropathy claim, it is currently assigned a 40 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8513 regarding paralysis of all radicular groups. Under this Diagnostic Code, moderate incomplete paralysis warrants the assignment of a 40 percent rating for the major (dominant) side and a 30 percent rating for the minor (non-dominant) side. Severe incomplete paralysis warrants the assignment of a 70 percent rating for the major side and a 60 percent rating for the minor side. Lastly, complete paralysis warrants the assignment of a 90 percent rating for the major side and an 80 percent rating for the minor side. Additionally, within this context, the terms "mild," "moderate," and "severe" are not defined. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as "mild" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. Having addressed these applicable rating principles, the Board will now proceed to address the merits of the Veteran's claims. Increased Initial Rating for PTSD As indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitled to an initial rating of 70 percent for the entire claim period for his PTSD. In support of this determination, the Board notes that throughout the claim period, the Veteran has displayed: suicidal ideation; impaired impulse control manifested by unprovoked irritability with periods of violence; difficulty to adapting to stressful circumstances; and an inability to establish and maintain effective relationships. Specifically, in September 2011, the Veteran stated that he was very short-tempered and could become anxious and apprehensive in crowds. As an example, the Veteran stated that he leaves the grocery store if the cashier line becomes too long. The Veteran also reported that he had nightmares for years and that he has awoken from sleep sweating. The Veteran stated that tragic events replayed in his mind and that he now sobs and prayed for dead animals on the side of the road. Regarding his social and family life, the Veteran reported that he had been married 4 times and that all of his wives have told him that he was callous. Lastly, the Veteran stated that he tended to laugh or giggle during stressful situations and that he had difficulty remembering things, which led him to be even more frustrated and angry. In July 2013, the Veteran reported that he was taking medication to control his rage, anger, anxiety, depression, and isolation. He stated that he reacted to loud noises, suffered from a sense of impending doom, had difficulty concentrating, and had a loss of memory. The Veteran again stated that he was suffering from recurring nightmares and felt concerned about feelings of hostile rage. The Veteran stated that his wife told him that he kicked and panted and his sleep, resulting in them sleeping in separate bedrooms. In conjunction with his isolation from his spouse, the Veteran stated that it was difficult for him to reach out to others, maintain relationships, and make friends. The Veteran elaborated that he did not trust anyone and did not desire to be close to any other persons, including his wife. He reported that he had more conversations with his dog than his wife. Lastly, the Veteran reported that he had contemplated suicide in the past, but always publicly denied it because he believed that it could weigh against him regarding employment prospects. Thereafter, in January 2017, the Veteran further reported that, while he was asleep, he had previously attempted to kill his wife. He reported that his spouse would not attend the January 2017 Board hearing because she was afraid that, if she testified about the Veteran's PTSD symptoms, the Veteran would be arrested. The Veteran stated that he had become overly-worried about security evidenced by his routine of checking the doors in his home, purchasing a deadbolt lock, and keeping a weapon close to him while sleeping. The Veteran again reported suicidal ideations, isolative behavior, problems with anger, as well as memory and concentration issues. Relatedly, in a February 2017 statement, the Veteran's spouse indicated that the Veteran indeed had tried to kill her while he was asleep with a flashlight. Further, she described isolative and irritable behavior. In addition to the lay reports recounted above, the medical evidence currently associated with the claims file also is supportive of a 70 percent initial rating. Specifically, in an October 2011 VA treatment record, the clinician noted that the Veteran suffered from intrusive memories, rare nightmares, and social isolation. Although he was not suicidal at the time of treatment, the Veteran reported that his PTSD symptoms had been exacerbated recently by a stressful family event. Approximately 2 months later, as recorded in a December 2011 VA treatment record, the Veteran reported for treatment endorsing increasing isolation and nightmares. The Veteran stated that he often did not remember his nightmares, but that his wife told him that he kicked and screamed while asleep. The Veteran reported that he did not trust anyone and pushed others away. He stated that he avoided large crowds, waiting rooms, and crowded grocery stores and that he was startled by loud noises. The Veteran then told the clinician that he felt depressed, that he was irritable, and that he had worrisome episodes of road rage. Lastly, the Veteran stated that recently he suffered from a lack of attention and was prone to ramble while speaking, sometimes forgetting what he was talking about. During a February 2012 VA PTSD examination, the Veteran reported his multiple marriages and a strained relationship with his children. After diagnosing the Veteran with PTSD, the examiner noted the following symptoms: anxiety; panic attacks occurring weekly or less; chronic sleep impairment; and difficulty in establishing and maintaining effective work relationships. Thereafter, in December 2012, the Veteran reported to a VA clinician that he was becoming comfortable with isolation and that he still suffered from occasional bouts of anger. Although a mental status examination did not reveal suicidal ideation, psychoses, poor insight or judgment, or less-than intact cognition, the Veteran did complain of a short-term memory problem. Accordingly, in light of the above, the Board concludes that the Veteran's PTSD symptoms warrant the assignment of a 70 percent disability rating. Thus, to this extent, the Veteran's claim will be granted. However, the Board also finds that the Veteran is not entitled to the next-higher rating of 100 percent. Specifically, throughout the entirety of the claim period, the Veteran did not demonstrate: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; a persistent danger of hurting himself or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place; or memory loss for his own name, names of close relatives, or his own prior occupation. In this regard, the Board first acknowledges the Veteran and his spouse's testimony regarding him trying to kill her with a flashlight while he was sleeping. However, the Board notes that this was an isolated occurrence and, throughout the entirety of the appeal, multiple VA clinicians have found that the Veteran presented a low risk for harming himself or others. See, e.g., May 2014 VA Treatment Record. Next, the Board also acknowledges the Veteran's reports of memory loss and a reduction in his ability to concentrate. However, the Board notes that at no point during the claim period has the Veteran been found unable to remember: (1) his own name; (2) the names of close relatives; or (3) his own prior occupations. The Veteran's memory and concentration issues appear to be more analogous to the loss of memory symptoms contemplated by a 50 percent rating. As the Veteran's PTSD did not produce symptoms analogous to those contemplated by the 100 percent rating criteria, the Board finds that rating higher than 70 percent is not warranted. Accordingly, the Board will deny the Veteran's claim to this extent. Increased Initial Rating for Right Upper Extremity Diabetic Neuropathy Similarly, as indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitled to an initial disability rating of 70 percent for his right upper extremity diabetic neuropathy for the entire claim period. In reaching this conclusion, the Board finds that, throughout the appeal, the Veteran's disability most nearly approximated severe incomplete paralysis of all radicular groups. As such, the Veteran's claim is granted to this extent. In support of this determination, the Board first notes that in September 2011, the Veteran stated that he had been experiencing tingling, numbing, and pain in both of his hands and all of his fingers. Thereafter, during the January 2017 Board hearing, the Veteran's representative stated that the Veteran's right arm was numb most of time and that he was prescribed a maximum dose of gabapentin. See Hearing Tr. at 4. The Veteran then testified that he had lost the ability to properly feel heat sensations in his right hand. Id. at 6-8. Additionally, the Veteran testified that he had lost strength in his right arm and that his right arm would unexpectedly drop on occasion, causing him to fall when walking with a cane. Id. Relatedly, in March 2017, the Veteran's spouse stated that the Veteran needed assistance tying his shoes, breaking medications into pill boxes, and buttoning his shirts. Additionally, the Veteran's spouse stated that the Veteran had difficulty lifting things or holding hot items. In addition to the lay evidence of record, the Veteran also underwent three VA examinations during the course of the claim relevant to his right upper extremity diabetic neuropathy. First, in a December 2011 VA examination, the examiner noted that the Veteran displayed constant severe constant pain and constant severe numbness of the dominant right upper extremity. While musculoskeletal, muscle strength, and neurological examinations of the right upper extremity did not produce any abnormal results, the examiner noted that reflexes were decreased for the Veteran's right-sided biceps, triceps, brachioradialis, and index finger. Thereafter, in a June 2013 VA diabetic sensory-motor neuropathy examination, the examiner diagnosed the Veteran with bilateral upper extremity diabetic peripheral neuropathy. The Veteran stated that he suffered from constant numbness and tingling. Additionally, he reported that he had woken up at night with extreme pain. The examiner marked the following as right upper extremity symptoms: severe constant pain; severe intermittent pain; severe paresthesias or dysesthesias; severe numbness. Strength testing revealed less than normal strength regarding the Veteran's right-sided wrist flexion and extension, grip, and pinch. Additionally, the Veteran registered deficiencies during light touch, position sense, and cold sensation testing. Lastly, in an April 2017 VA examination, the Veteran stated that he was right hand dominant and that he had problems using his laptop at home because he could not feel it. The examiner noted that the Veteran suffered from mild intermittent pain, mild paresthesias or dysesthesias, and moderate numbness of the right upper extremity. The symptoms noted by the VA examiners, as well as those described by the Veteran and his spouse, indicate that the Veteran's right upper extremity diabetic neuropathy is best described as severe incomplete paralysis-warranting the assignment of a 70 percent rating. Comparatively, at no time during the appeal, did any competent medical professional indicate that the Veteran suffered from complete paralysis of the right upper extremity. As such, the Board cannot assign the Veteran the next-higher rating of 90 percent. Thus, to this extent, the Veteran's claim is denied. TDIU Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). However, VA may not take into account the individual Veteran's age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment-defined as when a Veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop)-shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). At the outset, the Board notes that the Veteran meets the schedular requirements for a TDIU. Service connection has been established for the following disabilities: PTSD (70 percent); right upper extremity diabetic neuropathy (70 percent); left upper extremity neuropathy (20 percent); diabetes (20 percent); left lower extremity diabetic neuropathy (20 percent); right lower extremity diabetic neuropathy (20 percent); bilateral tinnitus (10 percent); left forearm scar (10 percent); bilateral hearing loss (10 percent); anal fissurectomy residuals (noncompensable); and anemia (noncompensable). Regarding the Veteran's education, training, and occupational history, the record reflects that: (1) the Veteran had previously taken courses at a community college; (2) he was employed after service as a federal law enforcement officer; and (3) he stopped working around the years of 2007 or 2008. Moving beyond the Veteran's education, training, and occupational history, the record contains evidence indicative of the impact of the Veteran's PTSD on his ability to obtain substantially gainful employment. Specifically, at the January 2017 Board hearing, the Veteran testified that he stopped working ultimately because he found it very difficult to work with others. Hearing Tr. at 16-18. The Veteran further explained that he could not work with other people because of irritability, a short temper, and rage. Id. The Board finds the Veteran's testimony to be credible in the instant case. Accordingly, in light of the occupational effects of the Veteran's PTSD-and resolving all reasonable doubt in the Veteran's favor-the Board finds that the Veteran's service-connected PTSD has precluded him from obtaining and maintaining substantially gainful employment. As such, entitlement to a TDIU is warranted. See 38 C.F.R. § 4.16(a). Special Monthly Compensation (SMC) SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In Bradley v. Peake, 22 Vet.App. 280, 293 (2008), the Court of Appeals for Veterans Claims (Court) held that a grant of TDIU based on a single disability constitutes a service-connected disability rated as total for purposes of section 1114(s). In the instant case, the above grants of a TDIU based on PTSD as well as an initial 70 percent rating for right upper extremity diabetic neuropathy qualify the Veteran for an award of SMC at the housebound rate. 38 C.F.R. § 3.350(i). As such, the Board will also grant the Veteran SMC at the housebound rate in recognition of its obligation to maximize the benefits available to veterans. See Buie v. Shinseki, 24 Vet. App. 242 (2010). ORDER An initial disability rating of 70 percent for PTSD is granted for the entire claim period. An initial disability rating of 70 percent for right upper extremity diabetic neuropathy is granted for the entire claim period. Entitlement to a TDIU based on service-connected PTSD is granted. Entitlement to SMC at the rate provided by 38 U.S.C. § 1114(s) is granted, effective September 8, 2011. REMAND Although the Board regrets the additional delay, further development is required prior to adjudication of the Veteran's service connection claims for a condition of the hands and fingers, sleep apnea, and hypertension. Condition of the Hands and Fingers Relevant to the Veteran's hands and fingers claim, the Veteran was a provided a VA examination in April 2017. During this examination, the examiner acknowledged that the Veteran had degenerative joint disease or osteoarthritis at the right third and fourth fingers, as well as the left thumb, second, third, and fourth fingers. However, the examiner also indicated that the Veteran did not have a current diagnosis associated with a contention of residuals of trigger finger surgeries. The examiner then provided a negative nexus opinion between the Veteran's diabetes and diabetic neuropathy and trigger finger surgery residuals as the examiner found no residuals status post trigger finger surgeries in January 2015. In explaining the opinion, the examiner stated that it was widely known that people who had diabetes were more likely to develop trigger fingers. However, the Board finds the April 2017 VA examination inadequate for adjudicative purposes. Specifically, in McClain v. Nicholson, the Court held that the "current disability" requirement for service connection is satisfied if the Veteran had a disability at any point during the pendency of the claim-even if the disability completely resolved. 21 Vet. App. 319 (2008). As the examiner only issued an opinion as to the state of the Veteran status post trigger finger surgeries, but not before the surgeries, the Board will remand the matter so that an additional examination may be obtained. Further, the Board also notes that the record is currently devoid of an examination or medical opinion as to the etiology of the Veteran's osteoarthritis of both hands. This too should be addressed by the examination obtained on remand. Sleep Apnea In regard to the Veteran's sleep apnea claim, the Board finds that this claim must be remanded so that the Veteran may be afforded a VA examination or medical opinion. Firstly, the record currently indicates that the Veteran suffers from sleep apnea. Specifically, an October 2011 sleep study report from Franciscan Sleep Disorders Centers indicated that the Veteran had severe obstructive sleep apnea. Next, the evidence indicates that this disability may be associated with service. At the January 2017 Board hearing, the Veteran testified that during his first marriage in 1972, while he was still in service, his wife told him that he choked while he slept. See Hearing Tr. at 22-23. However, despite the above, the record currently lacks sufficient medical evidence to make a decision on the claim as an etiological opinion has not yet been provided. Accordingly, the Board will remand this issue so that sufficient nexus evidence may be obtained. Hypertension Lastly, in regard to the Veteran's hypertension claim, the Board will also remand the matter due to the inadequacy of a May 2012 VA medical opinion. Specifically, the May 2012 VA clinician opined that the Veteran's current hypertension was less likely than not proximately due to or the result of the Veteran's diabetes. In support of the opinion, the clinician explained that the Veteran likely had hypertensive tendency prior to his diagnosis of diabetes in 2007. Additionally, despite the negative conclusion, the clinician also stated that the Veteran's hypertension was as least as likely as not essential hypertension that commonly occurred concomitantly with diabetes. The Board finds this opinion inadequate in several respects. Firstly, recently in Frost v. Shulkin, the Court held that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis. 2017 U.S. App. Vet. Claims LEXIS 1747, at *1-2 (Nov. 30, 2017). The Court explained that "for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." Id. at *2. As such, the May 2012 opinion is inadequate as its rationale is partly dependent upon hypertension being active prior to the diagnosis of diabetes. Secondly, the May 2012 opinion did not address the theory of aggravation. As such, it is incomplete as it did not discuss whether the Veteran's hypertension was aggravated beyond its natural progression by diabetes. Lastly, the clinician made contradictory findings within the opinion itself, muddling the ultimate conclusion. While the clinician initially provided a negative nexus opinion, within the rationale the clinician stated that the Veteran's hypertension was at least as likely as not essential hypertension that commonly occurred concomitantly with diabetes. Due to these errors, the Board finds that remand is warranted so that a new opinion may be obtained. Records Given the need to remand the foregoing issues to provide the Veteran with VA examinations and medical opinions, any outstanding VA treatment records should also be obtained. Specifically, the AOJ should attempt to obtain all VA treatment records dated since February 2017. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file. Specifically, obtain any VA treatment records dated since February 2017. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. After the above has been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate VA clinician to determine the nature and etiology of any condition of the hands and fingers, including osteoarthritis and trigger finger. The claims file, including a copy of this remand, must be made available to and reviewed by the clinician. The clinician should then address the following: (a) Please identify all medical conditions of the hands and fingers by diagnosis. Please note that although the Veteran may not meet the criteria for a certain diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. (b) For each condition identified, please state whether it is at least as likely as not (50 percent probability or more) that it had its onset in or is otherwise related to service. (c) For each condition identified, please state whether it is at least as likely as not (50 percent probability or more) that it was caused by the Veteran's service-connected diabetes. (d) For each condition identified, please state whether it is at least as likely as not (50 percent probability or more) that it was aggravated beyond its natural progression by the Veteran's service-connected diabetes. (e) For each condition identified, please state whether it is at least as likely as not (50 percent probability or more) that it was caused by the Veteran's service-connected diabetic neuropathy. (f) For each condition identified, please state whether it is at least as likely as not (50 percent probability or more) that it was aggravated beyond its natural progression by the Veteran's service-connected diabetic neuropathy. If any identified condition conditions of the hands and fingers was worsened beyond normal progression (aggravated) by the service-connected diabetes or diabetic neuropathy, please attempt to quantify the degree of aggravation beyond the baseline level that is attributable to the service-connected diabetes or diabetic neuropathy. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim for service connection, including (1) the argumentation and literature submitted by the Veteran in June 2016, and (2) the testimony presented at the January 2017 Board hearing. A complete rationale for any opinions rendered must be provided. 3. After Item (1) has been completed to the extent possible, send the Veteran's claims file to an appropriate VA clinician to determine the nature and etiology of his sleep apnea. The claims file, including a copy of this remand, must be made available to and reviewed by the clinician. If the clinician determines that an examination is necessary, one should be provided. The clinician should then address the following: (a) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea had its onset in or is otherwise related to service. (b) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea was caused by the Veteran's service-connected diabetes. (c) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea was aggravated beyond its natural progression by the Veteran's service-connected diabetes. If sleep apnea was worsened beyond its normal progression (aggravated) by the service-connected diabetes, please attempt to quantify the degree of aggravation beyond the baseline level that is attributable to the service-connected diabetes. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim for service connection, including the testimony provided at the January 2017 Board hearing. A complete rationale for any opinions rendered must be provided. 4. After Item (1) has been completed to the extent possible, send the Veteran's claims file to an appropriate VA clinician to determine the nature and etiology of his hypertension. The claims file, including a copy of this remand, must be made available to and reviewed by the clinician. If the clinician determines that a new examination is necessary, one should be provided. The clinician should then address the following: (a) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension was caused by the Veteran's service-connected diabetes. (b) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension was aggravated beyond its natural progression by the Veteran's service-connected diabetes. (c) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension was caused by the Veteran's service-connected diabetic neuropathy. (d) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension was aggravated beyond its natural progression by the Veteran's service-connected diabetic neuropathy. The clinician should note that, pursuant to the Court of Appeals for Veterans Claims' holding in Frost v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1747 (Nov. 30, 2017), it is not a barrier to service connection if it is determined that the Veteran had hypertensive tendencies prior to the official diagnosis of diabetes. If hypertension was worsened beyond normal progression (aggravated) by the service-connected diabetes or diabetic neuropathy, please attempt to quantify the degree of aggravation beyond the baseline level that is attributable to the service-connected diabetes or diabetic neuropathy. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim for service connection. A complete rationale for any opinions rendered must be provided. 5. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs