Citation Nr: 1808539	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  04-25 786	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral kidney cysts, to include as due to herbicide exposure or as secondary to service-connected diabetes mellitus.

2.  Entitlement to service connection for hypertension, to include as due to herbicide exposure.

3.  Entitlement to an effective date earlier than November 21, 2011, for the award of a 60 percent rating for degenerative disc disease of the lumbosacral spine.

4.  Entitlement to an effective date earlier than November 21, 2011, for the award of Dependents' Educational Assistance (DEA) benefits.

5.  Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 21, 2011.

6.  Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD), to include entitlement to service connection for alcoholism secondary to PTSD.

7.  Entitlement to an evaluation in excess of 10 percent prior to December 30, 2010, and to an evaluation in excess of 20 percent thereafter for peripheral neuropathy with sciatic radiculopathy of the left lower extremity, to include entitlement to separate ratings for radiculopathy and sciatica of the left lower extremity.

8.  Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

A. Fagan, Counsel


INTRODUCTION

The Veteran served on active duty from August 1964 to July 1967.

This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2010, April 2012, November 2012, and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In March 2015, the Board, in pertinent part, denied entitlement to: 1) a rating in excess of 50 percent for PTSD; 2) a rating in excess of 10 percent for right lower extremity peripheral neuropathy; and, 3) a rating in excess of 20 percent, to include separate ratings, for left lower extremity peripheral neuropathy and sciatica.  The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court) which, in August 2017, issued a memorandum decision vacating the March 2015 Board decision to the extent that it denied the PTSD and peripheral neuropathy/sciatic increased rating claims, and remanding the claims to the Board.  Parenthetically, the Board notes that the Court affirmed the March 2015 Board decision to the extent that it denied increased ratings for diabetes mellitus, hearing loss, and erectile dysfunction.

Also in March 2015, the Board remanded the issues of entitlement to service connection hypertension and kidney cysts.  Those issues, along with effective date and TDIU issues listed on the title page of this decision, were again remanded by the Board in July 2016.  However, the Board points out that in July 2016, the Board denied entitlement to secondary service connection for hypertension and remanded the issue for consideration on a direct basis only.  The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

The issues of entitlement to increased ratings for PTSD, peripheral neuropathy of the bilateral lower extremities, and effective dates earlier than November 21, 2011, for the awards of entitlement to TDIU and DEA benefits, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The most probative evidence is against finding that the Veteran's kidney (renal) cysts had their onset in service, are otherwise related to service, to include herbicide exposure therein, or were otherwise caused or aggravated by service-connected diabetes mellitus.

2.  The most probative evidence of record is against finding that the Veteran's hypertension manifested during service, manifested within a year of service, or is otherwise related to service, to include herbicide exposure therein.

3.  Prior to November 21, 2011, the Veteran's degenerative disc disease of the lumbosacral spine was not manifested by incapacitating episodes of at least six weeks duration during the past 12 months or limitation of thoracolumbar spinal motion even approaching any ankylosis of the spine.


CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for kidney cysts have not been met.  38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).

2.  The criteria for establishing service connection for hypertension have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

3.  The criteria for an effective date earlier than November 21, 2011, for the grant of an increased 60 percent rating for the service-connected degenerative disc disease of the lumbosacral spine are not met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection

The Veteran is seeking service connection for bilateral kidney cysts, to include as a result of herbicide exposure in service or as secondary to diabetes mellitus.  He is also seeking service connection for hypertension on a direct basis.  Parenthetically, the Board observes that service connection for secondary service connection was denied by the Board in July 2016.  Unfortunately, the preponderance of the evidence is against findings that he is entitled to service connection for his bilateral kidney cysts on any basis, or for hypertension on a direct basis.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. 
§ 3.303(a)(2017).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury.  38 C.F.R. §  3.310(a).  This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Kidney Cysts

Here, the record establishes that the Veteran has benign renal cysts, as shown on imaging in 2008, 2009, 2010, 2012, and 2015.  Additionally, respectively related to his direct and secondary service connection theories of contention, in-service exposure to herbicides is presumed based on the Veteran's Vietnam service, and the Veteran is service-connected diabetes mellitus.  Nevertheless, the most probative evidence fails to show that the Veteran's renal cysts are related to service or to service-connected diabetes mellitus.

In this regard, the Board finds the most probative evidence of record to be an August 2016 VA opinion that the Veteran's benign renal cysts were less likely as not related to service, to include herbicide exposure therein, and were less likely as not caused or aggravated by his diabetes mellitus.  The examiner explained that no direct correlation between herbicide exposure and renal cysts was shown by medical literature, and the examiner did not find kidney-related symptoms in the service treatment records.  Concerning secondary service connection, the examiner noted that there was no evidence in medical literature that renal cysts are a complication of or worsened by diabetes mellitus.  The examiner indicated that there is no known cause for the Veteran's renal cysts, and discussed other theories raised by medical literature, noting that the risk of simple kidney cysts increases with age and that renal cysts are more common in men.  In particular, the examiner noted that, according to UpToDate, simple renal cysts are commonly observed in normal kidneys, with increasing incidence with age, and are benign, asymptomatic lesions that rarely require treatment.  The examiner also explained that the increased size of the Veteran's renal cyst was due to the natural progression of the condition as there was no evidence that the cyst had become infected.

The Board finds the August 2016 examiner's opinion on the question of causal links probative, as it was based on a review of the claims file and relevant facts, and included a detailed rationale with reference to medical literature.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Moreover, the opinion is consistent with the findings of two prior and separate VA examiners, who also declined to find a nexus between the Veteran's renal cysts and service and/or service-connected diabetes.  Of note, in a January 2011 opinion, a VA examiner referenced additional medical literature related to diabetes that was negative for evidence of renal cysts as a complication of diabetes mellitus.  The August 2016 opinion is also consistent with service treatment records, which are negative for evidence of renal cysts or kidney complaints, as well as the post-service clinical evidence, which is negative for findings that the Veteran's renal cysts may be related to service, to include herbicide exposure therein, or to diabetes mellitus.  

To the extent that the Veteran asserts an association between his renal cysts and his service or herbicide exposure, or his diabetes mellitus, his lay assertions are not competent, as the Veteran has not been shown to have the appropriate medical training and expertise to render a medical opinion on the question of a causal relationship between his renal cysts and his exposures in service or his diabetes mellitus - matters within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  Thus, his lay assertions in that regard have no probative value.

The Board acknowledges that there is evidence of record to suggest an association between diabetes and renal cysts.  In this regard, an April 2015 VA examiner stated that "[b]enign renal cysts may be related to or associated with DM."  However, the examiner then went on to state that such an association had not been established or proven based on a search of medical literature, and the latter finding is consistent with the opinions of both prior January 2011 and subsequent August 2016 VA examiners.  In any event, given the internal inconsistency along with the absence of supporting rationale, the opinion as to an a possible association between benign renal cysts and diabetes mellitus has no probative value.  

The Board also recognizes that Veteran has referenced two articles discussing studies suggestive of a potential association between renal cysts and diabetes mellitus, and further acknowledges that articles or treatises can provide important support if they discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion.  Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998).

Here, however, neither study is deemed probative, as each is factually distinguishable from the present case.  In this regard, concerning the first study, while both renal cysts and diabetes are discussed, it is notably in the setting of a mutation in the gene encoding the transcription factor hepatocyte nuclear factor (HNF)-1ß, which is not shown by the evidence or even suggested here.  Furthermore, the abstract provided by the Veteran does not discuss a causal link between diabetes and renal cysts.  Rather, it discusses an association between HNF-1ß mutations and renal disease, noting that, of a variety of abnormalities of renal development in those with HNF-1ß, the most consistent clinical feature is the presence of renal cysts.  While it also noted that "most affected also have early-onset diabetes," and that such occurrence of renal cysts and diabetes with an HNF-1ß mutation is termed renal cysts and diabetes (RCAD) syndrome, there is no discussion of any causal relationship between diabetes mellitus and renal cysts, and certainly not outside of the presence of an HNF-1ß gene mutation.  Here, there is nothing to show that the Veteran has RCAD, nor is he service-connected for any gene mutation, and there is nothing in the abstract to suggest that renal cysts are caused or aggravated by diabetes.  Thus, the study is neither relevant nor probative.

Regarding the second article abstract submitted by the Veteran, though submitted in support of a relationship between diabetes and hypertension, the Board notes that it does discuss renal disease in the context of diabetes.  However, those individuals studied had juvenile diabetes and were diagnosed with diabetes as children or adolescents.  Moreover, the risk of renal disease in those with juvenile diabetes was noted to be associated with a genetic predisposition to hypertension.  As the Veteran has not been diagnosed with juvenile diabetes, and has not been shown to have a genetic predisposition to hypertension, the study is also irrelevant, and therefore, also deemed not probative. 

Here, the only competent and probative evidence weighs against the Veteran's claim, and the Board simply cannot conclude that the Veteran's benign renal cysts were at least as likely as not related to service, to include herbicide exposure therein, or caused or aggravated by his diabetes mellitus, as there is no competent and credible medical opinion of record establishing such relationships.  Although the Board is free to supplement insufficient medical evidence by seeking additional opinions, it is not free to ignore or disregard sufficient medical evidence or to substitute its own judgment on medical matters.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991).

In summary, the competent and credible evidence of record does not approach a state of equipoise that enables the Board to find that the Veteran's current renal cysts had their onset during service or are otherwise related to service, to include as a result of herbicide exposure therein, or are caused or aggravated by service-connected diabetes mellitus.  Thus, service connection for renal cysts on any basis is denied.

Hypertension

In this case, the record shows that the Veteran was initially diagnosed with hypertension in 2005 after a history of borderline readings.  However, while the Veteran's blood pressure was slightly elevated at separation at 132/70, service treatment records (STRs) are otherwise silent for diagnosis of hypertension or elevated blood pressure readings.  Nevertheless, the Veteran is presumed to have been exposed to herbicides during his service in Vietnam.  Thus, the remaining questions are whether a causal relationship exists between the Veteran's current hypertension and service, to include herbicide exposure therein, or, as hypertension is one of the conditions listed in 38 C.F.R. § 3.309(a), whether service connection may be established based on the chronic disease presumption.  See 38 U.S.C. §§ 1110, 1112(a), 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309(a); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  Unfortunately, both questions must be answered in the negative.
 
The most probative evidence of record addressing the foregoing questions is the opinion of an August 2016 examiner.  That examiner reviewed the Veteran's claims file, noted that hypertension was not diagnosed in service, that the Veteran did not complain of high blood pressure at separation, that hypertension was not diagnosed until 2005, and concluded that the Veteran's current hypertension was less likely than not incurred in or caused by service.  He explained that the Veteran's hypertension diagnosed in 2005 was essential hypertension, which has no specific cause.  However, he noted that the Veteran had risk factors for hypertension, the most significant of which was morbid obesity.  The examiner also noted that a review of medical literature did not show a direct correlation between hypertension and herbicide exposure.  

The 2016 VA examiner's opinion is highly probative, because it was based on a thorough review of the claims file and a review of medical literature, addressed the relevant facts, and was supported by rationale.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Moreover, there is no competent opinion of record that contradicts it.  In fact, the opinion is generally supported by other evidence of record, including prior opinions of April 2015 and January 2010 VA examiners, who similarly did not otherwise indicate an association between the Veteran's hypertension and service.  Of note, following the Veteran's report of varying blood pressures in service, a January 2010 VA examiner found that a review of STRs did not document any episodes of hypertension.  The 2016 opinion is also consistent with notations in the clinical records that overweight and obese individuals are at risk for hypertension, such as in November 2010.  Furthermore, it is noteworthy that elsewhere in the record, such as in June 2005, at such time as the Veteran was seen by a cardiologist and noted to have hypertension, and also reported herbicide exposure, no such association was suggested by the provider. 

The Board recognizes the Veteran's representative's reference to an article discussing studies showing an increased prevalence of hypertension in veterans exposed to Agent Orange.  That evidence, standing alone, does not address the facts that are specific to this case.  Mattern v. West, 12 Vet. App. 222, 228 (1999).  Thus, the Board finds the August 2016 medical opinion, particularly when viewed with the record as a whole, to be of significantly greater probative value than the article/ studies the representative has referenced.  More to the point, those studies do not contradict the findings of the VA medical professional who has issued an opinion in this case.  Instead, the studies referenced by the representative show that some veterans who were exposed to herbicides have hypertension, and that there was an increased prevalence in those with the highest exposure to herbicides.  The study does not, however, serve to answer whether this Veteran's hypertension, particularly in the setting of multiple risk factors, was caused by his herbicide exposure in service.  Such general evidence cannot, on its own, establish causation in a particular case.  Mattern, 12 Vet. App. at 228; see also See Sacks v. West, 11 Vet. App. 314 (1998).

The Board also acknowledges the Veteran's lay assertion that his hypertension was caused by service.  The Board certainly does not dispute that the Veteran is competent to report on his symptoms and other matters about which he has personal knowledge, but he is not competent to provide an opinion as to the diagnosis or etiology of his hypertension, because such questions are not within the realm of knowledge of a layperson.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Accordingly, the Veteran's opinions as to the diagnosis and etiology of his hypertension are not competent medical evidence.  Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions.

Also regarding the Veteran's lay assertions, the Board points out that he has provided inconsistent statements regarding his history of hypertension, calling into question the overall reliability of his reporting.  In this regard, the Veteran told a January 2010 VA examiner that he was first treated for hypertension in 2004, but "when he came back from Vietnam in the late 1960s, he was being followed, but was not started until 2004."  However, that assertion is contradicted not only by the clinical evidence, which does not indicate that the Veteran was being followed for blood pressure, but the Veteran's earlier reports during a November 2005 VA examination that "since about 2-3 years ago" he had been told he had borderline high blood pressure and was never diagnosed with any hypertension.  And, as discussed, STRs are silent for episodes of hypertension or any concern that the Veteran may be developing such that he would have been followed, nor was any mention of borderline high blood pressure noted during a March 1981 VA examination.  The Veteran also did not report that he was followed since service for blood pressure during his initial March 2005 private cardiology consultation when he was first diagnosed with hypertension.  Indeed, the Board finds it probative that when the Veteran filed his initial claim for service connection for hypertension in August 2005, he claimed entitlement on a secondary basis only, and not as directly related to service, which weighs against his statements to the January 2010 VA examiner that he had been followed for elevated blood pressure since service.

The Veteran's assertions aside, the evidence does not otherwise support that hypertension manifested in or within one year of service.  As noted, STRs are negative for episodes of hypertension, even considering the blood pressure reading at separation which was slightly elevated at 132/70.  Such a reading does not approach the hypertensive range.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2017) (explaining that, for VA purposes, "hypertension" means diastolic blood pressure of predominantly 90 mm. or greater, and "isolated systolic hypertension" means systolic blood pressure of predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm.).  Furthermore, the Board observes that during a March 1981 VA examination, blood pressure was 118/84, also not hypertensive by VA standards, and VA treatment notes do not otherwise indicate that the Veteran was diagnosed with hypertension until 2005 after a few years of borderline high blood pressure, which was at least 30 years after service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim).  

As a final matter, while the Board previously denied entitlement to service connection for hypertension on a secondary basis in July 2016, and the issue presently before the Board is entitlement to service connection for hypertension on a direct basis, the Board observes that service connection for coronary artery disease has since been established.  Nevertheless, notwithstanding that it is questionable whether the Veteran does actually have CAD, the evidence does not support that hypertension is secondary to CAD, nor has the Veteran so contended.  Indeed, as discussed, the Veteran's hypertension has been diagnosed as essential, and thus, not secondary, as noted by the July 2016 VA examiner.  Furthermore, VA examiners in November 2005 and April 2015, and a private cardiologist in March 2005, identify hypertension as a risk factor for or a contributor to CAD and cardiovascular disease, and not the other way around.  The Veteran has also submitted an article discussing hypertension as a risk factor for other heart problems, including atrial fibrillation.  Thus, the Board finds that additional remand to consider hypertension as secondary to CAD is not warranted.

In short, the preponderance of the probative evidence indicates that the Veteran does not have hypertension that manifested in service, that manifested within one year of his discharge from service, or that is otherwise related to service, to include herbicide exposure therein; therefore, service connection is not warranted on a direct or presumptive basis.

II.  Effective Date

The Veteran seeks an effective date earlier than November 21, 2011, for the receipt of a 60 percent rating for his lumbosacral spine disability. 

Except as otherwise provided, the effective date of an evaluation and award of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.  Unless the law specifically provides otherwise, the effective date of an award based on a claim of entitlement to an increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application for the increase.  38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2017).  The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date.  See 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2017).

The current 60 percent rating for the Veteran's degenerative disc disease of the lumbar spine was awarded based on a July 2012 VA examination during which a VA examiner noted the Veteran to have had incapacitating episodes of at least six weeks duration over the past 12 months.  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). 

The current effective date of November 21, 2011, is the date of receipt of the Veteran's claim of entitlement for a TDIU from which the RO inferred a claim for an increased rating for the lumbar spine disability.  While the Board observes that it does appear that the Veteran did file an earlier claim for an increased rating for his low back condition, claimed as "sciatica," which was received on September 20, 2010, and was pending at the time of receipt of the November 21, 2011, informal TDIU claim, the Board nevertheless finds that an earlier effective date is not warranted because entitlement to a 60 percent rating for the low back disability did not arise prior to November 21, 2011.

In this regard, despite the July 2012 VA examiner's notation on the examination report, the medical evidence does not support six weeks of incapacitating episodes of back pain requiring physician-prescribed bedrest, and the evidence does not otherwise show limitation of motion of the thoracolumbar spine such that a 60 percent rating is otherwise warranted.  Indeed, there is no evidence of any physician-prescribed bedrest, let alone over six weeks of it, during the relevant period prior to November 21, 2011.  While the Veteran reported in June 2012 that he frequently remained in bed partly due to his back pain, he also attributed his remaining in bed to his psychiatric symptoms, and he did not otherwise report that a physician prescribed bed rest for his back.  

The Board also observes that the July 2012 VA examiner who noted at least six weeks of incapacitating episodes also performed other examinations of the Veteran the same date and that, in an addendum a week after the day of the examinations noted that claims file had not arrived in time for the examination, and she did not otherwise indicate any review of medical records or the claim file on the July 2012 VA spine examination report.  Thus, it appears likely that the finding of at least six weeks of incapacitating episodes of IVDS was based on the Veteran's self-report and not on a review of clinical evidence.  Regardless, that finding is not otherwise supported by the record.  

In any event, the Board finds that, notwithstanding that the evidence does not support entitlement to a 60 percent rating on a factual basis from November 21, 2011, neither does it support entitlement to a 60 percent rating prior to that date.  In this regard, even considering evidence dated within one year prior to receipt of the earlier September 2010 increased rating claim, the requirements for a 60 percent rating are not met prior to November 21, 2011.

While VA and private treatment records dating from September 2009 through November 21, 2011, show complaints related to chronic low back pain (primarily pain radiating to the left leg), they are negative for evidence of any physician-prescribed bedrest, or even reports of incapacitating episodes, and they do not otherwise show ankylosis of the spine.  Instead, they are silent for evidence of physician-prescribed bed rest and, where noted with any specificity, with the exception of in February 2011 when range of motion was abnormal but the degree of forward flexion is not clear, range of motion was otherwise described as mildly limited, normal, and/or full, such as was reported in July 2010, December 2010, May 2011, April 2011, and July 2011.   The clinical evidence from September 2009 to November 2011 further shows that, despite complaints of pain radiating to the left leg and, at times, a mildly antalgic gait, and some findings of hypertonic muscles, the Veteran walked without ambulatory aids, was independent in his activities of daily living, and demonstrated a decrease in pain and increased range of motion following pain management treatment.  Parenthetically, the Board also notes that private records show some involvement of the Veteran's left hip muscles, for which the Veteran is not service-connected.  In any event, the relevant clinical records are negative for evidence of incapacitating episodes or limited range of motion even approaching ankylosis to warrant a 60 percent rating prior to November 21, 2011.

The Board also finds probative that in May 2012, at which time the Veteran sought treatment for a stated exacerbation of his low back disability, his thoracolumbar spine forward flexion was limited to no worse than 80 degrees, extension was to 30 degrees, and the Veteran was not prescribed any bedrest.  While not dated during the relevant period prior to November 21, 2011, such evidence is relevant to the nature of the Veteran's low back disability during flare-ups, and such evidence does not support that even during flare-ups or exacerbations of his low back disability, a 60 percent rating would be warranted prior to November 21, 2011.

Regardless, as stated, the effective date for an award of an increased rating is generally the date of claim or the date entitlement arose, whichever is later.  Here, while the Veteran did file an earlier claim for an increased rating for his low back disability in September 2010, entitlement to a 60 percent rating for degenerative did not arise prior to November 21, 2011.  Thus, the later date that entitlement arose controls here, and an effective date prior to November 21, 2011, for the award of a 60 percent rating for degenerative disc disease of the lumbar spine is not warranted.  Accordingly, the appeal is denied.  




ORDER

Service connection for renal cysts is denied.

Service connection for hypertension is denied.

An effective date earlier than November 21, 2011, for the award of a 60 percent rating for degenerative disc disease of the lumbar spine is denied.


REMAND

While further delay is regrettable, in light of the Court's memorandum decision, the Board finds that remand is necessary prior to adjudication of the PTSD and bilateral lower extremity increased rating claims remaining on appeal.

Regarding entitlement to an increased rating for PTSD, a new examination is necessary to determine whether the Veteran's alcoholism is secondary to PTSD, consistent with the Court's finding in the memorandum decision, and to address the current severity of his disability, given that it has been nearly six years since the Veteran was last evaluated.

Regarding the increased rating for bilateral lower extremity neuropathy, a new examination is necessary to distinguish, to the extent possible, left lower extremity symptoms related to peripheral neuropathy versus sciatica, also consistent with the Court's finding in the memorandum decision.  Furthermore, a new examination is necessary to determine the current severity of the right lower extremity neuropathy.  Although the Court, in the memorandum decision, did not find error in the Board's analysis as it relates to the denial of the right lower extremity peripheral neuropathy increased rating claim, it nevertheless, inexplicably, vacated and remanded the increased rating appeal as it relates to the "bilateral lower extremity."  Thus, an examination to address the current severity of peripheral neuropathy of both the right and left lower extremities is necessary, as those disabilities have not been evaluated in nearly six years.

Finally, regarding the issues of entitlement to effective dates earlier than November 21, 2011, for the awards of TDIU and entitlement to DEA benefits, as decisions on the increased rating claims remanded herein may impact a decision on those issues, they are inextricably intertwined with those increased ratings claims.  Thus, they must also be remanded.  See Harris v. Derwisnksi, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter).

Updated VA and private treatment records should also be obtained.  38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify any private medical providers who have recently treated him for PTSD or his bilateral lower extremity neurological disability.  After securing any necessary releases, the AOJ should request any relevant records.  If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 

2.  Obtain VA treatment records dating from April 2017 to the present.  If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such.

3. Then, schedule the Veteran for a VA examination to determine the severity of his PTSD.  The claims file must be sent to the examiner for review.

The examiner is advised that the severity of the PTSD should be evaluated under the criteria of the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The examiner should also assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD, and explain the significance of the score.

In rendering this evaluation, the examiner should note that the DSM-IV, not the DSM-V, applies to the Veteran's claim, and that an opinion that the DSM-V is currently used for psychiatric evaluation is not sufficient to satisfy this request.  

The examiner should offer an opinion as to whether the Veteran has an alcohol use/abuse disorder that is secondary to or a symptom of his PTSD.  Please explain why or why not.

If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

4.  Schedule the Veteran for a neurologic examination to determine the current severity of his left and right lower extremity disabilities.  The claims file must be sent to the examiner for review.  

All tests and studies deemed necessary should be accomplished, and all clinical findings should be reported.  The examiner should report all signs and symptoms of the Veteran's left lower extremity radiculopathy, left lower extremity neuropathy, and right lower extremity neuropathy, and associated functional impairment.

In particular, the examiner should opine as to whether it is possible to differentiate the symptoms attributable to radiculopathy/sciatica versus peripheral neuropathy of the left lower extremity and, if so, identify symptoms attributable to each.

A rationale for any opinions expressed should be set forth.  If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

5.  After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the remaining claims on appeal.  If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order.

The appellant 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