Citation Nr: 1821375 Decision Date: 04/09/18 Archive Date: 04/19/18 DOCKET NO. 16-39 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 60 percent for the service-connected coronary artery disease. 2. Entitlement to an initial disability evaluation in excess of 20 percent for the service-connected diabetes mellitus. 3. Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected right upper extremity peripheral neuropathy. 4. Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected left upper extremity peripheral neuropathy. 5. Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected right lower extremity peripheral neuropathy. 6. Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected left lower extremity peripheral neuropathy. 7. Entitlement to an initial compensable disability evaluation for the service-connected diabetic nephropathy. 8. Entitlement to an initial compensable disability evaluation for the service-connected hypertension. 9. Entitlement to an initial compensable disability evaluation for the service-connected erectile dysfunction. 10. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. 11. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder and depression claimed as secondary to service-connected disability. 12. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran served on active duty from September 1965 to September 1968, to include service in Vietnam from September 1966 to August 1967. The Veteran died in January 2018. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida in June 2012, and January 2014. Unfortunately, the Veteran died in January 2018, while his claims were still pending. That same month, the appellant filed a formal claim for dependency and indemnity (DIC) and accrued benefits (VA Form 21-534EZ). She also submitted a VA Form 21-0847 (request for substitution) in January 2018. In a March 2018 rating decision, the appellant was awarded service connection for the cause of the Veteran's death (lung cancer). Later that month, the Agency of Original Jurisdiction (AOJ) notified the appellant that her request for substitution had been granted. Accordingly, the appellant has been substituted for the Veteran with respect to the claims listed on the title page, as they were pending at the time of his death. See Reliford v. McDonald, 27 Vet. App. 297, 302 (2015). Additionally, 38 U.S.C. § 5121A provides "those eligible for accrued benefits with the opportunity to procedurally be substituted for deceased claimants in pending claims, enabling the surviving accrued-benefits beneficiary to proceed in the place of the deceased claimant to the completion of the original claim". Therefore, the appellant will be substituted for the Veteran for purposes of the current appeal before the Board. As the Veteran disagreed with the initial rating assigned following the award of service connection for coronary artery disease, diabetes mellitus, peripheral neuropathy of all four extremities, diabetic nephropathy, hypertension and erectile dysfunction, the Board has characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). The appellant, having been substituted for the Veteran, is, in effect, asking for a higher rating effective from the date service connection was granted. Thus, the entire time period in question is on appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, while the Veteran claimed entitlement to service connection for posttraumatic stress disorder (PTSD) and depression secondary to service-connected disability, the issue on appeal encompasses a psychiatric disorder however diagnosed. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case must take into account the existence of this electronic record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A determination has been made that additional development is necessary with respect to all of the various issues on appeal. As noted above, the appellant has been substituted for the Veteran as stated in the March 2018 determination by the AOJ. Her substitution in place of the Veteran for the purpose of adjudication of his claims on appeal allows for additional submission of evidence and additional development. Thus, the record is not closed and may be further developed (unlike the closed record relied upon in traditional accrued benefits appeals). Accordingly, further appellate consideration will be deferred and this case remanded for action as described below. Review of the evidence of record reveals that the Veteran was evaluated by a VA mental health social worker in March 2012. However, the associated report has not been included in the evidence of record. In addition, an August 2013 note written by that same social worker states that the Veteran had been in receipt of treatment for posttraumatic stress disorder (PTSD) at two different Vet Centers after a referral in March 2012, but no Vet Center records have been included in the claims file. Review of the claims file also reveals that no VA treatment records dated after July 15, 2016 have been included in the evidence of record. In addition, VA treatment records dated between December 2000 and July 2012 have not been included in the evidence of record. Because such Vet Center and VA treatment records could reflect the etiology, onset date, extent and severity of the various claimed disabilities and conditions, VA is, therefore, on notice of records that may be probative to the claims on appeal. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, on remand, all Vet Center records from March 2012 onward and all VA records dated from December 2000 to July 2012, and from July 2016 to January 2018, must be obtained and associated with the claims file. While the case is in remand status, the originating agency should also obtain any other outstanding records pertinent to the Veteran's claims. As noted above, the AOJ granted service connection for the cause of the Veteran's death (lung cancer) in a rating decision issued in March 2018. However, the AOJ has not analyzed the appellant's service connection claims with consideration of a theory of secondary service connection vis-à-vis the lung cancer, to include by way of aggravation. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir 2000); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (Both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim). Judicial interpretation of the matter of secondary service connection as embodied in 38 C.F.R. § 3.310 requires consideration of whether the service-connected disability either causes or aggravates another condition. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (when aggravation of a non-service-connected condition is proximately due to or the result of a service-connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). The AOJ has not yet discussed the theory of secondary service connection due to lung cancer, to include by way of aggravation. This theory of service connection must be addressed on remand, as well as all other applicable theories. Finally, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the claims for increased ratings and service connection on appeal because a hypothetical grant of any such increased rating or service connection claim could significantly change the adjudication of the TDIU issue. Such a grant could increase the Veteran's overall combined disability percentage, and the appellant contends that the appealed conditions contributed to the Veteran's inability to secure substantially gainful employment. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Consideration of entitlement to TDIU must therefore be deferred until the intertwined issues are resolved. In addition, the evidence of record does not contain an employment history for the Veteran and one should be obtained from the appellant while the case is in remand status. These considerations require the gathering of medical records and further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Appeals for Veterans Claims has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Therefore, to ensure that VA has met its duty to assist in developing the facts pertinent to the claims on appeal and to afford full procedural due process, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Assure that all notification and development action required by 38 U.S.C. §§ 5102, 5103, and 5103A and the implementing regulations found at 38 C.F.R. § 3.159 has been completed. 2. Contact the appellant and obtain the names and addresses of all medical care providers (private, VA, or other government) who treated the Veteran for any one of his service-connected disabilities since August 2011. After securing the necessary release(s), obtain such records. In particular, VA treatment records dated between December 2000 and July 2012, and from July 2016 to January 2018, must be obtained. In addition, all Vet Center records (Ocala and Pasco) must be obtained. 3. To the extent an attempt to obtain any of these records is unsuccessful, the claims file must contain documentation of the attempts made. The appellant and her attorney must also be informed of the negative results and be given opportunity to secure the records. 4. Contact the appellant and obtain an employment history for the Veteran. 5. Obtain a medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran had a psychiatric disorder that was either (a) related to some incident of his active duty, to include his service in Vietnam; or (b) was caused by any service-connected disability, whether singly or in combination; or (c) was aggravated by any service-connected disability, whether singly or in combination. 6. Obtain a medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was either (a) caused by any service-connected disability, whether singly or in combination, to include lung cancer; or (b) was aggravated by any service-connected disability, whether singly or in combination, to include lung cancer. 7. Then, reconsider the issues on appeal. The reconsideration must reflect consideration of all the evidence of record and be accomplished with application of all appropriate laws and regulations, to include 38 C.F.R. § 3.310 and Hart v. Mansfield, 21 Vet. App. 505 (2007). If any benefit sought on appeal remains denied, provide the appellant and her attorney with a Supplemental Statement of the Case (SSOC) and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).