Citation Nr: 19168317 Decision Date: 09/05/19 Archive Date: 09/04/19 DOCKET NO. 18-13 111 DATE: September 5, 2019 ORDER Entitlement to a restoration of a 40 percent disability rating for a left ankle disability status post distal fibula and malleolus fracture effective April 1, 2017, is denied. A 20 percent disability rating, but not higher, for a left ankle disability status post distal fibula and malleolus fracture is granted effective April 1, 2017, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for a cervical spine disability, to include as due to a medically explained chronic multi-symptom illness, is remanded. Entitlement to service connection for a medically explained chronic multi-symptom illness, claimed as chronic fatigue syndrome and to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for sleep apnea, to include as due to a medically explained chronic multi-symptom illness and as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REFERRED The issues of entitlement to increased ratings for the lumbar spine and right knee disabilities and PTSD were raised in an October 2018 statement and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. In a January 2017 rating decision, a RO reduced the disability rating for the left ankle disability from 40 percent disabling to 10 percent disabling effective April 1, 2017. 2. At the time of the reduction in the assigned disability rating from 40 to 10 percent on April 1, 2017, the weight of the evidence demonstrated a material improvement in the severity of the Veteran’s service-connected left ankle disability had actually occurred and that any such improvement would be maintained under ordinary conditions of life. 3. The evidence is in equipoise as to whether the Veteran has a malunion of the left fibula with a moderate ankle disability since April 1, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to a restoration of a 40 percent disability rating for the left ankle disability status post distal fibula and malleolus fracture effective April 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 4.1, 4.2, 4.10, 4.71a, Diagnostic Code 5270 (2018). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 20 percent disability rating for the left ankle disability status post distal fibula and malleolus fracture effective April 1, 2017, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5262 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1980 to August 2000, to include service in the Southwest Asia theater of operations during the Persian Gulf War. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from June 2015 (denial of service connection for chronic fatigue syndrome), July 2015 (denial of service connection for degenerative disc disease of the cervical spine), October 2016 (denial of TDIU), January 2017 (reduction of rating for left ankle disability), and July 2017 (denial of service connection for sleep apnea) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a November 13, 2018, correspondence, the RO informed the Veteran and his counsel that his appeal has been certified to the Board. In a November 20, 2018, correspondence to the Board, the counsel requested the full 90-day period since the November 13, 2018, letter to submit additional evidence. That 90-day period has expired. While the RO has adjudicated a claim for service connection for chronic fatigue syndrome, the counsel in an April 2019 statement argued that if the disorder is not chronic fatigue syndrome, then the disorder is another medically explained chronic multi-symptom illness under 38 C.F.R. § 3.317 (2018). The counsel also argued that the cervical spine disability is a medically explained chronic multi-symptom illness under 38 C.F.R. § 3.317. In the January 2017 rating decision, a RO reduced the disability rating for the left ankle disability from 40 percent disabling to 10 percent disabling effective April 1, 2017. In May 2017, the Veteran filed a timely notice of disagreement with not only the reduction but also the assignment of the 10 percent disability rating. As such, both the reduction issue and the increased rating issue are before the Board at this time. Since a statement of the case on the issues of a reduction and increased rating for the left ankle disability was issued in January 2018, the RO obtained additional VA treatment records. Those treatment records are not pertinent to these issues because the records do not pertain to treatment of the left ankle disability. Therefore, a waiver of consideration by the AOJ is unnecessary. 38 C.F.R. § 20.1304 (2018). VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his counsel has raised any issues with the duty to notify or duty to assist except for the Veteran in an April 2017 statement arguing that an October 2016 VA examination was less thorough than a December 2013 VA examination. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In his April 2017 statement, the Veteran argued that the October 2016 VA examination was less thorough than the one in 2013 because the results of the October 2016 VA examination were inconsistent with his current condition and gave a false impression of some improvement. The counsel, however, has not argued that the examination was inadequate. The Board finds that the October 2026 VA examination, in total, is adequate to satisfy VA's duty to assist in that it was based on a thorough review of the record, consideration of the Veteran's contentions, and contained sufficient findings to rate the service-connected disability. 1. Entitlement to a restoration of a 40 percent disability rating for a left ankle disability status post distal fibula and malleolus fracture effective April 1, 2017 2. Entitlement to a disability rating in excess of 10 percent for a left ankle disability status post distal fibula and malleolus fracture since April 1, 2017 Governing law and regulations Ratings reductions The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a veteran’s disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability. Schafrath, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (2018). The provisions of 38 C.F.R. § 3.344(c), however, specify that the provisions of 38 C.F.R. § 3.344(a) and (b) are only applicable for ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. In a November 2000 rating decision, a RO granted service connection for a left ankle disability effective September 1, 2000, and assigned a zero percent disability rating effective that same date. In a March 2014 rating decision, a RO assigned a 40 percent disability rating for the left ankle disability effective June 17, 2013, under Diagnostic Code 5270. The effective date of the reduction is April 1, 2017. Therefore, the greater protections, set forth in 38 C.F.R. § 3.344, do not apply in this case because the 40 percent disability rating for the left ankle disability was not in effect for five or more years at the time of the reduction on April 1, 2017. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). Increased rating Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant’s favor. 38 C.F.R. § 4.3. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran’s relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2018). Standard motion of an ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2018). Ten and 20 percent evaluations are warranted for moderate and marked limited motion of the ankle, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2018). A 30 percent disability rating is warranted for ankylosis in plantar flexion that is between 30 degrees and 40 degrees or for ankylosis in dorsiflexion between zero degrees and 10 degrees. A 40 percent rating for ankylosis of the ankle requires (1) ankylosis in plantar flexion that is more than 40 degrees, or (2) ankylosis in dorsiflexion that is either more than 10 degrees or with an abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2018). A 40 percent disability rating is warranted for nonunion of the tibia and fibula, with loose motion and a brace. For a malunion of the tibia and fibula, 30, 20, and 10 percent disability ratings are warranted for marked, moderate, and slight knee or ankle disabilities, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Analysis Reduction In an October 11, 2016, letter, the Veteran was informed of a proposed reduction in the rating assigned to the left ankle disability. He was afforded 60 days to respond. Thereafter, the RO promulgated a rating decision in January 2017, implementing the proposed reduction, effective from April 1, 2017. The RO properly applied the regulations regarding the procedure for notification of reductions in ratings. The decision to reduce the Veteran’s disability rating was based on the report of the October 2016 VA examination. The examiner noted that there was no ankylosis. Physical examination showed some range of motion in the left ankle. Previously, a December 2013 VA examiner noted that the Veteran had ankylosis in dorsiflexion between zero and 10 degrees and with abduction, adduction, inversion, or eversion deformity. The range-of-motion testing at the December 2013 VA examination, however, revealed five degrees of dorsiflexion and 30 degrees of plantar flexion in the left ankle. In the April 2017 statement, the Veteran argued that there was no actual improvement in his left ankle. He noted that he still had pain, swelling, and an inability to walk, stand, or knee for extended periods of time. The Board places great weight on the findings in the October 2016 VA examination report showing no ankylosis. Based on the October 2016 VA examination report, the weight of the evidence demonstrated a material improvement in the severity of the Veteran’s service-connected left ankle disability had actually occurred and that any such improvement would be maintained under ordinary conditions of life. In other words, there is of record no evidence that would justify the maintenance of the assigned 40 percent rating under Diagnostic Code 5270. Accordingly, the reduction from 40 percent effective April 1, 2017, was warranted based on the evidence of record. Having found that the 40 percent was no longer warranted, the Board will separately address whether the Veteran’s disability was more appropriately reduced to 30, 20, or 10 percent. In the absence of evidence of ankylosis, consideration of whether a 30 percent disability rating under Diagnostic Code 5270 is not warranted. The RO assigned a 10 percent disability rating under Diagnostic Code 5003-5271. The October 2016 VA examination report reflects diagnoses of osteoarthritis of the left ankle and a distal fibula and malleolus fracture. VA X-rays of the left ankle taken in December 2013 show that the fracture was healed. The November 2000 rating decision shows that service connection was granted for a left ankle disability based on an in-service fracture of the left medial malleolus and distal fibula. Given that the Veteran had a fibula fracture, the Board will consider whether a disability rating is warranted under Diagnostic Code 5262. The October 2016 VA examination report reveals that dorsiflexion was to 10 degrees and that plantar flexion was to 35 degrees. After repetitive-use testing with at least three repetitions, dorsiflexion was to 5 degrees and plantar flexion was to 30 degrees. The examiner noted the following additional factors contributing to disability – instability of station, disturbance of locomotion, and interference with standing. The examiner indicated that the Veteran occasionally used a brace and cane. The examiner added that the functional impact on occupational tasks is that the left ankle disability affects kneeling or prolonged weight bearing. Given the limitation of motion of the left ankle after repetitive-use testing and the history of a fibula fracture, the evidence is in equipoise as to whether the Veteran has a malunion of the left fibula with a moderate ankle disability since April 1, 2017. Twenty percent is the maximum disability rating under Diagnostic Code 5271. Therefore, the Veteran cannot receive a higher rating based on limitation of motion alone. As to whether a higher rating is warranted under Diagnostic Code 5262, there is no evidence of a nonunion of the left fibula with loose motion and requiring a brace, which would warrant a 40 percent disability rating. Though the October 2016 VA examiner noted that the Veteran occasionally used a brace, the December 2013 X-rays of the ankle showed a healed fibula. The October 2016 VA examination report reveals that after repetitive-use testing with at least three repetitions, dorsiflexion was still to 5 degrees and plantar flexion was still to 30 degrees, which was a total limitation of motion of 30 degrees out of 65 degrees normal range of motion. The only factor causing that functional loss was pain. The Veteran denied any flares-ups at that examination. Thus, the weight of evidence shows that there is not a marked ankle disability. As to the holding in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2018), the examiner noted the following additional factors contributing to disability – instability of station, disturbance of locomotion, and interference with standing. The examiner added that the functional impact on occupational tasks is that the left ankle disability affects kneeling or prolonged weight bearing. Even with consideration of this functional limitation, the weight of evidence still shows that there is not a marked ankle disability. Accordingly, the weight of evidence is against a finding that the left ankle disability since April 1, 2017, has been manifested by a nonunion of the fibula or a malunion of the fibula with a marked ankle disability. REASONS FOR REMAND In the April 2019 statement, the counsel argued that the cervical spine disability is a medically unexplained chronic multi-symptom illness under 38 C.F.R. §§ 3.317. In Stewart v. Wilkie, 30 Vet. App. 383 (2018), the United States Court of Appeals for Veterans Claims (the Court) held: 1) an illness is a medically unexplained chronic multi-symptom illness when either the etiology or pathophysiology of the illness is inconclusive, 2) a multi-symptom illness is not a medically unexplained chronic multi-symptom illness if both the etiology and the pathophysiology of the illness are partially understood, and 3) that the inquiry as to the etiology and pathophysiology must be based on the individual veteran’s circumstances. A February 2018 VA examiner did not diagnose chronic fatigue syndrome. The examiner, however, did note the presence of various symptoms, to include sleep disturbance and several symptoms of cognitive impairment. In regard to the sleep symptom, the examiner noted that sleep apnea had been diagnosed. The Board also notes that service connection is in effect for PTSD. In the April 2019 statement, the counsel argued that if the Veteran does not have chronic fatigue syndrome, then he instead has a medically unexplained chronic multi-symptom illness manifested by the various symptoms noted by the VA examiner. Given the counsel’s argument and the diagnoses of sleep apnea and PTSD, another VA examination is necessary to determine whether the Veteran has chronic fatigue syndrome, whether he has another medically unexplained chronic multi-symptom illness, and whether any of his symptoms are attributable to sleep apnea and PTSD. The RO should obtain any additional records from the Orlando VA Medical Center and affiliated community-based outpatient clinics and outpatient clinics from November 2018 to the present. In September 2016, the Social Security Administration noted that there was no Title II or Title XVI data found. Given the Veteran had only been unemployed for a few months at the time of that reporting three years ago, the RO should ask him whether he has applied for Social Security disability benefits and, if so, obtain records from that agency. The Veteran was last examined for PTSD in 2014 and for his lumbar spine and right knee disabilities in June 2016. As the Veteran has asserted in the October 2018 statement that these disabilities have worsened since he stopped working in July 2016, new VA examinations addressing functional impairments from these disabilities are necessary. The Veteran stopped working in late July 2016. The Veteran is service-connected for the following disabilities: PTSD, right knee disability, tinnitus, lumbar spine disability, left ankle disability, right middle finger disability, left ankle scar, and left ear hearing loss. Prior to April 1, 2017, the service-connected disabilities were rated 70 percent disabling, with the orthopedic disabilities affecting a single body system and being rated 60 percent disabling. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) (2018) prior to April 1, 2017. Even with the assignment of a 20 percent disability rating for the left ankle disability effective April 1, 2017, the service-connected disabilities are still rated as 60 percent disabling effective April 1, 2017, with no disability being 60 percent disabling under 38 C.F.R. § 4.16(a) . In an August 2016 statement, a condominium management company confirmed the Veteran’s employment as a maintenance worker from 2001 to 2016. The company reported that the Veteran was terminated from employment for an inability to perform job duties due to limitations caused by medical conditions. In a November 2018 statement, a former long-time supervisor reported that the Veteran missed work once a week due to medical appointments and that he became very slow in completing tasks due to his physical limitations during the last few months of her supervision. The supervisor said that because of her friendship with the Veteran, she was very lenient in allowing him to miss work and to take more time to complete tasks. She noted that due to a change in management companies, she was not the Veteran’s supervisor when he stopped working. Given the evidence of employment impairment due to the service-connected orthopedic disabilities, the RO should refer the Veteran’s claim of entitlement to TDIU to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating since April 1, 2017. 38 C.F.R. § 4.16(b) (2018). In a July 2017 rating decision, a RO denied service connection for sleep apnea, to include as secondary to PTSD. In January 2018, the counsel filed a timely notice of disagreement with that denial. A statement of the case has not yet been issued. This issue is inextricably intertwined with the issue of entitlement to TDIU. Harris v. Derwinski, 1 Vet. App. 180 (1991). A remand is required for the RO to issue a statement of the case. 38 C.F.R. § 20.200 (2018); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for chronic fatigue syndrome, sleep apnea, his cervical spine disability, his lumbar spine disability, his right knee disability, his left ankle disability, PTSD, and any other disability related to his TDIU claim, and obtain any identified records. Obtain the Veteran’s VA treatment records from the Orlando VA Medical Center and affiliated community-based outpatient clinics and outpatient clinics for the period from November 2018 to the present. 2. Ask the Veteran whether he has applied for Social Security disability benefits. If he has, obtain the Veteran’s federal records from Social Security Administration regarding his claim for disability benefits. Document all requests for information as well as all responses in the claims file. 3. After the development in 1 and 2 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. 4. After the development in 1 and 2 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cervical spine disability and the current severities of the lumbar spine and right knee disabilities. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine and right knee disabilities alone and discuss the effect of the Veteran’s lumbar spine and right knee disabilities on any occupational functioning and activities of daily living. The examiner must opine on whether it is at least as likely as not that any current cervical spine disability is related to an in-service injury, event, or disease, including in-service neck pain in February 1981 and exposure to environmental hazards during service in the Persian Gulf region. The examiner must opine on whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current cervical spine disability has an inconclusive etiology. The examiner must opine on whether it is more likely than not (greater than 50 percent probability) that the Veteran’s current cervical spine disability results from a partially understood etiology. The examiner must opine on whether it is more likely than not (greater than 50 percent probability) that the Veteran’s current cervical spine disability results from a known etiology. The examiner should provide detailed rationale and citation to evidence that are particular to the Veteran’s circumstances. The examiner must opine on whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current cervical spine disability has an inconclusive pathophysiology. The examiner must opine on whether it is more likely than not (greater than 50 percent probability) that the Veteran’s current cervical spine disability has a partially explained pathophysiology. The examiner must opine on whether it is more likely than not (greater than 50 percent probability) that the Veteran’s current cervical spine disability has a fully understood pathophysiology. The examiner should provide detailed rationale and citation to evidence that are particular to the Veteran’s circumstances. 5. After the development in 1 and 2 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the natures and etiologies of any fatigue, headaches, sleep disturbance, and cognitive impairments. The examiner should offer an opinion as to the etiologies of fatigue, headaches, sleep disturbance, and cognitive impairments to include commenting on whether these symptoms are attributable to a known clinical diagnosis, such as chronic fatigue syndrome, sleep apnea, and PTSD. If that examiner cannot identify a disease or disability that causes the reported symptoms, the examiner should so state. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has chronic fatigue syndrome. If a disease or disability other than chronic fatigue syndrome, sleep apnea, or PTSD is identified regarding fatigue, headaches, sleep disturbance, and cognitive impairments, the examiner should specifically opine on whether it is at least as likely as not (50 percent or greater probability) that such a disease or disability is related to an in-service injury, event, or disease, including exposure to environmental hazards during service in the Persian Gulf region. If a disease or disability other than chronic fatigue syndrome, sleep apnea, or PTSD is identified regarding fatigue, headaches, sleep disturbance, and cognitive impairments, the examiner must opine on whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current disease or disability has an inconclusive etiology. The examiner must opine on whether it is more likely than not (greater than 50 percent probability) that the Veteran’s current disease or disability results from a partially understood etiology. The examiner must opine on whether it is more likely than not (greater than 50 percent probability) that the Veteran’s current disease or disability results from a known etiology. The examiner should provide detailed rationale and citation to evidence that are particular to the Veteran’s circumstances. If a disease or disability other than chronic fatigue syndrome, sleep apnea, or PTSD is identified regarding fatigue, headaches, sleep disturbance, and cognitive impairments, the examiner must opine on whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s disease or disability has an inconclusive pathophysiology. The examiner must opine on whether it is more likely than not (greater than 50 percent probability) that the Veteran’s disease or disability has a partially explained pathophysiology. The examiner must opine on whether it is more likely than not (greater than 50 percent probability) that the Veteran’s disease or disability has a fully understood pathophysiology. The examiner should provide detailed rationale and citation to evidence that are particular to the Veteran’s circumstances. 6. After the development in 1 through 4 is completed, the AOJ should take any additional development necessary before adjudicating the claim for TDIU, to include referring the claim of entitlement to TDIU since April 1, 2017, to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating, if applicable. 7. Send the Veteran and his counsel a statement of the case that addresses the issue of entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 8. Thereafter, readjudicate the claims on appeal. If any benefit sought in connection with the claims remains denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC), with a copy to his counsel, and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.