Citation Nr: 20004857 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 17-21 692 DATE: January 22, 2020 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a heart disability, claimed as enlarged heart, to include as secondary to posttraumatic stress disorder with unspecified depressive disorder (hereinafter PTSD) is remanded. Entitlement to an increased initial rating for PTSD, currently rated as 50 percent disabling prior to August 1, 2017 and 70 percent disabling thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Marine Corps from June 1982 to June 1985. He was awarded a Combat Action Ribbon, among other decorations. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). On his April 2017 substantive appeal, the Veteran requested a Travel Board hearing. However, in an October 2019 statement, he withdrew that request. See 38 C.F.R. § 20.702(e). On his March 2016 notice of disagreement and a March 2019 VA Form 21-8940, the Veteran expressly raised the issue of entitlement to a TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The record indicates that the Veteran has been unemployed during the appeal period. Accordingly, the Board finds that a TDIU claim is part and parcel of the current appeal, and that issue has been added to the cover page. The Board notes that the Veteran filed notice of disagreements (NOD) at the RO concerning the issues of entitlement to service connection for hypertension, cervical strain, hyperlipidemia, headaches, bilateral knee disabilities, sleep apnea, insomnia, neurobehavioral effects of exposure to contaminants at Camp Lejeune, fatigue, peripheral neuropathy of the bilateral lower extremities, muscle weakness, and a neuropsychiatric disorder; as well as entitlement to special monthly compensation based on the need for aid and attendance as shown in the electronic claims file. Such appeals are contained in the VACOLS appeals tracking system as active appeals at the RO. While the Board is cognizant of the United States Court of Appeals for Veterans Claims (Court) decision in Manlincon v. West, 12 Vet. App. 238 (1999), in this case, unlike in Manlincon, the RO has fully acknowledged the NODs and is currently in the process of adjudicating the appeals. Action by the Board at this time may serve to delay the RO’s action on the appeals. As such, no action will be taken by the Board at this time, and those issues will be the subject of a later Board decision, if ultimately necessary. 1. Entitlement to service connection for a lumbar spine disability is remanded. 2. Entitlement to service connection for a right hip disability is remanded. 3. Entitlement to service connection for a left hip disability is remanded. 4. Entitlement to service connection for a heart disability, claimed as enlarged heart, to include as secondary to PTSD is remanded. 5. Entitlement to an increase initial rating for PTSD, rated 50 percent disabling prior to August 1, 2017 and 70 percent disabling thereafter, is remanded. 6. Entitlement to a TDIU is remanded. The evidence indicates there may be outstanding relevant VA treatment records. VA treatment records indicate that the Veteran received fee basis chiropractic care from Putty Chiropractic Center for, inter alia, back pain. Additionally, VA record entries from August 1, 2013, August 29, 2013, December 8, 2014, April 5, 2017, May 14, 2015, August 25, 2017, September 9, 2017, September 23, 2017, October 17, 2017, October 23, 2017, November 9, 2017 November 17, 2017, December 13, 2017, December 15, 2017, January 2, 2018, January 19, 2018, February 15, 2018, February 28, 2018, March 12, 2018, April 23, 2018, May 4, 2018, May 16, 2018, May 17, 2018, May 20, 2018, May 23, 2018, June 5, 2018, June 12, 2018, June 19, 2018, July 2, 2018, July 10, 2018, July 12, 2018, July 16, 2018, July 23, 2018, July 25, 2018, August 5, 2018, August 6, 2018, August 16, 2018, August 17, 2018, August 29, 2018, August 31, 2018, September 4, 2018, September 5, 2018, September 10, 2018, September 12, 2018, September 18, 2018, September 20, 2018, October 3, 2018, October 9, 2018, October 24, 2018, October 29, 2018, October 31, 2018, November 3, 2018, November 5, 2018, November 17, 2018, November 20, 2018, December 7, 2018, December 12, 2018, December 17, 2018, December 20, 2018, January 8, 2019, January 11, 2019, January 24, 2019, February 22, 2019, February 23, 2019, April 4, 2019, May 13, 2019, May 22, 2019, May 29, 2019, June 4, 2019, June 19, 2019, June 24, 2019, July 1, 2019, July 3, 2019, July 8, 2019, July 16, 2019, July 17, 2019, July 23, 2019, August 12, 2019, August 23, 2019, August 24, 2019, August 28, 2019, August 30, 2019, August 31, 2019, September 4, 2019, September 9, 2019, September 12, 2019, September 17, 2019, September 24, 2019, October 2, 2019, and December 11, 2019 indicate that fee basis chiropractic records, radiology records, and non-VA medical records had been scanned into VistA Imaging. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. The record indicates that there are outstanding private treatment records. Treatment records from December 20, 2004, May 9, 2012, and March 17, 2016 indicate that the Veteran had an outside primary care provider, Dr. Anderson. While the Veteran’s representative submitted excerpts of treatment records from this provider, it does not appear that complete treatment records have been requested or otherwise obtained. Additionally, a March 22, 2018 VA treatment record indicates that the Veteran was treated by an outside cardiologist, Dr. Hall. To date, these records have not been requested or otherwise obtained. On remand, reasonable efforts should be made to obtain them. The record also reflects that the Veteran was granted Social Security Administration (SSA) disability benefits. Specifically, the September 2017 PTSD examination report indicates that the Veteran was granted SSA disability benefits in 2012 due to physical and psychological disabilities. While the Veteran’s representative submitted excerpts of SSA records, it does not appear that the Veteran’s complete SSA records have been requested or otherwise associated with the claims file. Accordingly, such records should be requested on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103 when ‘there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits’). To date, the Veteran has not been provided VA examinations to address his lumbar spine and hip claims. VA treatment records note the Veteran’s reports of ongoing back and hip pain. The Veteran asserts that his lumbar spine and hip pain is “from humping with all that gear.” His DD Form 214 indicates that the Veteran’s military occupational specialty was as a rifleman and that he was awarded a Combat Action Ribbon. Additionally, a February 20, 1983 service treatment record indicates that the Veteran reported right thigh and groin pain after a “12 mile hump.” Accordingly, the Board cannot make a fully-informed decision on the issues because no VA examiner has opined whether the Veteran’s back and hip pain are related to service. The Veteran was provided a VA heart examination in July 2016. The examiner opined that the Veteran’s heart disability, diagnosed as left ventricular hypertrophy, and “biatrial dilation,” was less likely than not proximately due to or the result of the Veteran's PTSD. The examiner stated that the Veteran’s enlarged heart was most likely related to a congenital condition and his hypertension as there was no documentation to suggest that the Veteran’s enlarged heart was caused by or aggravated by his PTSD. Nevertheless, the examiner did not acknowledge or address the November 23, 2015 and November 24, 2015 VA treatment records noting that the Veteran’s chest pain was worse with his PTSD and anxiety and that he had worsening PTSD symptoms and associated chest discomfort. Additionally, the examiner did not address whether the Veteran’s left ventricular hypertrophy or biatrial dilation were related to service. In an April 2017 addendum, a VA clinician opined that the Veteran’s heart murmur and cardiac catherization were less likely than not related to service. However, the clinician did not address whether the Veteran’s heart murmur and cardiac catherization were related to his PTSD. Accordingly, an addendum opinion is required. In March 2019, the Veteran submitted a VA Form 21-8940. To date, information from the identified prior employers has not been requested. As such information is relevant to the Veteran's TDIU claim, that information must be requested. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records and add them to the claims file. Additionally, obtain records of fee basis chiropractic, radiology, and non-VA medical care referenced in the following VA record entries, and add them to the claims file: August 1, 2013, August 29, 2013, December 8, 2014, April 5, 2017, May 14, 2015, August 25, 2017, September 9, 2017, September 23, 2017, October 17, 2017, October 23, 2017, November 9, 2017 November 17, 2017, December 13, 2017, December 15, 2017, January 2, 2018, January 19, 2018, February 15, 2018, February 28, 2018, March 12, 2018, April 23, 2018, May 4, 2018, May 16, 2018, May 17, 2018, May 20, 2018, May 23, 2018, June 5, 2018, June 12, 2018, June 19, 2018, July 2, 2018, July 10, 2018, July 12, 2018, July 16, 2018, July 23, 2018, July 25, 2018, August 5, 2018, August 6, 2018, August 16, 2018, August 17, 2018, August 29, 2018, August 31, 2018, September 4, 2018, September 5, 2018, September 10, 2018, September 12, 2018, September 18, 2018, September 20, 2018, October 3, 2018, October 9, 2018, October 24, 2018, October 29, 2018, October 31, 2018, November 3, 2018, November 5, 2018, November 17, 2018, November 20, 2018, December 7, 2018, December 12, 2018, December 17, 2018, December 20, 2018, January 8, 2019, January 11, 2019, January 24, 2019, February 22, 2019, February 23, 2019, April 4, 2019, May 13, 2019, May 22, 2019, May 29, 2019, June 4, 2019, June 19, 2019, June 24, 2019, July 1, 2019, July 3, 2019, July 8, 2019, July 16, 2019, July 17, 2019, July 23, 2019, August 12, 2019, August 23, 2019, August 24, 2019, August 28, 2019, August 30, 2019, August 31, 2019, September 4, 2019, September 9, 2019, September 12, 2019, September 17, 2019, September 24, 2019, October 2, 2019, and December 11, 2019. The aforementioned entries indicate that such records have been scanned into VistA Imaging. If they cannot be obtained from VistA Imaging and added to the claims file, the AOJ should take appropriate action to attempt to reobtain these records from the private care facilities/providers. 2. Ask the Veteran to provide the names and addresses and authorize the release of his treatment records to VA from all medical care providers/facilities who have recently treated him for his claimed disabilities, including Putty Chiropractic Center, Dr. Anderson, and Dr. Hall. After securing any necessary authorization/releases, the AOJ should request any relevant records identified. If any requested records are unavailable, the Veteran should be notified of such. 3. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the application, determination, and all medical records considered in deciding the claim. 4. Request employment information from the employers identified on the March 2019 VA Form 21-8940 and any other employer identified by the Veteran. If additional information is needed from the Veteran to permit the request to be undertaken, the Veteran should be asked to provide such. If the records are not available, the claims file should be annotated to reflect such, and the Veteran notified of such. 5. After records development is completed, the Veteran should be afforded a VA thoracolumbar spine examination to determine the nature of any lumbar spine and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the lumbar spine arose during service or is otherwise related to service, to include the Veteran’s full-gear “humps” and “diving in bunker s and foxholes while getting shot at in Beirut.” A rationale for all opinions expressed should be provided. 6. After records development is completed, the Veteran should be afforded a VA hip examination to determine the nature of any right or left hip disability and to obtain an opinion as to whether such is related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the right or left hip arose during service or is otherwise related to service, to include the Veteran’s full-gear “humps,” his “diving in bunkers and foxholes while getting shot at in Beirut,” and his February 20, 1983 treatment for right thigh and groin pain. A rationale for all opinions expressed should be provided. 7. After the above is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's heart claim. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that any heart disability had its onset during service or is otherwise related to service. (b.) Whether it is at least as likely as not (50 percent probability or greater) that any heart disability was caused by the Veteran’s service-connected PTSD? (c.) If not caused by the service-connected PTSD, is it at least as likely as not that any heart disability is worsened beyond its natural progression (aggravated) by his service-connected PTSD? If the clinician finds that any heart disability was aggravated by his service-connected PTSD, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the heart disability. In so opining, the clinician should address the documented diagnoses including, but not limited to, cardiac murmur, left ventricular hypertrophy, “biatrial dilation,” and cardiac catherization. The clinician should also address the November 23, 2015 and November 24, 2015 VA treatment records noting that the Veteran’s chest pain was worse with his PTSD and anxiety and that he had worsening PTSD symptoms and associated chest discomfort. A complete rationale should be provided for all opinions and conclusions expressed. (Continued on the next page)   8. After completing the above, and conducting any further development deemed necessary in light of the expanded record, readjudicate the Veteran’s claims of entitlement to service connection for a lumbar spine, right hip, left hip, and heart disability, entitlement to a higher initial disability rating for service-connected PTSD, and entitlement to a TDIU. If the Veteran’s claims are not granted in full, send the Veteran and his representative a Supplemental Statement of the Case and allow them appropriate time to respond before returning the appeal to the Board, if otherwise in order. A. SOLOMON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson 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.