Citation Nr: 20007724 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 14-36 036 DATE: January 29, 2020 REMANDED Entitlement to service connection for diabetes is remanded. Entitlement to increased initial ratings for lumbar spine strain, rated as 10 percent disabling prior to August 6, 2013, and 20 percent disabling thereafter, excluding a temporary total rating for convalescence, is remanded. Propriety of the assignment of a separate rating for right lower extremity (RLE) sciatic neuropathy, rated as 20 percent disabling since March 19, 2013, is remanded. Propriety of the assignment of a separate rating for left lower extremity (LLE) sciatic neuropathy, rated as 20 percent disabling since March 19, 2013, is remanded. Propriety of the assignment of a separate rating for RLE femoral neuropathy, rated as 10 percent disabling effective January 16, 2014, and noncompensable from March 12, 2015, is remanded. Propriety of the assignment of a separate rating for LLE femoral neuropathy, rated as 10 percent disabling effective January 16, 2014, and noncompensable from March 12, 2015, is remanded. Entitlement to an initial rating in excess of 20 percent for right shoulder degenerative joint disease (DJD) is remanded. Entitlement to increased initial ratings for status post transurethral resection of the prostate with residual retrograde ejaculation and overactive bladder associated with multiple sclerosis (prostate disability) rated as noncompensable prior to March 26, 2014, 40 percent disabling from March 26, 2014, to February 10, 2016, noncompensable from February 11, 2016, to May 18, 2016, and 10 percent disabling thereafter is remanded. Entitlement to an initial compensable rating for allergic rhinitis is remanded. Entitlement to an effective date prior to October 14, 2014, for the award of service connection for a trauma disorder (including posttraumatic stress disorder (PTSD)), to include on the basis of clear and unmistakable error (CUE) in an April 2012 rating decision that denied service connection for PTSD, is remanded. Entitlement to an effective date prior to September 18, 2014, for the award of a 20 percent disability rating for left shoulder DJD, to include on the basis of CUE in an April 2012 rating decision that assigned an initial noncompensable rating, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period from March 12, 2015, to February 10, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 1984 to January 2011, including multiple deployments in support of Persian Gulf operations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2012 (lumbar spine, bilateral lower extremity (BLE) sciatic neuropathy, right shoulder DJD, prostate disability, and rhinitis), February 2014 (diabetes), April 2015 (left shoulder DJD), April 2016 (trauma disorder), and October 2017 (BLE femoral neuropathy) rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in March 2019, a transcript of which is of record. At the hearing, the Veteran testified that his service-connected disabilities impacted his ability to work and so the issue of entitlement to a TDIU from March 12, 2015, to February 10, 2016, has been added to this appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Regarding the period at issue, the Veteran submitted an application for increased compensation based on unemployability in October 2019 and noted he first became too disabled to work on January 1, 2015, and the only period thereafter that he is not already in receipt of a 100 percent rating is from March 12, 2015, to February 10, 2016. The Board notes that the BLE sciatic neuropathy issues had been referred to during the course of the appeal as claims for earlier effective dates, but have been recharacterized here as entitlement to increased ratings throughout the appeal period related to the lumbar spine. In this regard, 38 C.F.R. § 4.71(a), Diagnostic Codes (DCs) 5242-5243, General Rating Formula for Diseases and Injuries of the Spine, Note (1), holds that neurological manifestations of a spine disability are part and parcel of an increased rating claim for the spine. Here, the Veteran has properly perfected an appeal as to the initial rating assigned for his lumbar spine and, as such, the Board finds the ratings for the BLE sciatic neuropathies were part of that appeal. Similarly, the Board has included the propriety of the ratings assigned for BLE femoral neuropathy of the spine. In a December 2014 submission, the Veteran requested to withdraw his claim for diabetes, but the Agency of Original Jurisdiction (AOJ) addressed the issue in an October 2017 Statement of the Case (SOC) and the Veteran perfected his appeal later that month. As such, the Board finds the Veteran’s withdrawal was not clear and unambiguous and the issue remains on appeal. The Board notes that the issue of entitlement to an increased rating for a hypertrophic scar of the neck was raised in a June 2018 notice of disagreement (NOD), but it has not been addressed in an SOC. Nevertheless, the issue was subsequently addressed in a January 2020 rating decision, which the Veteran has not yet expressed disagreement with and, as such, the Board declines to remand the issue for issuance of an SOC at this time. If the Veteran disagrees with the January 2020 rating decision, he may still express his dissatisfaction to the AOJ, and the appeal period should be linked to the June 2018 rating decision. REFERRED The issue of entitlement to a temporary total rating for convalescence related to cervical spine surgery was raised in a June 2018 NOD form and is referred to the AOJ for adjudication. 1. Entitlement to service connection for diabetes. The Veteran appeared for a VA examination in January 2014 to assess whether he met the diagnostic criteria for a diagnosis of diabetes. Upon examination of the Veteran and a review of his records, the examiner found that the Veteran did not suffer from diabetes. More recently, at the March 2019 Board hearing, the Veteran indicated that he continues to experience symptoms of what he believes to be diabetes including increased thirst and that he has been admonished by his medical providers to regulate his activities to prevent diabetes. He indicated that he believed his symptoms had increased since the January 2014 examination and that he now suffers from diabetes. Thus, the Board finds that a remand is warranted for a new medical examination to determine whether the Veteran currently suffers from diabetes. Additionally, the Board notes that in a November 2016 memorandum, the AOJ seems to indicate that the Veteran’s complete service treatment records (STRs) had not been obtained, but it does not appear from the record that the Veteran was notified of such pursuant to the requirements of 38 C.F.R. § 3.159. Notably, the STRs that are of record are associated in a fashion that makes it difficult for review. Thus, on remand, the AOJ should make additional attempts to obtain and associate the Veteran’s complete STRs with his file and notify him if such is not possible. 2. Entitlement to increased initial ratings for lumbar spine strain, rated as 10 percent disabling prior to August 6, 2013, and 20 percent disabling thereafter, excluding a temporary total rating for convalescence. 3. Propriety of the assignment of a separate rating for RLE sciatic neuropathy, rated as 20 percent disabling since March 19, 2013. 4. Propriety of the assignment of a separate rating for LLE sciatic neuropathy, rated as 20 percent disabling since March 19, 2013. 5. Propriety of the assignment of a separate rating for RLE femoral neuropathy, rated as 10 percent disabling from January 16, 2014, and noncompensable from March 12, 2015. 6. Propriety of the assignment of a separate rating for LLE femoral neuropathy, rated as 10 percent disabling from January 16, 2014, and noncompensable from March 12, 2015. 7. Entitlement to an initial rating in excess of 20 percent for right shoulder DJD. 8. Entitlement to increased initial ratings for a prostate disability rated as noncompensable prior to March 26, 2014, 40 percent disabling from March 26, 2014, to February 10, 2016, noncompensable from February 11, 2016, to May 18, 2016, and 10 percent disabling thereafter. 9. Entitlement to an initial compensable rating for allergic rhinitis. At the March 2019 hearing, the Veteran asserted that his lumbar spine, neurologic disorders, right shoulder, prostate, and rhinitis symptoms had increased in severity since he was last examined by VA. Thus, the Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of these service-connected disabilities. Additionally, the Board notes that the record suggests there may be outstanding private treatment records related to the Veteran’s spine and prostate conditions and that the Veteran may have recently undergone a procedure to have his prostate neurostimulator removed. Thus, on remand, the Veteran should be provided an opportunity to submit authorizations to obtain any outstanding private records and updated VA treatment records should be associated with the file. Relevant to the Veteran’s prostate/bladder rating claim, the Board instructs the AOJ to revisit his ratings and the June 2019 rating decision. The decision is internally inconsistent in advising that a 10 percent rating is warranted for the Veteran’s bladder symptoms effective February 11, 2016, then stating that a noncompensable evaluation is assigned effective February 11, 2016. In this regard, the confusion seems to be in the AOJ’s attempt to make clear that the Veteran’s prostate rating was to include his newly associated bladder symptoms (related to multiple sclerosis), but in stating that the bladder symptoms did not warrant a compensable rating from February 11, 2016, the Veteran’s prostate disorder was erroneously reflected as being noncompensable from February 11, 2016, through May 19, 2016, when he had previously been receiving a 40 percent rating for his prostate during that period and through October 5, 2016. Thus, the AOJ must take corrective action to, at a minimum, reinstate the Veteran’s 40 percent rating for his prostate disorder from February 11, 2016, through May 19, 2016. Similarly, the record indicates that the Veteran has been receiving entitlement to special monthly compensation for loss of use of a creative organ since February 1, 2011, but erectile dysfunction (ED) has not been listed as part of his prostate condition even though a November 2017 VA examiner intimated that the Veteran suffers from ED that was caused by his service-connected prostate condition. While it appears the Veteran has already been receiving compensation for his ED, in reassessing and evaluating the Veteran’s prostate disorder, the AOJ should include his ED as part of the issue on appeal. 10. Entitlement to an effective date prior to October 14, 2014, for the award of service connection for a trauma disorder (including PTSD), to include on the basis of CUE in an April 2012 rating decision that denied service connection for PTSD. 11. Entitlement to an effective date prior to September 18, 2014, for the award of a 20 percent disability rating for left shoulder arthritis, to include on the basis of CUE in an April 2012 rating decision that assigned an initial noncompensable rating. Remand is required to allow the RO to adjudicate the issue of whether there was CUE in an April 2012 rating decision in the first instance. The Veteran’s initial claim for service connection for PTSD and a left shoulder disability was received by VA on November 2, 2010. In an April 2012 rating decision, the RO denied service connection for PTSD on the basis that there was no evidence that PTSD was diagnosed, and granted service connection for a left shoulder disability with an initial noncompensable evaluation. With regards to these two issues, the Veteran did not appeal that decision, he did not submit any new or material evidence within one year, and VA did not have constructive receipt of relevant VA treatment records within one year. The April 2012 rating decision is thus final with regards to these two issues. At the March 2019 hearing, the Veteran and his representative asserted that VA committed CUE when it failed to take into consideration that the Veteran was suppressing his PTSD symptoms at the December 2010 VA PTSD examination and that his left shoulder disability has been at least 10 percent disabling on the basis of pain since the initial date of service connection, but was more closely associated with the 20 percent rating since his left arm is his dominant arm. Therefore, the representative asserts VA had a duty to obtain a new VA examination and committed reversible CUE by failing to do so and that the failure to at least assign an initial compensable rating for the shoulder disability ignored precedent regarding compensation for musculoskeletal disorders. The RO must consider the Veteran’s CUE claims prior to consideration by the Board, therefore the matters are remanded. 12. Entitlement to a TDIU from March 12, 2015, to February 10, 2016. The Board finds that the claim for entitlement to a TDIU is inextricably intertwined with the claims remanded herein, the outcome of which could possibly moot the issue of entitlement to a TDIU. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain all VA medical records and physically associate them with the record for the Board’s review. Also, ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal, especially any related to his prostate or lumbar spine disorders. 2. Obtain the Veteran’s complete STRs. Document all requests for information as well as all responses in the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. 3. Schedule the Veteran for an examination by an appropriate clinician to determine whether the Veteran has a current diagnosis of diabetes. If the Veteran does have a current diagnosis of diabetes, the examiner must opine whether it at least as likely as not that his diabetes (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner should consider the Veteran’s reports of perceived diabetes symptoms during and since service and explain whether such are actually hallmarks of diabetes. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back, shoulder, and neurologic disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected prostate disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected rhinitis disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should specifically consider and address whether the Veteran has respiratory or headache symptoms associated with his rhinitis and, if such disorders are at least as likely as not caused or aggravated by his rhinitis, complete appropriate disability benefits questionnaires so that such symptoms can be evaluated and rated as/if necessary and permissible under the law. 7. Adjudicate the issue of entitlement to an earlier effective date for the grant of service connection for a trauma disorder and for the assignment of a 20 percent rating for a left shoulder disorder based only on whether CUE exists in an April 2012 rating decision. Address the Veteran’s theory set out in the March 2019 hearing testimony and in the record. (Continued on the next page)   8. Review the June 2019 rating decision and the ratings associated with the Veteran’s prostate/bladder disorder. Take corrective action or otherwise explain why such is not necessary in documentation associated with the record. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Sosna, 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.