Citation Nr: 20008397 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 15-04 517 DATE: January 31, 2020 REMANDED Entitlement to higher staged initial ratings for posttraumatic stress disorder (PTSD), rated as 30 percent disabling from February 8, 2012, through April 30, 2017, and as 50 percent disabling from May 1, 2017, is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from July 1966 to May 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the appellant has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP). Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review this appeal under the existing Legacy Appeals System. In a July 2018 decision, the Board, in pertinent part, denied the Veteran’s claims of entitlement to higher staged initial ratings for PTSD as well as entitlement to service connection for a cervical spine disability. The Veteran appealed that portion of the decision to the United States Court of Appeals for Veterans Claims (Court), and in an August 2019 Order, the Court granted a July 2019 Joint Motion for Partial Remand (Joint Motion) in which the parties agreed that those portions of the Board’s July 2018 decision be vacated and remanded for additional development and readjudication. With respect to the claim of entitlement to service connection for a cervical spine disability, the Joint Motion stipulated that the Board erred in finding that VA’s duty to assist was satisfied where it failed to (1) make reasonable efforts to obtain private medical records necessary to substantiate Appellant’s claim; and 2) seek clarification from the private examiner who authored a December 2015 Disability Benefits Questionnaire in support of the Veteran’s claim. Specifically, in the December 2015 Disability Benefits Questionnaire, the Veteran’s private physician, J. W. Aldridge, MD, FAAOS, diagnosed the Veteran as having degenerative disc disease and indicated that this had been confirmed by imaging studies of the cervical spine that showed arthritis. However, the record did not contain any such imaging studies of Veteran’s cervical spine, nor did the record reflect that VA made any efforts to attempt to obtain those records. As such, the Joint Motion indicated that a remand was necessary for VA to attempt to obtain these records by requesting that the Veteran provide authorization to release such records. Although the Board recognizes that voluminous private treatment records have been added to the record since the July 2019 Joint Motion, a request for the imaging studies specifically referenced by Dr. Aldridge in his December 2015 Disability Benefits Questionnaire should still be made in order to ensure that the correct documents are obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Additionally, the Board’s July 2018 decision found the December 2015 Disability Benefits Questionnaire was “not entitled to any probative weight” because Dr. Aldridge “did not rely on any records in completing the DBQ” and “stated the Veteran has unfavorable ankylosis of the entire spine (neck and back) which is medically inconsistent with the range of motion measurements reported on the DBQ.” However, the Joint Motion emphasized that the December 2015 Disability Benefits Questionnaire did not indicate whether records were reviewed (as both the “Yes” and “No” boxes were similarly left blank in answering whether the Veteran’s VA claims file was reviewed) and posited that Dr. Aldridge’s inclusion of both range of motion measurements and the indication of ankylosis suggested a typographical error in the report. As such, the Joint Motion concluded that the Board erred by not seeking clarification from Dr. Aldridge regarding these deficiencies in the December 2015 Disability Benefits Questionnaire. See Savage v. Shinseki, 24 Vet. App. 259, 269-70 (2011) (noting that “nothing in VA’s statutes or regulations, or in this Court’s case law, limits VA’s authority or duty to return inadequate medical examination reports to only those reports prepared by VA medical examiners,” and when missing information is relevant, factual, and objective, and “bears greatly on the probative value of the private examination report,” the Secretary has a duty to seek clarification). Therefore, on remand, such clarification should be obtained from Dr. Aldridge. With respect to the issue of entitlement to higher staged initial ratings for PTSD, the Joint Motion stipulated that the Board’s July 2018 decision erred in failing to explain why the record was sufficiently complete for adjudication of the PTSD claim when it also determined that remand was necessary to develop and adjudicate the issue of TDIU. Specifically, the Joint Motion explained that, given that the schedular rating criteria for mental disorders required an adjudicator to assess the effects of a claimant’s mental health disorder on his or her occupational functioning, the Board took a divergent position when it adjudicated the PTSD claim while also determining that additional development was needed to adjudicate the issue of TDIU (which included the effect of Veteran’s PTSD on his employability). See Brambley v. Principi, 17 Vet. App. 20, 24 (2003); see also 38 C.F.R. § 4.130, Diagnostic Code 9411 (providing disability ratings for PTSD based, in part, on the level of occupational and social impairment caused by a claimant’s disability). As such, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (if a matter on appeal is inextricably intertwined with an issue or claim still pending before VA, for reasons of judicial economy or on prudential grounds, review of merits of the claim or adjudication will generally be deferred for further adjudication, as appropriate). Finally, the Board recognizes that its July 2018 decision also remanded the issues of entitlement to service connection for sleep apnea and entitlement to a TDIU. Specifically, the July 2018 decision directed that the RO (1) request the Veteran to complete a VA Form 21-4142 to provide VA authorization to obtain all potentially outstanding VA and private evidence relevant to treatment of sleep apnea; (2) schedule the Veteran for an examination to determine the nature and etiology of any sleep apnea; (3) request the Veteran to complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits; and then to (4) adjudicate the issue of entitlement to a TDIU, and readjudicate the issue of entitlement to service connection for sleep apnea. Upon review of the record, it appears that all of the development requested in the Board’s July 2018 Remand has not been completed. Crucially, it does not appear that the issues of entitlement to a TDIU and entitlement to service connection for sleep apnea have been adjudicated/readjudicated. As such, on remand, all development requested in the Board’s July 2018 Remand must be completed. See Stegall v. West, 11 Vet. App. 268 (1998) (the Board errs as a matter of law when it fails to ensure compliance to remand directives). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 to provide VA authorization to obtain clarification and additional records from the Veteran’s private physician, John W. Aldridge, MD, FAAOS. Once such authorization is obtained, Dr. Aldridge should be asked to identify and provide the imaging studies of the cervical spine referenced in his December 2015 Disability Benefits Questionnaire. Additionally, Dr. Aldridge should be requested to clarify and/or cure the deficiencies on his December 2015 Disability Benefits Questionnaire (i.e., specify whether the Veteran’s records were reviewed and clarify whether the Veteran has a diagnosis of ankylosis of the cervical spine). Make two requests for identified private records for which authorization is provided, unless it is clear after the first request that a second request would be futile. 2. After this and any other appropriate development is conducted, readjudicate the issues of entitlement to higher staged initial ratings for posttraumatic stress disorder (PTSD), rated as 30 percent disabling from February 8, 2012, through April 30, 2017, and as 50 percent disabling from May 1, 2017; entitlement to service connection for a cervical spine disability; and entitlement to service connection for sleep apnea; and adjudicate the issue of entitlement to a TDIU, with consideration given to the Veteran’s education, rank in the military, lengthy civilian career, attainment of supervisory positions, and skills obtained in post-service employment positions. Additionally, if any benefit sought is not granted, then the Veteran should be furnished with a Supplemental Statement of the Case.   The Veteran and his representative should be afforded an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.