Citation Nr: 20038071 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 17-28 906 DATE: June 3, 2020 REMANDED Entitlement to an initial rating in excess of 30 percent for Crohn’s disease, status post ileocolectomy with gastroesophageal reflux disease (GERD) with esophagitis, and history of gastric ulcers with gastritis, is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and persistent depressive disorder with bruxism is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2004 to April 2015. This matter comes to the Board of Veterans’ Appeals (Board) from an April 2014 rating decision which, in pertinent part, granted service connection for other specified anxiety disorder and persistent depressive disorder, evaluated at 30 percent, effective April 28, 2015; and granted service connection for Crohn’s disease, evaluated at 30 percent, effective April 28, 2015. In July 2016, the Veteran testified before a Decision Review Officer at a Regional Office hearing on the issues of increased ratings for his psychiatric disability and Crohn’s disease. A copy of the transcript is of record. This matter also comes to the Board from March 2016 and October 2016 rating decisions which, in pertinent part, denied entitlement to service connection for left lower extremity radiculopathy, left and right ankle disabilities, and obstructive sleep apnea. In a May 2017 rating decision, the RO granted an increased 50 percent evaluation, effective April 28, 2015, for the Veteran’s PTSD (previously diagnosed as other specified anxiety disorder) and persistent depressive disorder. In a February 2019 decision, the Board, in pertinent part, denied initial ratings in excess of 50 percent for PTSD and 30 percent for Crohn’s disease, and denied entitlement to service connection for obstructive sleep apnea, left lower extremity radiculopathy, and left and right ankle disabilities. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a December 2019 order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), vacated the Board’s decision as it pertained to these issues, and remanded the matter back to the Board for adjudication consistent with the JMPR. The Board notes that claims of entitlement to increased ratings for sinusitis and bilateral pes planus are also on appeal and will be addressed in separate Board decisions.   Entitlement to an initial rating in excess of 30 percent for Crohn’s disease, status post ileocolectomy with gastroesophageal reflux disease (GERD) with esophagitis, and history of gastric ulcers with gastritis, is remanded. As it pertains to an increased rating for Crohn’s disease, the parties agreed that a remand is warranted for a new VA opinion as to the severity of the Veteran’s Crohn’s disease. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and persistent depressive disorder with bruxism is remanded. As it pertains to an increased rating for the Veteran’s PTSD, the parties agreed that the Board failed to provide an adequate reasons or bases for its findings and conclusions. Upon review, the Board finds that it cannot make a fully-informed decision at this time. Specifically, VA treatment records reflect that in February 2018, the Veteran was referred to a community mental health provider through the Choice Program. It does not appear that these records have been associated with the record. A remand is required to allow VA to obtain authorization and request these records. Additionally, while VA treatment records were obtained, records of scanned documents through Vista Imaging were not associated with the record, including an April 2019 Community Consult Result from My Brighter Self Counseling. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Entitlement to service connection for left lower extremity radiculopathy is remanded. As it pertains to service connection for left lower extremity radiculopathy, the parties agreed that the Board failed to provide an adequate reasons or bases for its findings and conclusions. Upon review, the Board finds that it cannot make a fully-informed decision at this time. Specifically, while a March 2016 VA examiner found that the Veteran’s intermittent paresthesia did not fit a radicular pattern, a July 2016 letter from the Veteran’s treating clinician opined that the Veteran left lower extremity pain and tingling was due to left piriformis syndrome with the possibility of a lumbar spine component. An October 2016 VA examiner found that the Veteran did not have piriformis syndrome, but rather has trochanteric syndrome; however, the examiner did not attribute the Veteran’s left lower extremity pain and tingling to his left hip disability. Therefore, the Board finds that a remand is warranted for an addendum opinion as to the nature and etiology of the Veteran’s left lower extremity pain and tingling. Entitlement to service connection for obstructive sleep apnea is remanded. As it pertains to service connection for obstructive sleep apnea, the parties agreed that a new VA examination and medical opinion is warranted to address whether the Veteran has a sleep disorder, to include obstructive sleep apnea, that is separate and distinct from his service-connected PTSD. Entitlement to service connection for right and left ankle disabilities is remanded. As it pertains to service connection for right and left ankle disabilities, the parties agreed that the Board failed to provide an adequate reasons or bases for its findings and conclusions. Upon review, the Board finds that it cannot make a fully-informed decision at this time. While a September 2016 VA examiner found that the Veteran did not have a current right or left ankle disability, January 2019 VA podiatry treatment records reflect an assessment of bilateral ankle instability, everted strains. Therefore, the Board finds that a remand is warranted for a new VA examination and medical opinion as to the nature and etiology of the Veteran’s right and left ankle disability. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records located in Vista Imaging but not associated with the claims file, including, but not limited to, an April 2019 Community Consult Result from My Brighter Self Counseling. 2. Ask the Veteran to complete a VA Form 21-4142 for non-VA mental health treatment from February 2018. Make two requests for the authorized records from the identified providers unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records for the period from September 2019 to present. 4. Obtain an addendum opinion from an appropriate clinician to determine the severity of the Veteran’s Crohn’s disease. An examination is not necessary unless so deemed by the examiner. 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, to include (1) the severity of the Veteran’s Crohn’s disease without the ameliorative effects of his medication, (2) the effects of his Crohn’s disease on his vitamin levels and whether his vitamin deficiencies rise to the level of malnutrition, and (3) the locations of the Veteran’s ulcers, to include whether he has an ulcer disability that is separate and distinct from his Crohn’s disease. If the examiner finds that the Veteran has an ulcer disability that is separate and distinct from his Crohn’s disease, the examiner must opine whether the Veteran’s ulcer disability at least as likely as not began during service or is otherwise related to an in-service injury, event, or disease. If the examiner finds that an ulcer disability was not incurred in or otherwise related to service, the examiner must opine as to whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. 5. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s claimed lower left extremity disability. An examination is not necessary unless so deemed by the examiner. The examiner must opine whether the Veteran has a neurologic disability of the left lower extremity that at least as likely as not began during service or is otherwise related to an in-service injury, event, or disease. If the examiner finds that a left lower extremity neurologic disability was not incurred in or otherwise related to service, the examiner must whether it is at least as likely as not (1) proximately due to service-connected disability, to include lumbar spine degenerative arthritis, or (2) aggravated beyond its natural progression by service-connected disability. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder, to include obstructive sleep apnea. The Board notes that due to the COVID-19 pandemic, it may be difficult to schedule VA examinations. The Veteran should be afforded the opportunity to postpone his examination until such time as it can be scheduled. Alternatively, if appropriate, the RO may schedule a telemed examination or obtain a VA medical opinion(s) only. The examiner must provide a diagnosis for each sleep disorder that is separate and distinct from his service-connected PTSD, to include whether he has obstructive sleep apnea. All diagnostic testing deemed necessary should be conducted. For each diagnosed disorder, the examiner must opine whether it at least as likely as not began during service or is otherwise related to an in-service injury, event, or disease. If the examiner finds that a diagnosed disorder was not incurred in or otherwise related to active service, the examiner must opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right and left ankle disability. The Board notes that due to the COVID-19 pandemic, it may be difficult to schedule VA examinations. The Veteran should be afforded the opportunity to postpone his examination until such time as it can be scheduled. Alternatively, if appropriate, the RO may schedule a telemed examination or obtain a VA medical opinion(s) only. The examiner must opine whether a right or left ankle disability, to include instability or everted sprains, at least as likely as not (1) began during active service, to include related to an in-service injury, event, or disease, including in-service ankle sprains, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (Continued on the next page)   If the examiner finds that a right or left ankle disability was not incurred in or otherwise related to service, the examiner must opine whether a right or left ankle disability is at least as likely as not (1) proximately due to service-connected disability, to include pes planus, or (2) aggravated beyond its natural progression by service-connected disability. 8. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, Associate 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.