Citation Nr: 21000574 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-27 664 DATE: January 5, 2021 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 low back disability is remanded. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol use disorder, major depressive disorder, and anxiety disorder, (previously rated as insomnia disorder with co-morbid depressive and anxious symptoms) is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from December 2004 to December 2007, to include service in the Southwest Asia theater of operations during the Persian Gulf War. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2015 rating decision by the Department of Veterans Affairs (VA). In this regard, the Board finds the August 2015 rating decision is the correct decision on appeal for all the claims herein, including the claims for a low back disability, a right hip disability, and a left hip disability. Specifically, the August 2015 rating decision, in pertinent part, originally denied entitlement to service connection for a low back disability and a bilateral hip disability. Thereafter, the Veteran, in February 2016, in pertinent part, submitted an application to reopen claims for a low back disability and a bilateral hip disability and these claims were again denied in an April 2016 rating decision. In July 2016, the Veteran, in part, filed a notice of disagreement as to the denial of low back disability and a bilateral hip disability; however, this notice of disagreement also properly falls within the one-year period from notification of the earlier August 2015 rating decision. Following issuance of a Statement of the Case (SOC) in March 2018, a substantive appeal was timely received within 60 days thereafter. As such, the August 2015 rating decision is the rating decision on appeal as to the claims for a low back disability, a right hip disability, and a left hip disability. Hence, the Board has characterized these issues, as service connection claims and addressed the claims on the merits. Furthermore, as these claims were addressed on the merits in the April 2016 rating decision and March 2018 SOC, there is no prejudice to the Veteran in the Board’s adjudication of these claims on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Additional evidence developed by VA, to include additional VA treatment records and an October 2018 PTSD disability benefits questionnaire (DBQ), was associated subsequent to the most recent, March 2018 SOC issued for the appeal herein, and after transfer of the appeal to the Board. The Veteran did not waive review of the evidence by the Agency of Original Jurisdiction (AOJ). However, as to the Veteran’s claims for service connection for a low back disability and bilateral hip disability, this evidence is either not relevant, or duplicative of prior evidence, as it reflects that the Veteran’s continuing complaints related to his back and bilateral hip, which were already of record. This evidence is relevant to the claim for increased initial rating for the Veteran’s psychiatric disability. Thus, in October 2020, VA sent a letter to the Veteran and his representative inquiring whether they wished to waive AOJ review of this new evidence. They were informed that if they did not respond within 45 days, VA would assume that they did not waive AOJ review. No response has been received. In these circumstances, the law requires that the Board return the appeal to the AOJ for initial consideration of the new evidence. 38 C.F.R. §§ 19.37(b); 20.1305(c). As a final initial matter, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States 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. During the pendency of his claim as to his disagreement with the initial rating for his psychiatric disability, in a November 2016 application for TDIU, the Veteran asserted he was unemployable due to his psychiatric disability. Thus, even though TDIU was denied in a March 2017 rating decision, the Board concludes that the Court’s holding in Rice is applicable, and the TDIU claim is properly before the Board, and the issue has been listed on the title page. 1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. Initially, the Board notes that a review of the claims file reflects the Veteran’s complete service treatment records may not have been obtained. Specifically, the Veteran’s service treatment records do not currently contain a separation examination. Additionally, in his July 2016 notice of disagreement, the Veteran reported his injured his hips, went sick call, and was granted profile of light duty, with no running, no jumping, and no squats. Similarly, in his May 2018 substantive appeal, he reported, in part, that he went to sick call for his hips and received a profile and pain medication. However, the Veteran’s service treatment records currently of record do not document any hip related complaints. Thus, another attempt to obtain the Veteran’s complete service treatment records is warranted. Additionally, the post service record reflects the Veteran has complained of bilateral hip pain, but does not reflect a diagnosis has been endorsed for a disability of either hip. In this regard, as noted above, the record reflects that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, and thus service connection may be established if the Veteran exhibits objective indications of a chronic disability resulting from undiagnosed illness or medically unexplained chronic multi-symptom illness, to include joint pain, that became manifest to a degree of 10 percent or more not later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Additionally, a June 2019 Gulf War general medical examination DBQ is of record, but it did not address the Veteran’s bilateral hips. Thus, on remand, the Veteran must be provided with a VA examination to determine the nature and etiology of any bilateral hip disability identified. In this regard, if a disability of either hip is identified (and even if a diagnosis is not identified but manifests in symptoms that cause functional impairment), it should be determined whether the identified disability is etiologically related to service. Further, if no diagnosis is endorsed, it should be determined whether the Veteran’s complaints related his bilateral hip constitute an objective indication of a qualifying chronic disability resulting from undiagnosed illness or medically unexplained chronic multi-symptom illness. Further, some post service evidence also reflects the Veteran has complained of radiating hip pain in connection with his back disability. For example, a September 2018 VA treatment record noted the Veteran reported pain radiated across his lower back when he bent forward, specifically that it radiated up to his inferior scapula and to his hip. Similarly, a May 2019 VA treatment record described the Veteran reported his low back and hip pain radiated, specifically that it went down his thighs and up into his shoulders. Thus, as remand for a back examination is directed below, the Board has included a specific request for the examiner to address any low back-related neurological symptoms, including as manifested in hip pain. 3. Entitlement to service connection for a low back disability is remanded. Pursuant to the duty to assist, remand is warranted for a supplemental medical opinion. Specifically, a June 2015 back conditions DBQ documented the Veteran did not have or had not ever been diagnosed with a thoracolumbar spine condition and explained there was no objective evidence to support a diagnosis currently. However, the June 2015 back DBQ also documented imaging studies of the thoracolumbar spine been had not performed. In this regard, March 2017 VA spine imaging provided an impression, in part of T12-L2 degenerative changes. October 2018 magnetic resonance imaging (MRI) provided an impression of multilevel degenerative changes of the lower thoracic and upper lumbar spine. More recently, a May 2019 VA treatment record noted a MRI showed mild lower thoracic and upper lumbar degenerative discs and spondylosis T12/L1. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a low back disability because no VA clinician has opined whether the Veteran has a low back disability which is at least as likely as not related to service. Thus, a supplemental VA medical opinion is warranted. 4. Entitlement to an initial rating in excess of 70 percent for PTSD with alcohol use disorder, major depressive disorder, and anxiety disorder, (previously rated as insomnia disorder with co-morbid depressive and anxious symptoms) is remanded. As discussed above, additional relevant evidence developed by VA, to include additional VA treatment records and an October 2018 PTSD DBQ, was associated with the record subsequent to the most recent, March 2018 SOC, issued, in part, as to the increased initial rating claim for the Veteran’s psychiatric disability, and after transfer of the claim to the Board. Neither the Veteran or his representative waived AOJ review of this additional evidence nor did they respond to VA correspondence inquiring whether they wish to waive AOJ review of this new evidence. Thus, a remand for AOJ consideration of this evidence is warranted. Additionally, in September 2018, the Veteran submitted a VA Form 21-4142, Authorization for Release of Information, and reported medical treatment from the Austin Vet Center and Orlando Vet Center. The record request was rejected, in September 2018 and October 2018, by the VA Private Medical Records Retrieval Center because the providers listed were non-private. No further action has been taken on the September 2018 authorization form regarding records from these Vet Centers; however, when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran in attempting to obtain them. In this regard, of record are treatment records from the Orlando Vet Center, dated from April 2016 and November 2016. Therefore, remand is required to allow VA to request any records from the Austin Vet Center as well as any additional records from the Orlando Vet Center, as they are potentially relevant to this claim. Lastly, in light of the remand of this claim for other matters, and as the record reflects the Veteran receives continuing mental health treatment at the Central Texas Veterans Health Care System, updated VA treatment records, from August 2019 to the present, should be obtained and associated with the record. 5. Entitlement to a TDIU is remanded. As noted above, the issue of entitlement to a TDIU is, in part, based on the Veteran’s service-connected psychiatric disability. Thus, as the issue of entitlement to a TDIU is intertwined with the increased rating claim the Veteran’s psychiatric disability, a remand is warranted for the claim for TDIU. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, in his November 2016 application for TDIU, the Veteran reported that he last worked full-time in March 2016 and had four years of high school education. More recently, an October 2018 VA examiner documented in part, the Veteran reported he had been unemployed since 2016 and that he completed vocational training as a motorcycle mechanic in June 2017. Therefore, as some change has been documented as the Veteran’s education, he should be provided with another VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion in order to provide current information as to his employment and education. In addition, if the Veteran has received his vocational training from VA, his VA vocational rehabilitation file should be associated with the virtual file. Finally, VA is obligated to obtain relevant Social Security Administration records. Relevant records are records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (2010). A September 2017 VA treatment record noted the Veteran would keep looking for a job and that his Social Security benefits were denied. The Veteran’s Social Security Administration records are not associated with the record, nor does the record reflect an attempt has been made to obtain any such records with regard to disability benefits. Accordingly, the Board finds remand is warranted to obtain relevant Social Security Administration disability benefits records, as there is a reasonable possibility that any existing relevant Social Security Administration records may be relevant to the Veteran’s claim for a TDIU. The matters are REMANDED for the following actions: 1. Provide the Veteran with another VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion in order to provide updated information as to his employment and education. The Veteran and his representative should be given an opportunity to respond, and any additional information or evidence received should be associated with the claims file. 2. To the extent the Veteran’s vocational rehabilitation was with VA, please associate a copy of his VA vocational rehabilitation file with the Veteran’s virtual benefits file/VBMS. 3. To the extent additional service treatment records exist, please attempt to obtain any outstanding service treatment records. 4. Obtain and associate with the record all relevant records, including medical records, from the Social Security Administration pertaining to the Veteran concerning a claim for disability benefits. 5. Obtain the Veteran’s treatment records from the Vet Center in Austin, Texas, and his treatment records from the Vet Center in Orlando, Florida (excluding the records dated from April 2016 and November 2016 already of record). 6. Obtain any of the Veteran’s updated VA treatment records, from the Central Texas Veterans Health Care System, from August 2019 to the present. 7. Schedule the Veteran for a VA examination for his bilateral hips. The examiner must review the claims file. The examiner is asked to provide a response, with a rationale, to the following: (a.) The examiner should state whether the Veteran’s symptoms of joint pain of the bilateral hip, can be ascribed to any known clinical diagnoses. If diagnosed disorders are established (or if a diagnosis cannot be provided but the Veteran’s condition of either hip manifests in symptoms that cause functional impairment), the examiner should render an opinion as to whether it is at least as likely as not that any such disorder had its onset during the Veteran’s active service or is otherwise related to such service. (b.) If the Veteran’s symptoms of joint pain of the bilateral hip cannot be ascribed to any known clinical diagnosis, then specify whether the Veteran has objective indications of a chronic disability, resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (c.) The examiner should state whether any identified hip disability is due to a medically explained chronic multisymptom illness. In providing the requested opinions, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 8. Obtain a medical opinion for his low back with examination (including via telehealth techniques if possible) only if deemed necessary by the provider. The clinician must review the claims file. The opinion provider is asked to provide a response, with a rationale, to the following: (a.) The clinician should render an opinion as to whether it is at least as likely as not that any low back disorder, diagnosed proximate to or during the appeal period (to include, but not limited to, 12-L2 degenerative changes, multilevel degenerative changes upper lumbar spine and upper lumbar degenerative discs and spondylosis T12/L1) had its onset during the Veteran’s active service or is otherwise related to such service. (b.) The clinician must also address any neurological symptoms due to a low back disability and opine whether any identified neurological disability results in pain for either hip. In providing the requested opinions, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 9. Thereafter, readjudicate the issues on appeal with review of all evidence received since the last prior adjudication of the Veteran’s claims, and also readjudicate entitlement to a TDIU. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.