Citation Nr: 21001749 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 19-11 778 DATE: January 11, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial rating higher than 30 percent for bilateral nuclear sclerotic and cortical cataracts and right eye pterygium is remanded. Entitlement to an initial rating higher than 30 percent for hypertensive heart disease is remanded. Entitlement to an initial rating higher than 30 percent for depression with anxious distress is remanded. Entitlement to an initial rating higher than 20 percent for arthritis of the thoracolumbar spine is remanded. Entitlement to an initial rating higher than 20 percent for diabetes mellitus is remanded. Entitlement to an initial rating higher than 20 percent for a right shoulder disability is remanded. Entitlement to an initial rating higher than 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to an initial rating higher than 10 percent for right lower extremity lumbar radiculopathy is remanded. Entitlement to an initial rating higher than 10 percent for a right elbow disability is remanded. Entitlement to an initial rating higher than 10 percent for a right shoulder scar is remanded. Entitlement to an initial rating higher than 10 percent for scarring due to keloid removal and vitiligo at base of skull and superior neck is remanded. Entitlement to an initial rating higher than 10 percent for a left ankle disability is remanded. Entitlement to an initial rating higher than 10 percent for left lower extremity diabetic peripheral neuropathy is remanded. Entitlement to an initial rating higher than 10 percent for a right knee disability is remanded. Entitlement to an initial rating higher than 0 percent for scarring alopecia is remanded. Entitlement to an initial rating higher than 0 percent for anemia is remanded. Entitlement to an initial rating higher than 0 percent for hypertension is remanded. Entitlement to an initial rating higher than 0 percent for a left wrist disability is remanded. Entitlement to an initial rating higher than 0 percent for left eye pinguecula 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 served on active duty from January 1996 to February 2017. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for sleep apnea is remanded. In a November 2018 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim for service connection for sleep apnea. In April 2019, the Veteran’s former representative submitted a statement of disagreement with the decision denying service connection. A statement of the case concerning that issue has yet to be issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to higher ratings for anemia, hypertension, hypertensive heart disease, diabetes mellitus, GERD, scarring alopecia, scars due to keloid removal and vitiligo, a right shoulder scar, left eye pinguecula, bilateral cataracts and right eye pterygium, depression, left wrist disability, right elbow disability, right shoulder disability, left ankle disability, right knee disability, thoracolumbar spine disability, radiculopathy, and diabetic peripheral neuropathy is remanded. The record indicates outstanding medical records. The Veteran separated from service in February 2017. The most recent medical records are from May 2017. The limited VA medical records show that that the Veteran was receiving ongoing treatment outside of the VA system. In May 2017, the Veteran reported that he received care through Tricare Prime. VA medical records also show a consult for a Choice referral. A remand is required to allow VA to obtain authorization and request these records. The Veteran was most recently examined for the service-connected disabilities in February, April, and June 2017. The Board notes that the Veteran’s medical records were not reviewed in the preparation for most of the examination reports, except for the depression examination and diabetic peripheral neuropathy addendum. The wrist, elbow, shoulder, ankle, knee, back examinations do not contain complete responses for passive range of motion measurements and pain on weight-bearing testing. The Board finds the record incomplete to adjudicate those claims. Where the evidence of record does not show the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Therefore, after obtaining the Veteran’s updated treatment records, the Veteran should be provided updated VA examinations that document the current symptomatology of the service-connected disabilities. 3. Entitlement to TDIU is remanded. The Board finds that a claim for TDIU was reasonably raised by the record during the course of the appeal for increased ratings and that claim is part of the appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The AOJ has not yet considered the claim of entitlement to TDIU in connection with the current claims for higher ratings. Thus, the Board finds that, after giving the Veteran an opportunity to file a formal claim for a TDIU, and completing the other actions noted below, the AOJ should adjudicate that matter in the first instance, to avoid any prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The matters are REMANDED for the following action: 1. Issue a statement of the case addressing the issue of entitlement to service connection for sleep apnea. Notify the Veteran of the appeal rights and that a timely substantive appeal must be filed to perfect an appeal on the issue. 2. After obtaining appropriate authorization, obtain any VA and private treatment records identified by the Veteran that are not already of record, to include all records since February 2017. 3. Send the Veteran and representative a letter requesting that the Veteran furnish any additional information or evidence pertinent to a claim for TDIU. The letter should specifically notify the Veteran of the criteria to establish entitlement to TDIU and supply a form to apply for TDIU. 4. Schedule the Veteran for a VA examination conducted by an appropriate physician to assist in determining the current nature and severity of service-connected anemia. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner must explicitly address the functional impairment caused by the disability. 5. Schedule the Veteran for a VA examination, with an appropriate VA physician to determine the current severity of the hypertension. All indicated tests should be conducted. All pertinent symptomatology and findings must be reported in detail. The examiner should provide blood pressure readings and should state whether medication is required for control. The examiner must explicitly address the functional impairment caused by the disability. A rationale for all opinions should be provided. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of hypertensive heart disease. The examiner must review the record and should note that review in the report. All testing deemed necessary should be performed. 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. If testing cannot be completed due to symptoms unrelated to the Veteran’s cardiac condition, the examiner should report the cause of those symptoms. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected heart disability alone and discuss the effect of the Veteran’s heart disability on any occupational functioning and activities of daily living. The examiner should provide a METS score. If METS testing is medically contraindicated, the examiner should so state, and should provide a METS estimate. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. A complete rationale for all opinions should be provided in the examination report. 7. Schedule the Veteran for a VA examination to determine the current nature and severity of service-connected diabetes mellitus and any associated symptoms of renal involvement. The examiner must review the claims file and should note that review in the report. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. The examiner must explicitly address the functional impairment caused by the disability. The examiner should specifically opine whether or not regulation of activities is necessary due to diabetes mellitus, which is defined as avoidance of strenuous occupational and recreational activities. The Veteran should also describe all associated symptoms, including any neurologic impairment or kidney disorder. The examiner should state whether or not there is peripheral neuropathy of each extremity. 8. Schedule the Veteran for a VA examination to determine the current severity of the GERD. The examiner must review the claims file and should note that review in the report. Any indicated diagnostic tests and studies must be accomplished. The examiner should describe all symptomatology. The rationale for all opinions should be provided. The examiner should state whether or not there is pain, vomiting, material weight loss, hematemesis, melena, moderate anemia, recurrent epigastric distress, dysphagia, pyrosis, regurgitation, or substernal arm or shoulder pain. The examiner should opine whether the symptoms are productive of severe impairment of health, considerable impairment of health, or a lesser level of impairment of health. 9. Schedule the Veteran for a VA skin examination to determine the current nature and severity of the scarring alopecia. The examiner must review the record and should note that review in the report. 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 must indicate the percentage of the scalp affected by the disability. A complete rationale should be provided for all opinions. 10. Schedule the Veteran for a VA scar examination to determine the current nature and severity of the scarring due to keloid removal and vitiligo, and right shoulder scar. The examiner must review the record and should note that review in the report. Color photographs should be taken and added to the claims file. The VA examiner should identify all scars. For each scar identified, the examiner must measure the accurate size of the scar, and indicate whether each scar is painful, unstable, deep or superficial, or linear or non-linear. The examiner is also asked to determine whether there are any disabling effects caused by the scars. Any indicated diagnostic tests and studies must be accomplished. The examiner should describe all symptomatology. A rationale for all opinions should be provided. 11. Schedule the Veteran for a VA eye examination by an appropriate clinician to determine the severity of service-connected bilateral cataracts, right eye pterygium, and left eye pinguecula. The examiner must review the claims file and should note that review in the report. The examiner should specifically identify the disabilities, and describe in detail all pertinent symptomatology and findings of any visual impairment found, including any visual field loss. The examiner should consider all applicable rating criteria during the appeal period (including the versions of the eye rating criteria effective prior to and effective as of May 13, 2018). A complete rationale should be provided for any opinions expressed. The examiner should opine whether it is at least as likely not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 12. Schedule the Veteran for a VA examination to determine the current nature and severity of a psychiatric disability. The examiner should review the claims folder and should note that review in the report. All necessary tests and studies, to include psychological testing, if appropriate, should be accomplished and all clinical findings reported in detail. The examiner should identify the existence and severity of all current manifestations of the service-connected psychiatric disability. The examiner should opine as to the levels of occupational and social impairment caused by a psychiatric disability and should describe the symptoms, to include the frequency and severity of symptoms, resulting in those levels of impairment. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. A complete rationale should be provided for all opinions. 13. Schedule the Veteran for a VA joints examination for the service-connected left wrist, right elbow, right shoulder, left ankle, and right knee disabilities. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. The examiner should state all examination findings, with the rationale for the comments and opinions expressed. The examiner should specifically state ranges of motion for active and passive motion and on weight-bearing and nonweight-bearing. The examiner should provide ranges of motion and comment on whether there is any additional loss of function due to weakened movement, excess motion, fatigability, incoordination, pain on use, or on flare ups. The examiner should discuss the reported flare ups and what additional loss of function or motion occurs during flare ups. The examiner should discuss the severity, frequency, and duration of any flare-ups and name the precipitating and alleviating factors. Any opinion expressed must be accompanied by a complete rationale. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not medically appropriate in this case, the examiner should clearly explain why that is so. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities, that is consistent with his training and experience. If the Veteran is felt capable of employment despite the service-connected disabilities, the examiner should state what type of employment, and what accommodations would be necessary due to the service-connected disabilities. 14. Schedule the Veteran for a VA spine examination conducted by a physician to assist in determining the current severity of the service-connected lumbar spine, and right lower extremity disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should provide ranges of motion for passive and active motion of the lumbar spine and for weight bearing and nonweight bearing. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare-ups or with repeated use. The examiner should note any incapacitating episodes associated with the lumbar spine disability, and their frequency and duration. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. The examiner is asked to state whether or not there is any ankylosis of the spine or any segment of the spine. The examiner should identify and describe any lower extremity neurologic disabilities identified as due to the service-connected lumbar spine and lower extremity disabilities, the nerves affected, and the level of impairment. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not medically appropriate in this case, the examiner should clearly explain why that is so. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities, that is consistent with his training and experience. If the Veteran is felt capable of employment despite the service-connected disabilities, the examiner should state what type of employment, and what accommodations would be necessary due to the service-connected disabilities. 15. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of service-connected diabetic peripheral neuropathy, particularly of the left lower extremity. 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. A complete rationale should be provided for all opinions. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.