Citation Nr: 21066584 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-42 408 DATE: November 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder and depressive disorder, is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension, sleep apnea, and acquired psychiatric disability, is remanded. Entitlement to service connection for a sinus disability, to include allergic rhinitis, is remanded. Entitlement to service connection for a lung disease, to include asbestosis and chronic obstructive pulmonary disorder, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an evaluation in excess of 10 percent pseudofolliculitis barbae is remanded. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left hand is remanded. Entitlement to a compensable evaluation for left hand burns is remanded. Entitlement to a compensable evaluation, for the period prior to January 8, 2014, and in excess of 10 percent thereafter, for scar, left inguinal region status post hernia repair is remanded. Entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's acquired psychiatric disorder, diagnosed as anxiety disorder and depressive disorder, is related to his active service. CONCLUSION OF LAW The criteria for service connection for acquired psychiatric disorder, diagnosed as anxiety disorder and depressive disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to November 1972. The Veteran testified before the undersigned at a hearing in January 2021. A transcript of the hearing has been associated with the claims file. At the hearing before the undersigned the Veteran's representative raised the claim of entitlement to a TDIU as a part of the increased ratings on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue has been included above. The April 2018 Statement of the Case included the issue of entitlement to a higher evaluation for tinnitus. In the subsequent Substantive Appeal on a VA Form 9 dated in April 2018 the appellant indicated that he wished to appeal all the issue listed on the Statement of the Case. However, thereafter, in a May 2018 Substantive Appeal on a VA Form 9, the appellant's representative specifically identified the April 2018 Statement of the Case and indicated that an appeal was desired for all issues except for increased compensation for tinnitus. Therefore, the issue of entitlement to a higher evaluation for tinnitus is not currently on appeal before the Board. 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that he has an acquired psychiatric disorder due to his experiences in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that the Veteran has a current disability that is related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records show that the Veteran has been diagnosed with depression and unspecified anxiety. See, e.g., VA Treatment, September 2013. A January 2014 VA examiner did not identify any psychiatric; however, the medical opinion is not adequate because it does not discuss the prior diagnoses identified in the VA treatment records. At the hearing before the undersigned the Veteran reported that he did not have psychiatric problems before service and that during service he experienced traumatic events. In April 2021 a private provider discussed the Veteran's medical history and the reported incidents in service. The provider identified that the Veteran was diagnosed with unspecified depressive disorder. Thereafter, the provider opined that given the consistent records and credible statements showing a documented onset of mental health symptoms during the Veteran's service as a result of traumatic events, given the statements and records indicating the severity and chronicity of his psychological symptoms until the present, and given the lack of any indication that the Veteran had a mental health disorder prior to joining the military, the evidence of record indicates that it is at least as likely as not that the Veteran's unspecified anxiety disorder is a direct result of his service. In rendering the opinion the provider. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current acquired psychiatric disorder, diagnosed as anxiety disorder and depressive disorder, is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for acquired psychiatric disorder, diagnosed as anxiety disorder and depressive disorder, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a lung disease, to include asbestosis and chronic obstructive pulmonary disorder, is remanded. 2. Entitlement to service connection for sleep apnea is remanded. The claims are remanded to obtain complete treatment records and an adequate medical opinion. The Veteran receives consistent treatment from VA; however, the most recent VA treatment records regarding the Veteran associated with the claims file are dated in March 2018. As such, the claims must be remanded to obtain complete VA treatment records regarding the Veteran. See 38 C.F.R. § 3.159. VA treatment records dated in December 2016 indicate that the Veteran received treatment from Piedmont Physicians Georgia Lung Buckhead and followed up with a private primary care physician five weeks prior. The most recent private treatment record associated with the claims file is from Piedmont Physicians Georgia Lung dated in November 2013. As such there is an indication that there are additional relevant treatment records regarding the Veteran that have not been obtained and associated with the claims file. On remand the Veteran must be asked to identify all private providers and, after obtaining any necessary authorization, attempts must be made to obtain and associate with the claims file treatment records regarding the Veteran from all identified providers. See id. In a 2011 statement, a private provider said the Veteran was being treated for obstructive sleep apnea and interstitial lung fibrosis resulting from asbestos exposure. The provider noted that the Veteran believed that the asbestos exposure occurred when he was in airplane mechanic in service. It was noted that he worked for the railroad for many years but that he was not exposed asbestos in that job. However, the medical opinion is not adequate because it does not provide rationale for the opinion provided. Therefore, the claims must be remanded for the Veteran to be afforded an adequate VA medical examination. 3. Entitlement to service connection for a sinus disability, to include allergic rhinitis, is remanded. Service treatment records show that the Veteran had complaints of nosebleeds, and nasal congestion. See Service Treatment Record, March 1970. The Veteran reported that he did not have any sinus problems prior to service and that he was exposed to chemicals in service. Post service treatment records show a diagnosis of sinus disability. To date the Veteran has not been afforded a VA examination regarding the etiology of his sinus and allergic rhinitis disability. See, e.g., VA Treatment, April 2013, December 2016. Therefore, the claim must be remanded for the Veteran to be afforded a VA examination. 4. Entitlement to service connection for hypertension is remanded. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension, sleep apnea, and acquired psychiatric disability, is remanded. The Veteran has argued that his hypertension and erectile dysfunction are related to his sleep apnea and acquired psychiatric disability. In a statement dated in March 2021 the Veteran's representative identified literature regarding hypertension and erectile dysfunction. Treatment records show diagnoses of hypertension and erectile dysfunction. To date the Veteran has not been afforded a VA examination regarding the etiology of his hypertension and erectile dysfunction. Therefore, it is necessary to remand the claims to afford the Veteran VA medical examinations. 6. Entitlement to an evaluation in excess of 10 percent pseudofolliculitis barbae is remanded. At the hearing the Veteran's representative reported that the VA examiner in January 2014 did not address disfigurement and that there was no consideration of the severity of the condition during a flare-up. Review of the VA medical examination report dated in January 2014 shows notation of no disfigurement of the head, face or neck. However, there is no discussion of the condition during a flare-up. Furthermore, the indication of flare-ups by the Veteran's representative at the hearing indicates that the Veteran's disability may be more severe than when previously examined. Therefore, it is necessary to remand the claim for the Veteran to be afforded another VA medical examination. 7. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. At the hearing the Veteran reported that his hearing loss disability was more severe than when previously evaluated in a VA medical examination. Therefore, it is necessary to remand the issue to afford the Veteran another VA medical examination to determine the current severity of his hearing loss disability. 8. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left hand is remanded. At the hearing the Veteran's representative argues that the Veteran's peripheral neuropathy of the left hand manifested severe symptoms and identified findings in the VA examinations. Although identifying moderate paresthesias and/or dysesthesias and severe numbness in the left upper extremity, as well as involuntary shaking and movement ranging from slight to severe affecting the left hand, the examiner in 2018 identified only mild incomplete paralysis of the left median nerve. In light of the additional treatment records ordered above, and the inconsistency in the VA examination dated in 2018, the claim must be remanded for the Veteran to be afforded a contemporaneous examination regarding the severity of his peripheral neuropathy of the left hand. 9. Entitlement to a compensable evaluation for left hand burns is remanded. 10. Entitlement to a compensable evaluation, for the period prior to January 8, 2014, and in excess of 10 percent thereafter, for scar, left inguinal region status post hernia repair is remanded. In a February 2014 rating decision, the Agency of Original Jurisdiction (AOJ) denied a compensable evaluation for left hand burns and granted entitlement to an evaluation of 10 percent for scar, left inguinal region status post hernia repair, effective January 8, 2014. In March 2014 a Notice of Disagreement was submitted with regard to all issues included in that decision. In a Report of General Information dated in May 2016, it was noted that the Veteran's attorney agreed to withdraw the appeal for these issues. However, this document is not signed by the Veteran or the Veteran's representative. Thereafter, in a statement dated in November 2016, the Veteran's representative identified these issues as issues on appeal. Therefore, the Board finds that these issues were not effectively withdrawn. To date, a Statement of the Case regarding these issues has not been issued to Veteran. Therefore, the claims are remanded to provide the Veteran was a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). 11. Entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence is remanded. 12. Entitlement to TDIU is remanded. Finally, because a decision on the above issues could significantly impact a decision on the issues of entitlement to a temporary total and entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims for temporary total and TDIU is required. To date the Veteran has not submitted a VA Form 21-8940, Application for TDIU. On remand, he should be asked to submit the completed form. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's VA treatment records for the period from March 2018 to the present. 2. Contact the Veteran and request that he identify all private treatment providers, including Piedmont Physicians Georgia Lung. After obtaining any necessary authorization from the Veteran, make two requests for records regarding the Veteran's treatment from the identified providers, unless it is clear after the first request that a second request would be futile. 3. Ask the Veteran to complete a TDIU claim form (VA Form 21-8940). The AOJ should perform any indicated development. 4. Send the Veteran and his representative a Statement of the Case that addresses the issues of entitlement to a compensable evaluation for left hand burns and entitlement to a compensable evaluation, for the period prior to January 8, 2014, and in excess of 10 percent thereafter, for scar, left inguinal region status post hernia repair. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 5. After completion of the above, schedule the Veteran for examinations (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by appropriate clinicians to determine the nature and etiology of any lung disease, sleep apnea, sinus disability, hypertension, and erectile dysfunction found to be present. Copies of all pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner must answer the following: (a) Identify any currently diagnosed lung disease, sleep apnea, sinus disability, hypertension, and erectile dysfunction. (b) Is it at least as likely as not that any currently diagnosed lung disease, sleep apnea, sinus disability, hypertension, and erectile dysfunction is related to an in-service injury, event, or disease? In rendering the opinions the examiner must discuss any exposure to chemicals and asbestos. In addition, the examiner should comment on the reports of nosebleeds and nasal congestion in service. (c) If any current hypertension and/or erectile dysfunction is not directly related to service, it is it at least as likely as not (1) proximately due to sleep apnea and/or psychiatric disability, or (2) aggravated by sleep apnea and/or psychiatric disability. Aggravation here is defined as any increase in disability. A complete rationale should be provided for all opinions expressed. 6. Thereafter, schedule the Veteran for examinations (or telehealth interviews, reviews of the record, etc., if an in-person examinations are not feasible) by appropriate clinicians to determine the current severity of the Veteran's pseudofolliculitis barbae, bilateral hearing loss, and peripheral neuropathy of the left hand. The examiners 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, using the appropriate DBQ. 7. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard for secondary aggravation opinions is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. 8. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to a temporary total evaluation and entitlement to TDIU. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.