Citation Nr: 21005783 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 20-14 579 DATE: February 2, 2021 REMANDED Entitlement to a disability evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a disability evaluation in excess of 60 percent for residuals of prostate cancer, status post prostatectomy, is remanded. Entitlement to a disability evaluation in excess of 10 percent for residuals of a right thumb infection with arthritis and need for reconstruction, is remanded. Entitlement to a compensable disability evaluation for erectile dysfunction is remanded. Entitlement to a compensable disability evaluation for scar associated with residuals of a right thumb infection is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to an effective date earlier than May 8, 2018, for the award of a 60 percent disability evaluation for residuals of prostate cancer, status post prostatectomy, is remanded. Entitlement to an effective date earlier than May 8, 2018, for the award of service connection for PTSD is remanded. Entitlement to an effective date earlier than May 8, 2018, for the award of service connection for scar associated with residuals of a right thumb infection is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) is remanded. Entitlement to an effective date earlier than May 8, 2018, for the award of a 10 percent disability evaluation for residuals of a right thumb infection with arthritis and need for reconstruction, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1963 to January 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based upon TDIU is part of an increased disability claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, in correspondence dated in December 2020, the Veteran’s attorney indicated that he sought an initial rating in excess of 70 percent for PTSD, to include TDIU, and attached a November 2020 TDIU Vocational Assessment Report. As such, the Board finds that the issue of entitlement to a TDIU has been expressly raised by the record and is thus properly before the Board. The Board further notes that the Veteran’s August 2019 Notice of Disagreement also expressed dissatisfaction with the May 8, 2018, effective date assigned for the award of an increased 10 percent rating for residuals of a right thumb infection with arthritis and need for reconstruction. While the January 2020 Statement of the Case adjudicated the issue of, “Entitlement to an earlier effective date prior to May 8, 2018 for service connection for scar as secondary to the service-connected disability of residuals, right thumb infection with arthritis,” (emphasis added), it did not adjudicate the issue of entitlement to an earlier effective date prior to May 8, 2018, for the award of a 10 percent rating for underlying residuals, right thumb infection with arthritis. This this issue is remanded to the RO so that it can be properly adjudicated in a Statement of the Case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), 38 C.F.R. § 20.904(c). 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, with respect to the issue of entitlement to dependency benefits, the Veteran has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP). Indeed, in his October 2018 Notice of Disagreement, he elected the Traditional Appellate Review Process. 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 his appeal under the existing Legacy Appeals System. The Veteran seeks entitlement to service connection for sleep apnea; entitlement to increased disability evaluations for PTSD, residuals of prostate cancer, residuals of a right thumb infection, erectile dysfunction, and a scar associated with residuals of a right thumb infection; entitlement to earlier effective dates for the grant of entitlement to service connection for PTSD and a scar associated with residuals of a right thumb infection as well as an earlier effective date for the grant of a higher disability evaluation for residuals of prostate cancer; and entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to all claims, the Veteran’s VA treatment records were most recently associated with the claims file in August 2018, over two years ago. However, the January 2020 Statement of the Case indicated that the RO also conducted an electronic review of outpatient treatment records from the Carl T. Hayden Veterans' Administration Medical Center in Phoenix, Arizona, as well as the Southeast VA Clinic in Gilbert, Arizona, dated from November 2012 through January 2020. Additionally, a November 2020 “TDIU Vocational Assessment Report” submitted by the Veteran’s attorney referenced VA treatment records dated as recently as April 2020. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (b); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Here, the Statement of the Case indicates that there are additional VA treatment records dated between August 2018 and April 2020 which have not been associated with the claims file. Therefore, the Board finds that the RO must associate with the claims file any and all outstanding VA treatment records dated from August 2018 to the present. Additionally, with respect to his claims of entitlement to increased disability evaluations for PTSD and residuals of prostate cancer, the Veteran was last provided with VA examinations to assess the severity of these disabilities in July 2018, nearly three years ago. The July 2018 VA Prostate Cancer examination report indicated that the Veteran’s prostate cancer residuals did not impact his ability to work, while the July 2018 VA PTSD examination report indicated that his psychiatric symptomatology resulted in merely occupational and social impairment with reduced reliability and productivity. The July 2018 VA PTSD examination report did not indicate that the Veteran experienced flashbacks, and noted that the Veteran denied any auditory or visual hallucinations. However, since that time, evidence has been added to the record suggesting that the Veteran’s symptomatology has worsened since the July 2018 VA examinations. Specifically, in a November 2020 “TDIU Vocational Assessment Report,” a private rehabilitation counselor hired by the Veteran’s attorney opined that the Veteran was unable to secure and follow substantially gainful employment based solely on his service-connected PTSD and/or prostate condition. Furthermore, this TDIU Vocational Assessment Report referenced a January 2020 VA treatment note indicating a rapid cognitive decline over the last 6 months, as well as an April 2020 VA treatment note indicating that the Veteran experienced occasional flashbacks. As this record at least suggests a worsening in the severity of the Veteran's PTSD and prostate cancer symptomatology since the July 2018 VA examinations, the Board finds that contemporaneous VA examinations should be obtained on remand. See VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Finally, with respect to the Veteran’s claim of entitlement to service connection for sleep apnea, the Board emphasizes that he was never provided with a VA examination relevant to this claim. Rather, the August 2018 Rating Decision and January 2020 Statement of the Case merely denied the claim on the bases that the Veteran’s service treatment records did not contain evidence of sleep apnea and that he was not diagnosed as having sleep apnea until 1998, many years after his separation from service. However, in correspondence dated in August 2020, a private physician hired by the Veteran’s attorney opined that it was more likely than not that the Veteran’s obstructive sleep apnea developed because of his service-connected PTSD and worsened because of the medications needed to treat his service-connected PTSD. As the private physician’s opinion was based on VA treatment records dated in November 2018, December 2018, and April 2020 which have yet to be associated with the claims file, a grant of service connection for sleep apnea based on this opinion is not appropriate at this juncture. However, the August 2020 private opinion is sufficient to trigger VA’s duty to provide the Veteran with a VA examination to determine the probable etiology of his diagnosed sleep apnea, to include whether sleep apnea was caused or aggravated by his service-connected PTSD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(1); 38 C.F.R. § 3.159(c)(4) (holding, in relevant part, that in order to trigger VA’s duty to provide an examination or obtain an opinion, there must be insufficient evidence to decide the case). The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain the Veteran's VA treatment records from the Phoenix VA Health Care System (to include the Carl T. Hayden Veterans’ Administration Medical Center in Phoenix, Arizona, as well as the Southeast VA Clinic in Gilbert, Arizona, and any additional associated outpatient clinics), dated from August 2018 to the present, and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran and his attorney must be notified of any inability to obtain the requested documents. 2. Issue an SOC addressing the issue of entitlement to an effective date earlier than May 8, 2018, for the award of a 10 percent disability evaluation for residuals of a right thumb infection with arthritis and need for reconstruction. Do not return this issue to the Board unless a timely substantive appeal has been filed in response to the SOC. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. 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 attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. If an in-person examination is not feasible given the circumstances surrounding the recent COVID-19 pandemic, then attempt to obtain the necessary medical information and opinions through other means, such as scheduling the Veteran for a virtual interview with a VA examiner or referring the case to the appropriate VA medical professional for a thorough review of the record and medical opinion. 4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected residuals of prostate cancer. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail. If an in-person examination is not feasible given the circumstances surrounding the recent COVID-19 pandemic, then attempt to obtain the necessary medical information and opinions through other means, such as scheduling the Veteran for a virtual interview with a VA examiner or referring the case to the appropriate VA medical professional for a thorough review of the record and medical opinion. 5. Provide the Veteran with an appropriate VA examination to determine whether his diagnosed sleep apnea is related to his period of active duty service, or proximately caused or aggravated by any of his service-connected disabilities. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Based on a review of the evidence of record, the clinical examination results, and with consideration of the Veteran’s statements, the examiner must opine as to whether it is at least likely as not (50 percent probability or greater) that the Veteran's diagnosed sleep apnea had its onset during, or is otherwise etiologically related to, his period of active service. If the above opinion is negative, then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was proximately due to, or aggravated beyond normal progression by, his service-connected PTSD (to include medication prescribed to treat his PTSD) or any other service-connected disability. A complete rationale must be provided for the opinions offered. In providing these opinions, the VA examiner is asked to acknowledge and discuss the August 2020 correspondence in which a private physician opined that it was more likely than not that the Veteran’s obstructive sleep apnea developed because of his service-connected PTSD and worsened because of the medications needed to treat his service-connected PTSD. (Continued on the next page)   The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. The examiner should note that a finding that a disability is "not due to," "not caused by," and "not related to" a service-connected disability is insufficient to address the question of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). If an in-person examination is not feasible given the circumstances surrounding the recent COVID-19 pandemic, then attempt to obtain the necessary medical information and opinions through other means, such as scheduling the Veteran for a virtual interview with a VA examiner or referring the case to the appropriate VA medical professional for a thorough review of the record and medical opinion. Tiffany Dawson 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.