Citation Nr: 21007894 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 10-35 225 DATE: February 11, 2021 REMANDED Entitlement to service connection for hypertension claimed as high blood pressure is remanded. Entitlement to service connection for erectile dysfunction, including as due to service-connected diabetes mellitus, is remanded. Entitlement to service connection for gastritis is remanded. Entitlement to service connection for gastroesophageal reflex disease (GERD) is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome of the right hand is remanded. Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome of the left hand is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a rating in excess of 50 percent for undifferentiated schizophrenia prior to June 3, 2019 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 3, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to January 1968 with additional service in the Reserves. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2009 rating decision. In January 2015, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ). In December 2020, a notice letter was sent to the Veteran with a copy to his attorney indicating that the VLJ who conducted the January 2015 Board hearing was no longer a member of the Board. No response was received. In May 2015, the Board remanded this matter for further development. During the course of the appeal, in a July 2019 rating decision, the Veteran was awarded a 100 percent rating for his undifferentiated schizophrenia, effective June 3, 2019. As the increase does not represent a full grant of the benefits sought, as it does not extend throughout the claims period, the claim remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue now before the Board is whether the Veteran is entitled to a rating in excess of 50 percent for his undifferentiated schizophrenia prior to June 3, 2019. In addition, the Veteran is now in receipt of a 100 percent rating for his psychiatric disability and additional disabilities adding up to 60 percent or more. As the Veteran is in receipt of special monthly compensation (SMC), effective June 3, 2019, his benefits have already been maximized as of that date and his claim for TDIU as of that date is moot. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Board will therefore consider entitlement to TDIU prior to June 3, 2019. 1. Entitlement to service connection for hypertension claimed as high blood pressure is remanded. 2. Entitlement to service connection for erectile dysfunction, including as due to service-connected diabetes mellitus, is remanded. 3. Entitlement to service connection for gastritis is remanded. 4. Entitlement to service connection for GERD is remanded. 5. Entitlement to service connection for tinnitus is remanded. 6. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is remanded. 7. Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome of the right hand is remanded. 8. Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome of the left hand is remanded. 9. Entitlement to a compensable rating for bilateral hearing loss is remanded. 10. Entitlement to a rating in excess of 50 percent for undifferentiated schizophrenia prior to June 3, 2019 is remanded. 11. Entitlement to a TDIU prior to June 3, 2019 is remanded. Remand of the Veteran’s claims is warranted to obtain outstanding treatment records. The Veteran submitted a December 2018 record showing that he has received regular treatment for his psychiatric disorder from a private physician, Dr. Ali, for five years. The Veteran’s June 2019 VA psychiatric examination also notes such treatment. However, the private treatment records are not in the claims file. In addition, the June 2019 VA examiner for diabetes mellitus noted that the Veteran is treated by a private physician and that while those records are not available in the Veteran’s claims file, the records were obtained by fax and reviewed. The June 2019 VA hypertension examiner also referenced private treatment records, including a December 4, 2008 private treatment record with a blood pressure reading. It does not appear that such records are in the claims file. As the outstanding treatment records are potentially relevant to the Veteran’s claims, remand is warranted to obtain such records. As to the Veteran’s claims for a higher rating for hearing loss, and for service connection for tinnitus and erectile dysfunction, the May 2015 Board remand directed that the Regional Office obtain VA examinations and medical opinions. The Veteran was scheduled for examination in June 2019 and failed to report. However, the Veteran’s spouse immediately called to reschedule in June 2019 and followed up in July 2019. The Veteran’s spouse explained that the Veteran was waiting for over four hours for the examination and was not able to remain because his driver could not stay. The claims file shows the spouse’s reports that the Veteran’s service-connected disabilities make it extremely difficult for him to travel. Accordingly, while this matter is on remand, the Veteran should be offered another opportunity to appear for VA examination. Even if in-person examinations are not conducted, VA medical opinions should still be obtained regarding whether the Veteran’s tinnitus is related to service or secondary to his service-connected hearing loss disability and whether his erectile dysfunction is related to service or secondary to his service-connected diabetes mellitus or coronary artery disease disabilities, as directed in the May 2015 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the June 2019 diabetes mellitus VA examiner noted the March 2009 VA examiner’s opinion regarding the etiology of the Veteran’s erectile dysfunction but the rationale remains insufficient. As to the Veteran’s claim for service connection for hypertension, the June 2019 VA examiner opined that the Veteran’s hypertension is not at least as likely as not caused by his service-connected coronary artery disease disability. The VA examiner noted that the Veteran was diagnosed with hypertension before he was diagnosed with coronary artery disease. The VA examiner explained that medical literature clearly states that hypertension contributes to the development of coronary artery disease but that the inverse, in other words, whether coronary artery disease is a risk factor for hypertension and contributes to hypertension, “is not as clear.” The VA examiner did not provide additional clarification or explanation. As the VA examiner’s rationale is inadequate, remand is warranted to obtain additional VA medical opinion. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims, including outstanding treatment records from the Veteran’s private psychiatrist, Dr. Ali, and from the Veteran’s private physician for his diabetes disability. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Make any appropriate efforts to obtain the private treatment records faxed to the June 2019 diabetes mellitus VA examiner and those referenced by the June 2019 hypertension VA examiner, including the December 4, 2008 private treatment record showing a blood pressure reading. 3. Obtain any additional VA treatment records, to include VA treatment records from June 2019 to the present. 4. Schedule the Veteran for appropriate VA examination to determine the current severity of his service-connected hearing loss. The entire claims file should be reviewed by the examiner and any appropriate tests conducted. The Veteran’s symptomatology should be described, including those used in the rating criteria. 5. After the above records are obtained to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s tinnitus: (a) is related to service; or (b) is caused by or aggravated by his service-connected hearing loss. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including the Veteran’s report in January 2009 VA treatment that he has had occasional ringing since in-service noise exposure from howitzers, machine guns, rifles, and grenades without protection. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. After the above records are obtained to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction: (a) is related to service; (b) is caused by or aggravated by his service-connected diabetes mellitus; or (c) is caused by or aggravated by his service-connected coronary artery disease. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 7. After the above records are obtained to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is caused by or aggravated by his service-connected coronary artery disease. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 8. After the above development, and any other development deemed necessary, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.