Citation Nr: 21010099 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-22 728 DATE: February 24, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for service-connected diabetes mellitus, type II (DM II) is remanded. Entitlement to an initial rating in excess of 30 percent for service-connected mild concentric left ventricular hypertrophy is remanded. Entitlement to service connection for sleep apnea, secondary to service-connected mild concentric left ventricular hypertrophy, is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) on the need for aid and attendance or being housebound is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from February 1969 to October 1970 and from August 1975 to July 1990, with service in the Republic of Korea. These matters are before the Board of Veterans’ Appeals (Board) on appeal from February 2012, March 2012, and April 2012 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2018, when the above listed issues were remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran’s claim of whether there was clear and unmistakable error (CUE) in a November 2006 rating decision that denied entitlement to TDIU was denied in an April 2020 Statement of the Case (SOC). The Veteran has not filed a substantive appeal for that issue, and it is not currently before the Board. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims and to afford him every possible consideration. 1. Entitlement to an initial rating in excess of 20 percent for service-connected DM II is remanded. 2. Entitlement to an initial rating in excess of 30 percent for service-connected mild concentric left ventricular hypertrophy is remanded. The Board finds that a remand is necessary to obtain updated VA treatment records. Other than records from September 2010, January 2011, and April 2011, the record does not contain the Veteran’s complete VA treatment records from 2010 to 2015. See Lang v. Wilkie, Fed. Cir. (Decided Aug. 19, 2020) (holding that it is reasonable to presume VA is in the constructive possession of any and all VA medical records for an applicant during the appellate time frame). Because the clinical records of the treatment, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(c). See also 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). The Board also notes that the Veteran’s last examinations of record were in March 2012. The Board finds that new VA examinations are warranted to ascertain the current severity of the Veteran’s service-connected DM and mild concentric left ventricular hypertrophy as it has been almost 9 years since the Veteran underwent a VA examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). 3. Entitlement to service connection for sleep apnea, secondary to service-connected mild concentric left ventricular hypertrophy, is remanded. The Board finds that a VA examination is warranted for the Veteran service connection claim to determine if the Veteran’s sleep apnea is related to his service-connected mild concentric left ventricular hypertrophy. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran’s August 2020 VA treatment records reflect a diagnosis of sleep apnea; the Veteran has asserted that this condition is due to his service-connected mild concentric left ventricular hypertrophy; and has provided lay evidence linking the two; however, there is insufficient evidence of record to decide the claim. Consequently, remand for an examination and etiology opinion is warranted. See id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). 4. Entitlement to a TDIU is remanded. Because the development sought in connection with the Veteran’s claim for higher ratings for his DM II and mild concentric left ventricular hypertrophy disabilities may impact his TDIU claim, the Board finds the issue to be intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). As such, the TDIU claim will be remanded as well. 5. Entitlement to SMC on the need for aid and attendance or being housebound is remanded. Lastly, the Board finds a remand is warranted for the Veteran’s SMC claim as the June 2020 VA examination is inadequate. An adequate medical opinion must be based upon a consideration of the Veteran’s prior medical history and must describe the Veteran’s condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In short, an adequate medical opinion should contain sufficient information such that the Board is not required to rely on its own independent medical judgment. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The June 2020 VA examiner found that the Veteran did not require an assistive device for locomotion. However, a review of the Veteran’s records reflects that he has used a cane and wheelchair at times throughout the appellate period. See March 2011 VA Treatment Records, April 2011 VA Examination, and February 2018 CAPRI. Furthermore, the examiner found that the Veteran needed assistance in bathing and tending to other hygiene needs, but did not note what those needs were and also found that the Veteran did not need assistance in dress and undress, bathing, grooming, keeping self ordinarily clean and presentable, and toileting. As the examiner’s contradictory findings seem to be based on an inaccurate reading of the record, the Board finds that a new examination is warranted. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. Specifically, any and all records from 2010 to 2015 should be sought. The evidence obtained, if any, should be associated with the record. 2. Ask an examiner of appropriate expertise to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. Based on review of the record and conducting an examination (if deemed necessary) of the Veteran, the examiner should respond to the following: a) The examiner should state whether it is at least as likely as not (a 50 percent probability or more) that sleep apnea, began in service, was caused by active service, or is otherwise related to active service. b) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that sleep apnea was caused or aggravated by the Veteran’s service-connected mild concentric left ventricular hypertrophy. • If the examiner finds that the Veteran’s sleep apnea, was aggravated by his service-connected mild concentric left ventricular hypertrophy, then he/she should specify the baseline level of disability of the disability prior to aggravation and the permanent, measurable level of increased impairment due to service-connected mild concentric left ventricular hypertrophy. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 3. The examiner must comment on July 1987 and November 1987 notes in Veteran’s service treatment records which reflect complaints of “tiredness.” The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Arrange to have the Veteran scheduled for VA examinations for the purpose of assessing the current severity of his service-connected DM II and mild concentric left ventricular hypertrophy. The examiner should provide a full description of the Veteran’s associated functional impairments. 5. Arrange to have the Veteran scheduled for a VA housebound and aid and attendance examination. The examiner should review the record. After reviewing the record, the examiner should provide a clear opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran is in need of regular aid and attendance, or is housebound, as a result of functional impairment associated with his all of his service-connected disabilities, without regard to non-service-connected impairments. In particular, the examiner should render specific findings as to whether, in light of impairment due to service-connected disability, the Veteran is able to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he is unable to attend to the wants of nature; and whether he suffers from mental or physical incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. The examiner must also state whether the Veteran’s service-connected disabilities alone render him permanently housebound (i.e., substantially confined to his dwelling or immediate premises). A complete rationale for all opinions should be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefits sought remain denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.