Citation Nr: 21011931 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-60 972 DATE: March 3, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for right upper extremity peripheral neuropathy, prior to May 14, 2018, is denied. Entitlement to an initial rating in excess of 20 percent for left upper extremity peripheral neuropathy, prior to May 14, 2018, is denied. Entitlement to an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy, prior to May 14, 2018, is denied. Entitlement to an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy, prior to May 14, 2018, is denied. Entitlement to a rating of 40 percent, but no higher, for right upper extremity peripheral neuropathy, from May 14, 2018 to January 16, 2019, is granted. Entitlement to a rating of 30 percent, but no higher, for left upper extremity peripheral neuropathy, from May 14, 2018 to January 30, 2020, is granted. Entitlement to a rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy, from May 14, 2018 to January 30, 2020, is granted. Entitlement to a rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy, from May 14, 2018 to January 30, 2020, is granted. Entitlement to a rating in excess of 40 percent for right upper extremity peripheral neuropathy, from January 17, 2019, is denied. Entitlement to a rating in excess of 30 percent for left upper extremity peripheral neuropathy, from January 31, 2020, is denied. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy, from January 31, 2020, is denied. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy, from January 31, 2020, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. Entitlement to an effective date earlier than January 31, 2020 for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 14, 2018, the Veteran’s right upper extremity peripheral neuropathy was manifested by mild symptoms. 2. Prior to May 14, 2018, the Veteran’s left upper extremity peripheral neuropathy was manifested by mild symptoms. 3. Prior to May 14, 2018, the Veteran’s right lower extremity peripheral neuropathy was manifested by mild symptoms. 4. Prior to May 14, 2018, the Veteran’s left lower extremity peripheral neuropathy was manifested by mild symptoms. 5. From May 14, 2018 January 16, 2019, the Veteran’s right upper extremity peripheral neuropathy was manifested by moderate symptoms. 6. From May 14, 2018 January 30, 2020, the Veteran’s left upper extremity peripheral neuropathy was manifested by moderate symptoms. 7. From May 14, 2018 January 30, 2020, the Veteran’s right lower extremity peripheral neuropathy was manifested by moderate symptoms. 8. From May 14, 2018 January 30, 2020, the Veteran’s left lower extremity peripheral neuropathy was manifested by moderate symptoms. 9. From January 17, 2019, the Veteran’s right upper extremity peripheral neuropathy was not manifested by severe symptoms or complete paralysis. 10. From January 31, 2020, the Veteran’s left upper extremity peripheral neuropathy was not manifested by severe symptoms or complete paralysis. 11. From January 31, 2020, the Veteran’s right lower extremity peripheral neuropathy was not manifested by moderately severe symptoms, marked muscular atrophy, or complete paralysis. 12. From January 31, 2020, the Veteran’s left lower extremity peripheral neuropathy was not manifested by moderately severe symptoms, marked muscular atrophy, or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for right upper extremity peripheral neuropathy, prior to May 14, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8513. 2. The criteria for an initial rating in excess of 20 percent for left upper extremity peripheral neuropathy, prior to May 14, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8513. 3. The criteria for an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy, prior to May 14, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy, prior to May 14, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8520. 5. The criteria for a rating of 40 percent, but no higher, for right upper extremity peripheral neuropathy, from May 14, 2018 to January 16, 2019, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8513. 6. The criteria for a rating of 30 percent, but no higher, for left upper extremity peripheral neuropathy, from May 14, 2018 to January 30, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8513. 7. The criteria for a rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy, from May 14, 2018 to January 30, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8520. 8. The criteria for a rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy, from May 14, 2018 to January 30, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8520. 9. The criteria for a rating in excess of 40 percent for right upper extremity peripheral neuropathy, from January 17, 2019, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8513. 10. The criteria for a rating in excess of 30 percent for left upper extremity peripheral neuropathy, from January 31, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8513. 11. The criteria for a rating in excess of 20 percent for right lower extremity peripheral neuropathy, from January 31, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8520. 12. The criteria for a rating in excess of 20 percent for left lower extremity peripheral neuropathy, from January 31, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to May 1969, to include overseas service in Korea. The Veteran appealed an October 2015 rating decision by the Agency of Original Jurisdiction (AOJ). The Veteran appealed the December 2019 Board decision to the Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded the issue regarding service-connection for PTSD to the Board for further proceedings consistent with the JMPR. The case has returned to the Board for further appellate proceedings. In December 2019, the Board remanded the Veteran’s neuropathy and TDIU claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the Veteran submitted a VA Form 10182 in September 2020 seeking an earlier effective date for his grant of entitlement to TDIU pursuant to a July 2020 rating decision. As noted in February 2021 correspondence, this issue regarding TDIU was erroneously docketed at the Board under the Appeals Modernization Act (AMA). The December 2019 Board decision, under the legacy system, remanded the issue of entitlement to TDIU as being intertwined with the increased rating claims regarding the Veteran’s service-connected peripheral neuropathy conditions. As such, the Board will retain jurisdiction over the issue of TDIU in the legacy system. Increased Rating The Board notes a July 2020 rating decision increased the Veteran’s neuropathy ratings to 40 percent for the right upper extremity effective January 17, 2019, 30 percent for the left upper extremity effective January 31, 2020, and 20 percent for the bilateral lower extremities effective January 31, 2020. When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Under Diagnostic Code 8513, a 20 percent disability rating is assigned for mild incomplete paralysis. A 40 percent disability rating is assigned for moderate incomplete paralysis in the major extremity and 30 percent in the minor extremity. A 70 percent disability rating is assigned for severe incomplete paralysis in the major upper extremity and 60 percent in the minor extremity. A 90 percent disability rating is warranted for complete paralysis in the major upper extremity and 80 percent in the minor extremity. Under Diagnostic Code 8520, mild incomplete paralysis warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Descriptive words such as “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The August 2015 and May 2016 VA examination reports noted mild paresthesias and/or dysesthesias in all extremities and overall mild incomplete paralysis. The Veteran stated that his peripheral neuropathy causes numbness, parenthesis, pain, and functional limitations, and that there should be extraschedular consideration. See October 2017 VA Form 9. In Congressional correspondence received May 14, 2018, the Veteran stated that his neuropathy has worsened. In a June 2019 VA Form 10182, the Veteran stated his shoulders, back, and feet are bad. The January 2020 VA examination report noted the Veteran takes medications, is right hand dominate, has moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in all extremities except severe right upper extremity intermittent pain, and overall moderate incomplete paralysis. The January 2020 VA opinion noted that the Veteran’s symptoms progressed from mild to moderate and severe. The Veteran’s representative stated that the ameliorative effects of his medication should be considered. See January 2020 informal hearing presentation (IHP). The Board notes that the Veteran has been taking various medications for his neuropathy conditions. See January 2020 VA examination report. When assigning a disability rating, the Board is required to discount the ameliorative effects of medication unless such effects are explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). If the applicable Diagnostic Code specifically contemplates the effects of medication, Jones is inapplicable. See McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). As the rating criteria here do not contemplate the ameliorative effects of medication, the Board may not deny entitlement to higher ratings on the basis of relief provided by the use of such medication. Nevertheless, asserting that the Veteran’s medication causes ameliorating effects does not require that a new VA examination or opinion be obtained to determine any ameliorating effects. The Board finds that the current record is adequate to assess the severity of the Veteran’s neuropathy conditions. Overall, the Veteran has not provided additional specific details regarding the impact of his medication on his neuropathy conditions. The Board finds the VA examinations of record adequately reflect the severity of the Veteran’s neuropathy conditions. The VA examination reports are also consistent with the medical treatment evidence of record. As such, the Board finds the evidence of record adequately reflects the severity of the Veteran’s neuropathy conditions. The Board notes that medical evidence suggests that the Veteran’s medication stopped working well. See April 2015 VA treatment records. Therefore, any ameliorative impact of the Veteran’s medication must be minimal. 1. Prior to May 14, 2018 As noted above, the VA examination reports prior to May 14, 2018 noted only mild symptoms regarding the Veteran’s neuropathy conditions. The VA examiners also noted normal muscle strength and reflexes. VA treatment records during the period on appeal prior to May 14, 2018 generally only note treatment for pain. The Veteran has not provided additional specific details as to the severity of his neuropathy conditions. As such, the Board finds that the Veteran’s neuropathy was manifested by mild symptoms for the period prior to May 14, 2018. As such, a 20 percent rating for left and right upper extremity neuropathy and a 10 percent rating for left and right lower extremity neuropathy is appropriate, and entitlement to higher rating is denied prior to May 14, 2018. 2. Right Upper Extremity Neuropathy from May 14, 2018 to January 16, 2019 The AOJ increased the Veteran’s right upper extremity neuropathy based on the January 2020 VA examination report and his statement received on January 17, 2019 noting a worsening of the Veteran’s shoulders and back. However, the Veteran also claimed worsening of his neuropathy in an earlier Congressional correspondence received May 14, 2018. Therefore, the Board finds the Veteran’s moderate symptoms noted in his January 2020 VA examination report have manifested since his claim of worsening received May 14, 2018. As such, the Veteran is entitled to a rating of 40 percent for his right upper extremity from May 14, 2018 to January 16, 2019. However, the evidence of record does not support a higher rating. Medical evidence does not note the existence of complete paralysis in the Veteran’s right upper extremity or that he has muscle atrophy. Furthermore, the Veteran’s symptoms more closely approximate that of moderate symptoms. The minimal medical treatment records relating to the Veteran’s peripheral neuropathy generally only note treatment for pain. The January 2020 VA examination report noted the Veteran did not have constant pain. Although the January 2020 VA examiner noted severe intermittent pain, only moderate paresthesias and/or dysesthesias and numbness were noted. The January 2020 VA examiner also noted that the pain is at random. The Veteran has not provided additional statements as to the frequency and intensity of his pain. The Veteran also does not use any assistive devices. As such, a higher than 40 percent rating is denied for the Veteran’s right upper extremity neuropathy from May 14, 2018 to January 16, 2019. 3. Left Upper Extremity and Bilateral Lower Extremity Neuropathy from May 14, 2018 to January 30, 2020 The AOJ increased the Veteran’s left upper extremity and bilateral lower extremity neuropathy based on and effective the date of the January 2020 VA examination report. However, the Board notes it is likely the Veteran possessed such worsening symptoms prior to his January 2020 VA examination. The Veteran also claimed worsening of his neuropathy in an earlier Congressional correspondence received May 14, 2018. Therefore, the Board finds the Veteran’s moderate symptoms noted in his January 2020 VA examination report have been constant since his claim of worsening received May 14, 2018. As such, the Veteran is entitled to a rating of 30 percent for his left upper extremity neuropathy and 20 percent for his bilateral lower extremity neuropathy from May 14, 2018 to January 30, 2020. However, the evidence of record does not support a higher rating. Medical evidence does not note the existence of complete paralysis or that he has muscle atrophy. Furthermore, the Veteran’s symptoms more closely approximate that of moderate symptoms. The minimal medical treatment records relating to the Veteran’s peripheral neuropathy generally only note treatment for pain. The January 2020 VA examination report noted the Veteran did not have constant pain. Intermittent pain, paresthesias and/or dysesthesias, and numbness were only noted to be moderate. The January 2020 VA examiner also noted that the pain is at random. The Veteran has not provided additional statements as to the frequency and intensity of his pain. The Veteran also does not use any assistive devices. As such, a higher than 30 percent rating is denied for the Veteran’s left upper extremity neuropathy, and a higher than 20 percent rating is denied for his bilateral lower extremity neuropathy, from May 14, 2018 to January 30, 2020. 4. From January 31, 2020 From January 31, 2020, the Board finds the Veteran’s neuropathy symptoms are more closely manifested by moderate symptoms. As noted above, the January 2020 VA examination report noted mainly moderate symptoms. The January 2020 VA examiner also noted that the pain is at random. The minimal medical treatment records relating to the Veteran’s peripheral neuropathy generally only note treatment for pain. The Veteran has not provided additional statements as to the frequency and intensity of his pain. The Veteran also does not use any assistive devices. As such, a 40 percent rating for the Veteran’s right upper extremity neuropathy, 30 percent rating for his left upper extremity neuropathy, and 20 percent rating for his bilateral lower extremity neuropathy, from January 31, 2020, is appropriate. The claims are denied. Extraschedular As noted above, the Veteran alleged that his neuropathy conditions should be given extraschedular consideration. An extraschedular rating should be assigned in cases where there is an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321. There is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). Step one is to determine whether the schedular rating adequately contemplates a claimant’s disability picture. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the Rating Schedule. The assigned schedular evaluation would, therefore, be adequate, and no referral to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating would be required. If the schedular criteria do not contemplate the claimant’s level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the claimant’s disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. If the disability picture is exceptional, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether an extraschedular rating is warranted. The Court made clear in Yancy v. McDonald, 27 Vet. App. 484, 494, that the “first Thun element compares a claimant’s symptoms to the rating criteria, while the second step addresses the resulting effects of those symptoms.” (emphasis added). The first and second Thun elements, although interrelated, involved separate and distinct analyses. Id. The Veteran noted that he has “numbness, parenthesis, pain, and various functional limitations.” With this statement, the Veteran essentially describes the symptoms of peripheral neuropathy, as noted in the various VA examinations, which are clearly contemplated by the rating criteria and squarely address peripheral neuropathy under their appropriately assigned Diagnostic Codes. As addressed in the increased rating analysis above, the symptoms of numbness, parenthesis, and pain were already considered. The Veteran does not provide specific details as to the nature of any additional functional limitations created by his neuropathy conditions. Thun element one has therefore not been met and referral for extraschedular consideration is not warranted on that basis alone. The criteria provided under the regulation are not inadequate, and referral for extraschedular consideration is not warranted. REASONS FOR REMAND 1. Acquired Psychiatric Disorder The Veteran has claimed service connection for PTSD, anxiety, and depression. As such, the Board expands the Veteran’s claim to include any acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Overall, the record is unclear as to the nature of the Veteran’s psychiatric disorder during the period on appeal. The various VA examination reports do not diagnose the Veteran with any mental health condition. The September 2020 Court JMPR vacated the issue of service-connection for PTSD because the December 2019 Board decision erroneously discounted a VA psychiatrist’s diagnosis of PTSD. VA treatment records note a diagnosis of PTSD and major depression. See June 2016 and July 2014 VA treatment records. Overall, the diagnosis of the Veteran’s psychiatric disorder is unclear. As such, remand is required for a new VA examination to determine the current nature and etiology of the Veteran’s psychiatric disorder. Importantly, if the Veteran is found to have a current diagnosis of PTSD, the VA examiner should determine whether the Veteran’s PTSD is related to his claimed stressors. The October 2011 VA examiner noted the stressors of serving near the Korean Demilitarized Zone (DMZ) and having rocks and dud grenades thrown at him, seeing North Korean soldiers across the DMZ pointing weapons in his direction, and having two friends dying while the Veteran was not present due to accidental weapon discharge and a motor vehicle accident. See also February 2014 Veteran statement. The Veteran also stated that he was exposed to radiation during chemical school. See November 2012 correspondence. Additionally, the Veteran stated that he was stressed since he cannot have sexual intercourse and must wear pads. See January 2014 Veteran statement. The Veteran is service-connected for residuals of prostate cancer to include erectile dysfunction. Therefore, secondary service-connection should be addressed on remand as well. The Board notes secondary causation opinions were rendered regarding the Veteran’s depression. See May 2014 VA examination reports. However, the Board finds the secondary aggravation opinion inadequate since the rationale provided spoke only about causation. The May 2014 VA examiner’s opinion stated that the Veteran’s depression symptoms were present prior to his service-connected disability. However, aggravation of a disability may occur even though the condition existed prior to another disability. Overall, new etiology opinions that cover all theories of entitlement should be obtained on remand. 2. TDIU A July 2020 rating decision granted entitlement to TDIU effective January 31, 2020. The Veteran claims entitlement to TDIU prior to January 31, 2020 based on his service-connected conditions. See January 2020 IHP. Entitlement to TDIU was asserted during the Veteran’s initial rating claims for his neuropathy conditions. As such, the period on appeal regarding the Veteran’s TDIU claim dates to June 27, 2015, the date the Veteran’s VA Form 21-526b was received claiming service-connection for neuropathy. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The March 2015 VA examination report regarding mental disorders noted the primary reason the Veteran could not work was due to fatigue and difficulty getting along with other. Therefore, the TDIU claim is inextricably intertwined with the issue of service-connection for an acquired psychiatric disorder. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes the Veteran’s representative sought remand for an opinion to determine whether the Veteran’s disabilities preclude gainful employment. See January 2021 IHP. However, entitlement to TDIU is a legal question. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Such an opinion is not required or necessary for the Board to determine entitlement to TDIU. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his acquired psychiatric disorder that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of his claimed acquired psychiatric disability. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the examiner. After the record review and examination of the Veteran, the examiner should identify all psychiatric disorders present at any point during the period on appeal. Then, for each identified condition, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran has PTSD? If PTSD is diagnosed, the examiner should identify the specific stressors that led to the condition. If PTSD is not diagnosed, then the examiner must provide supporting explanation as to why such diagnosis is not appropriate. The examiner is to discuss the diagnosis of PTSD noted in the Veteran’s VA treatment records. B. If the examiner diagnoses a psychiatric disability other than PTSD, the examiner should provide an opinion as to the following: 1. Is it is at least as likely as not that such disorder had its onset in service or is otherwise related to the Veteran’s period of service? The examiner is to discuss the notations of anxiety, depression, and nervousness in the Veteran’s service treatment records (STRs). 2. Is it at least as likely as not that such disorder was caused by his service-connected residuals of prostate cancer to include erectile dysfunction? 3. Is it at least as likely as not that such disorder was aggravated by his service-connected residuals of prostate cancer to include erectile dysfunction? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate 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.