Citation Nr: 21029965 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-11 307 DATE: May 17, 2021 ORDER Entitlement to service connection for insomnia, as secondary to the service-connected major depressive disorder, recurrent moderate, with psychological factors affecting physical condition, including headaches, is granted. Entitlement to service connection for anemia is dismissed. Entitlement to special monthly compensation (SMC) for loss of a creative organ is dismissed. REMANDED Entitlement to a compensable disability rating for a small avulsion fracture of the distal end of the middle phalanx of the left middle finger is remanded. Entitlement to service connection for fibromyalgia, to include as secondary to the service-connected major depressive disorder, recurrent, moderate, with psychological factors affecting the physical condition, including headaches, is remanded. Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for radiculopathy and peripheral neuropathy of the extremities (claimed as numbness and tingling in limbs) is remanded. Entitlement to service connection for Creutzfeldt-Jakob disease is remanded. Entitlement to service connection for mouth trauma and tooth injury is remanded. Entitlement to a disability rating in excess of 30 percent for residuals of pelvic inflammatory disease with uterine fibroids and pelvic pain with anemia is remanded. Entitlement to a disability rating in excess of 30 percent for asthma is remanded. Entitlement to a disability rating in excess of 30 percent for a skin rash with seborrheic dermatitis is remanded. Entitlement to a disability rating in excess of 30 percent for major depressive disorder, recurrent moderate, with psychological factors affecting physical condition, including headaches, is remanded. Entitlement to a disability rating in excess of 30 percent for residuals of left salpingo-oophorectomy with adhesions is remanded. Entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis status post meniscectomy is remanded. Entitlement to a compensable disability rating for scars of the left knee status post meniscectomy, status post salpingo-oophorectomy, is remanded. Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU) is remanded. Entitlement to an effective date earlier than October 14, 2015, for the grant of a 30 percent rating for asthma, is remanded. Entitlement to an effective date earlier than October 14, 2015, for the grant of a 30 percent rating for major depressive disorder, recurrent moderate, with psychological factors affecting physical condition, including headaches, is remanded. Entitlement to an effective date earlier than October 14, 2015, for the grant of service connection for scars of the left knee status post meniscectomy, status post salpingo-oophorectomy, is remanded. Entitlement to an effective date earlier than October 14, 2015, for the grant of a 30 percent rating for skin rash with seborrheic dermatitis is remanded. FINDINGS OF FACT 1. The Veteran's insomnia is proximately due to her service-connected major depressive disorder, recurrent moderate, with psychological factors affecting physical condition, including headaches. 2. The Veteran is already in receipt of service connection for anemia for the entire appeal period. 3. The Veteran is already in receipt of SMC for loss of a creative organ for the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for insomnia, as secondary to the service-connected major depressive disorder, recurrent moderate, with psychological factors affecting physical condition, including headaches, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. There is no question of fact or law to be decided on the issue of entitlement to service connection for anemia. 38 U.S.C. § 7104. 3. There is no question of fact or law to be decided on the issue of entitlement to SMC for the loss of a creative organ. 38 U.S.C. § 7104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1983 to September 1985 and from March 1987 to November 1991. These issues are on appeal from January 2016 and August 2016 rating decisions. In the January 2017 Notice of Disagreement, the Veteran checked the box to indicate that she was appealing the January 2016 and August 2016 rating decisions. In pertinent part, the Veteran appealed the "effective date of award" for residuals of left salpingo-oophorectomy with adhesions, left knee osteoarthritis status post meniscectomy, residuals of pelvic inflammatory disease with uterine fibroids, pelvic pain with anemia, small avulsion fracture of the distal end of the middle phalanx of the left middle finger, and SMC for loss of a creative organ. In the March 2019 Statement of the Cases (SOCs), the Agency of Original Jurisdiction (AOJ) did not address earlier effective dates. In the April 2019 Form 9, the Veteran attempted to appeal, in pertinent part, the issues of earlier effective date for residuals left salpingo-oophrectomy with adhesions and earlier effective date for left knee osteoarthritis status post menisecetomy. However, in the January 2016 and August 2016 rating decisions, the SMC and increased ratings claims were denied by the AOJ. As there was no grant of the benefits for the SMC and increased rating claims in the rating decisions on appeal, there can be no claims for earlier effective dates. Earlier effective date claims for the issues of residuals of left salpingo-oophorectomy with adhesions, left knee osteoarthritis status post meniscectomy, residuals of pelvic inflammatory disease with uterine fibroids, pelvic pain with anemia, small avulsion fracture of the distal end of the middle phalanx of the left middle finger, and SMC for loss of a creative organ are not currently on appeal. In the January 2021 VA Form 21-8940, the Veteran reported that she last worked full-time in December 2007 because of "see attachment." The Veteran attached a VA Problem List, which lists a diagnosis of recurrent major depression and atopic neurodermatitis. The Veteran is currently service connected for major depressive disorder and skin rash with seborrheic dermatitis. The issue of entitlement to a TDIU is raised as part and parcel of the initial rating claims on appeal and has been added to the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to service connection for insomnia, as secondary to the service-connected major depressive disorder, recurrent moderate, with psychological factors affecting physical condition, including headaches. The Veteran contends she currently has insomnia that is a symptom of her service-connected mental disorder. See July 2020 statement. The Veteran's VA current problem list includes a March 2016 diagnosis of "insomnia due to mental disorder." Chronic sleep impairment was found to be a symptom of the service-connected major depressive disorder at the March 2021 VA psychiatric examination. At the May 2021 VA psychiatric examination, the Veteran was diagnosed with major depressive disorder and somatic symptoms disorder. The VA examiner determined that the Veteran's somatic symptoms disorder was a progression of the primary diagnosis (major depressive disorder) in that it appeared to be a consequence of her chronic depression and service-connected medical diagnoses, which had a secondary impact on her overall functioning and led to excessive thoughts and feelings about health concerns. The examiner found that the somatic symptoms disorder was manifested by chronic sleep impairment. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current insomnia is proximately due to her service-connected major depressive disorder, recurrent moderate, with psychological factors affecting physical condition, including headaches. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for insomnia is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for anemia. The Veteran seeks service connection for anemia. However, she is already service connected for anemia. Her anemia is currently service-connected and rated under her residuals of pelvic inflammatory disease with uterine fibroids and pelvic pain with anemia disability, effective since November 22, 1991. As the Veteran is already in receipt of the benefit sought for the entire appeal period, no further adjudication is required at this time, and the claim shall be dismissed. 3. Entitlement to SMC for loss of a creative organ. The Veteran seeks SMC for loss of a creative organ. See October 2015 VA 21-526EZ Form. However, as noted in the March 2019 SOC, the Veteran is already in receipt of SMC for loss of a creative organ since November 22, 1991. As the Veteran is already in receipt of the benefit sought for the entire appeal period, no further adjudication is required at this time, and the claim shall be dismissed. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for a small avulsion fracture of the distal end of the middle phalanx of the left middle finger is remanded. 2. Entitlement to service connection for fibromyalgia, to include as secondary to the service-connected major depressive disorder, recurrent, moderate, with psychological factors affecting the physical condition, including headaches, is remanded. 3. Entitlement to service connection for diabetes mellitus type II is remanded. 4. Entitlement to service connection for radiculopathy and peripheral neuropathy of the extremities (claimed as numbness and tingling in limbs) is remanded. 5. Entitlement to service connection for Creutzfeldt-Jakob disease is remanded. 6. Entitlement to service connection for mouth trauma and tooth injury is remanded. 7. Entitlement to a disability rating in excess of 30 percent for residuals of pelvic inflammatory disease with uterine fibroids and pelvic pain with anemia, is remanded. 8. Entitlement to a disability rating in excess of 30 percent for asthma is remanded. 9. Entitlement to a disability rating in excess of 30 percent for a skin rash with seborrheic dermatitis is remanded. 10. Entitlement to a disability rating in excess of 30 percent for major depressive disorder, recurrent moderate, with psychological factors affecting physical condition, including headaches, is remanded. 11. Entitlement to a disability rating in excess of 30 percent for residuals of left salpingo-oophorectomy with adhesions is remanded. 12. Entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis status post meniscectomy is remanded. 13. Entitlement to a compensable disability rating for scars of the left knee status post meniscectomy, status post salpingo-oophorectomy is remanded. Subsequent to the March 2019 SOC, the AOJ added relevant treatment records and VA examinations pertaining to these issues to the Veteran's electronic claims file. The AOJ did not review this new evidence in the first instance. The Veteran was sent a letter in March 2021 asking if she waived initial AOJ review of this new evidence. The Veteran did not respond; thus, in accordance with the terms of the letter, these issues are remanded for the AOJ to review this new evidence in the first instance. Also, evidence indicates that there may be outstanding relevant VA treatment records. In her October 2015 VA 21-526EZ Form, the Veteran reported that she was treated at various VA Medical Centers (VAMCs) on specific dates. The AOJ obtained some of these VA treatment records, but not all. Formal findings of unavailability of these records are not located in the Veteran's electronic claims file. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Also, regarding the fibromyalgia claim, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran's "possibly fibromyalgia" diagnosis (see June 2019 VA treatment record) is related to the multiple back and joint pain complaints in her service treatment records. In a July 2020 statement, the Veteran further stated that her service-connected major depressive disorder aggravated her pain, which raises the theory of secondary service connection for the fibromyalgia issue. This theory has also not been addressed by a VA examiner. Upon remand, a VA examination and medical opinion must be obtained. Regarding the radiculopathy and peripheral neuropathy claims, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the currently diagnosed radiculopathy and peripheral neuropathy (see March 2017 VA diagnosis of lumbosacral radiculopathy and June 2019 VA diagnosis of peripheral neuropathy) are related to the reported in-service cramps in the legs (see June 1991 exit Report of Medical History). Upon remand, a VA examination and medical opinion must be obtained. Regarding the asthma claim, in a September 2019 VAMC letter, the Veteran was notified that her physician had recently requested home oxygen therapy for her. This suggests a worsening of the Veteran's service-connected disability since her last VA examination in June 2016. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her asthma. Also, while the record contains a contemporaneous April 2021 VA examination regarding the Veteran's left knee osteoarthritis status post meniscectomy, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). At the examination, the examiner found the Veteran's left knee to be damaged and therefore the left knee ranges of motions were not reported. The examiner did not thereafter estimate the ranges of motion of the left knee during repetitive use or during a flare-up. This information is necessary to comply with the recent case law requirements. Upon remand, another VA examination and opinion must be obtained. 14. Entitlement to a TDIU is remanded. A September 2020 letter awarding the Veteran disability benefits indicates that there may be outstanding and relevant Social Security Administration records. A remand is required to allow VA to request these records. Also, upon remand, the AOJ should request the Veteran's tax returns to confirm her claimed unemployment during this appeal period. 15. Entitlement to an effective date earlier than October 14, 2015, for the grant of a 30 percent rating for asthma, is remanded. 16. Entitlement to an effective date earlier than October 14, 2015, for the grant of a 30 percent rating for major depressive disorder, recurrent moderate, with psychological factors affecting physical condition, including headaches, is remanded. 17. Entitlement to an effective date earlier than October 14, 2015, for the grant of service connection for scars of the left knee status post meniscectomy, status post salpingo-oophorectomy, is remanded. 18. Entitlement to an effective date earlier than October 14, 2015, for the grant of a 30 percent rating for skin rash with seborrheic dermatitis is remanded. On October 14, 2015, the Veteran filed increased rating claims for her asthma, major depressive disorder, left knee, and skin rash. The August 2016 rating decision increased the disability ratings for the asthma, major depressive disorder, and skin rash to 30 percent, effective October 14, 2015. The August 2016 rating decision also granted service connection for scars of the left knee, effective October 14, 2015. The Veteran's current effective date is the date of her claim. An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). In this regard, the remand development could significantly impact a decision on the earlier effective date issues. Thus, the earlier effective date claims are inextricably intertwined with the remanded issues. A remand of the earlier effective date claims is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from 1995 to 1999 from the Richmond, Virginia, VAMC. All attempts to obtain these records must be documented. If the records cannot be located, the Veteran must be informed in writing. 2. Obtain the Veteran's VA treatment records for the period from January 2013 to April 2014 from the Las Vegas and the Northwest Vegas VAMCs. All attempts to obtain these records must be documented. If the records cannot be located, the Veteran must be informed in writing. 3. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 4. Ask the Veteran to provide IRS tax returns from 2014 through 2021, and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return," which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2014 thru 2021, and submit them to VA. Tell the Veteran that if she does not have copies of her tax returns for the requested years, she may use the IRS form cited to above. 5. Schedule the Veteran for a VA examination of her claimed fibromyalgia. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Is fibromyalgia at least as likely as not related to service, to include the November 1984 left shoulder complaint, August 1985 abdominal muscle pain, June 1987 left foot pain, November 1987 neck pain, December 1987 right ankle and foot pain, December 1987 right ankle pain, January 1988 right foot pain, February 1988 low back strain, June 1991 Report of Medical History, and July 1991 back pain? Provide a rationale to support the opinion. 6. Schedule the Veteran for a VA examination of her currently diagnosed radiculopathy and peripheral neuropathy of the extremities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Are the radiculopathy and peripheral neuropathy of the extremities at least as likely as not related to service? Is it at least as likely as not that the radiculopathy and peripheral neuropathy of the extremities (1) began during active service, (2) manifested within one year after discharge from service, or (3) were noted during service with continuity of the same symptomatology since service? In forming the opinions, the examiner must address the June 1991 Report of Medical History, in which the Veteran reports cramps in her legs. Provide a rationale to support the opinions. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected asthma. 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. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left knee osteoarthritis status post meniscectomy. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 9. 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 an effective date earlier than October 14, 2015, for the grant of a 30 percent rating for asthma, entitlement to an effective date earlier than October 14, 2015, for the grant of a 30 percent rating for major depressive disorder, recurrent moderate, with psychological factors affecting physical condition, including headaches, entitlement to an effective date earlier than October 14, 2015, for the grant of service connection for scars of the left knee status post meniscectomy, status post salpingo-oophorectomy, and entitlement to an effective date earlier than October 14, 2015, for the grant of a 30 percent rating for skin rash with seborrheic dermatitis, and including all evidence added to the record since the March 2019 SSOC. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shauna M. Watkins, 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.