Citation Nr: 21029972 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 08-12 571 DATE: May 17, 2021 REMANDED The issue of entitlement to increased initial ratings for posttraumatic stress disorder (PTSD), currently rated 30 percent disabling from September 29, 2006, to July 27, 2012, and rated 70 percent disabling thereafter, is remanded. The issue of entitlement to service connection for a respiratory disability, to include diagnosed asthma, is remanded. The issue of entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) for the period prior to January 17, 2009, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1968 to April 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Agency of Original Jurisdiction (AOJ) has adjudicated the PTSD rating issue on appeal with the understanding that it arises from a July 2012 claim and was initially adjudicated in a November 2013 rating decision. However, the Board's review of the record reveals that this appeal properly arises from the September 2011 RO rating decision that granted entitlement to service connection for PTSD (effectuating a September 2011 Board decision) and made the initial rating determination for that award. In March 2012, the Veteran filed a timely notice of disagreement initiating an appeal seeking a higher initial rating for PTSD. That appeal remained open and pending throughout the time that further adjudication led to the July 2017 statement of the case (SOC) addressing the Veteran's PTSD rating, and then the appeal of this issue to the Board. A November 2013 RO rating decision granted an increased 50 percent rating effective from July 27, 2012, the date that the AOJ believed to be the date of the claim being adjudicated. A July 2015 RO / AOJ rating decision granted an increased 70 percent rating effective from July 27, 2012, again based upon the date that the AOJ believed to be the date of the claim being adjudicated. The Board recognizes that the Veteran maintains an appeal for higher ratings throughout the entire rating period for consideration, and that the rating period begins with the September 29, 2006, effective date for the grant of service connection for PTSD. The issue of entitlement to service connection for a respiratory disability is on appeal from a May 2015 RO rating decision. On the record during the February 2018 Board hearing, the undersigned explained to the appellant that the Board will accept a January 2017 written statement from the Veteran as a substantive appeal sufficient to perfect an appeal of the claim for service connection for a respiratory disability following the January 2017 statement of the case. As explained in the Board's prior June 2018 remand, the Board has taken jurisdiction over this claim. The TDIU issue on appeal has been raised in connection with appeals seeking increased ratings, including the PTSD rating issue currently on appeal and also a hepatitis C rating issue that was previously part of this appeal. This case has previously been before the Board, most recently in June 2018, when the Board resolved the hepatitis C rating issue that was then part of the appeal, and the Board remanded to the AOJ each of the remaining issues concerning the PTSD rating, entitlement to service connection for a respiratory disability, and entitlement to a TDIU. During the processing of the Board's June 2018 remand, the AOJ issued a December 2020 rating decision that granted the claim of entitlement to a TDIU effective from January 17, 2009. Because the TDIU issue has been raised during the pendency of increased rating claims with periods for consideration dating back as far as November 4, 2005 (the beginning of the hepatitis C rating period), the rating period for the TDIU issue on appeal includes time prior to January 17, 2009. Accordingly, the TDIU issue remains on appeal to the extent that the December 2020 RO rating decision's award did not grant the claim of entitlement to a TDIU for the period prior to January 17, 2009. Furthermore, the Board finds that the December 2020 RO rating decision granted TDIU on the basis of hepatitis C alone for the complete duration of the period beginning January 17, 2009. The Board finds no aspects of the TDIU issue remain in controversy for the period from January 17, 2009, onward. In February 2018, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. 1. The issue of entitlement to increased initial ratings for PTSD, currently rated 30 percent disabling from September 29, 2006, to July 27, 2012, and rated 70 percent disabling thereafter, is remanded. The Veteran has not been afforded a VA examination to assess the severity of his service-connected PTSD on appeal since October 2013, now more than 7 years ago. Under the circumstances of this case, the Board finds that a new VA examination is warranted to assess the current severity of the Veteran's PTSD. The Board additionally notes that the AOJ has consistently adjudicated this PTSD rating issue on appeal with the mistaken understanding that it arises from a July 2012 claim. However, as discussed above, the Board has determined that the PTSD rating issue on appeal is properly an appeal of the initial rating determination associated with the grant of service connection for PTSD. The rating period for consideration spans back to the September 2006 effective date for the grant of service connection for PTSD. During the processing of this remand, the AOJ shall have the opportunity to adjudicate the PTSD rating issue with consideration of the complete correct rating period for consideration. 2. The issue of entitlement to service connection for a respiratory disability, to include diagnosed asthma, is remanded. The Veteran seeks to establish entitlement to service connection for a respiratory disability, including his diagnosed asthma. The functional impairment for which the Veteran is seeking to establish entitlement to compensation features shortness of breath / a reduced capacity for exertion associated with insufficiency of breathing. A November 2020 VA examination report notes that the Veteran's pertinent functional impairment at issue features: "if he has to work too hard, it gets hard to breathe." The Veteran's VA medical records document that treatment for his service-connected hepatitis C has involved prolonged periods of taking combinations of medications with significant side-effects impacting the Veteran's overall health. Notably, a June 2006 VA medical report lists the possible side-effects of a round of the Veteran's hepatitis C treatment and included "[a]nemia" with instructions indicating that this side-effect may be manifested by "SOB [shortness of breath]." It is notable, then, that a July 2012 VA medical report documents that the Veteran was noted to have actually developed "[a]nemia" as a "likely side effect of hepatitis c treatment." The Veteran's claim of entitlement to service connection for a respiratory disability includes his report of symptoms involving shortness of breath, and his treatment for service-connected hepatitis C has caused a side-effect that is medically indicated to potentially cause or exacerbate shortness of breath. The Board's June 2018 remand directed that the AOJ obtain addendum medical opinions, including with regard to addressing the following inquiry: Is the Veteran's asthma (or any respiratory disability) at least as likely as not aggravated by service-connected disability. In providing this opinion, please specifically discuss, as necessary, the Veteran's VA medical records indicating that the Veteran developed anemia as a likely side-effect of his service-connected hepatitis C treatment and that anemia may cause or exacerbate shortness of breath. The resulting January 2021 VA medical opinion concludes that the Veteran's diagnosed asthma / respiratory impairment featuring shortness of breath was not aggravated by treatment for his service-connected hepatitis C. However, the opinion is not accompanied by an adequate analytical rationale. The January 2021 VA medical opinion's rationale for this conclusion is, in one section of the report: "Veteran was diagnosed with asthma after the diagnosis of Hepatitis C. His having Hep C and treatment for it did not aggravate asthma, which was diagnosed afterward." In a later section, the author added: "Anemia may cause SOB, but this is not always the case and he had SOB symptom[s] before he had anemia. Also it is speculative, not definitive that the anemia was from treatment of Hep C." The Board finds that it is unable to rely upon this opinion to make a final appellate determination regarding the question of whether the Veteran's claimed asthma / respiratory disability featuring shortness of breath has been aggravated by his service-connected hepatitis C. The VA medical opinion acknowledges that "Anemia may cause SOB," but then cites a doubt regarding the likelihood that the Veteran's anemia is actually a manifestation of treatment for his service-connected hepatitis C ("it is speculative, not definitive"). The Board notes that the Veteran's treating medical providers characterized the Veteran's "Anemia" as "[m]ost likely [a] side-effect of hepatitis C treatment," including in a July 2012 VA medical report. That the Veteran's anemia is a product of a service-connected pathology need not be established with "definitive" certainty to be accepted as a sufficiently shown fact for the purposes of the Board's analysis, and the Board finds that the Veteran's medical treatment providers declaration that the anemia is "[m]ost likely" a product of treatment for service-connected hepatitis C is adequate to establish the fact in this case. The Board is not persuaded that the January 2021 VA medical opinion presents a compelling basis for finding otherwise; it merely declares that the fact is not "definitive." Accepting, then, that the evidence in this case reasonably indicates that prescribed treatment of the Veteran's service-connected hepatitis C has resulted in anemia, the Board's appellate review must seek to determine whether the Veteran's asthma / respiratory disability featuring shortness of breath has been aggravated by this aspect of service-connected disability. The January 2021 VA medical opinion appears to acknowledge the plausibility of this theory of entitlement ("Anemia may cause SOB."). The VA medical opinion's negative conclusion relies upon citing (1) anemia does "not always" cause shortness of breath, (2) the "Veteran was diagnosed with asthma after the diagnosis of Hepatitis C," and (3) "he had SOB symptom[s] before he had anemia." The Board does not find that the explanation of rationale makes clear the medical basis for concluding that the service-connected manifestation of anemia, acknowledged by the authoring expert to be capable of producing shortness of breath, is unlikely to have aggravated the Veteran's asthma / respiratory impairment featuring shortness of breath in this case. The Board finds no clear explanation for how the cited facts that (1) the Veteran's hepatitis C diagnosis pre-dated his asthma diagnosis, and (2) that his shortness of breath pre-existed his anemia, may tend to indicate an unlikelihood that the Veteran's asthma impairment of shortness of breath was aggravated by the hepatitis C / anemia. The cited fact that anemia does "not always" cause shortness of breath does not otherwise clarify the matter for the Board's review. The Board notes that the VA medical opinion does not discuss any history of changes / progression (or absence of changes / progression) in the severity of the Veteran's shortness of breath / respiratory impairments in presenting this rationale. The author of the January 2021 VA medical opinion noted, in a November 2020 VA examination report, that the impairment of the Veteran's asthma featured that "if he has to work too hard, it gets hard to breathe." Reduced exertional capacity due to shortness of breath is an impairment central to compensable respiratory impairment, and the possibility that treatment of the Veteran's service-connected hepatitis C has aggravated the Veteran's shortness of breath remains a theory of entitlement to service connection for his respiratory disability that requires informed appellate review. The Board finds that a remand for a more adequate VA medical opinion to support appellate review on this matter is warranted. 3. The issue of entitlement to a TDIU for the period prior to January 17, 2009, is remanded. The Board's June 2018 remand of this case included the issue of entitlement to a TDIU. During the processing of the remand, the AOJ issued a rating decision in December 2020 that granted entitlement to a TDIU effective from January 17, 2009. The AOJ then excluded the TDIU issue from the January 2021 supplemental statement of the case (SSOC), and it has not otherwise been addressed in an SSOC following the Board's prior remand. As explained above, the TDIU issue on appeal has attached as part and parcel of the appeals for increased ratings for PTSD and also for hepatitis C. The rating period for consideration in the PTSD appeal dates back to September 2006, and the rating period for consideration in the hepatitis C appeal dated back to November 2005. Accordingly, the rating period for consideration for the TDIU issue on appeal significantly pre-dates the January 2009 effective date for the award of TDIU made by the AOJ's December 2020 rating decision. It follows, then, that the December 2020 AOJ rating decision did not fully resolve the issue of entitlement to a TDIU with its partial grant of the benefit covering only a portion of the period for consideration. The Board additionally notes that a TDIU based on a single service-connected disability alone may result in additional benefits (i.e., SMC), even if a total rating is otherwise in effect. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). In this case, as shown in the December 2020 rating codesheet, the Veteran has been awarded SMC "on account of hepatitis C a single disability upon which a total individual unemployability rating is based and additional service-connected disability of posttraumatic stress disorder, independently ratable at 60 percent or more from 7/27/2012." The Board has considered whether a question of entitlement to TDIU on a more favorable basis may remain in controversy for the period from January 17, 2009, to July 27, 2012. However, the Board finds that the December 2020 RO rating decision awarded entitlement to TDIU for this period on the basis of a single disability (hepatitis C), considered alone; this is the basis of award indicated by the December 2020 rating decision's explanation of reasons and bases. The Board finds that the Veteran's TDIU award for this period is based upon the most favorable basis, and is a full grant of the benefit sought. Thus, the only period remaining for consideration in the TDIU matter on appeal is the period prior to January 17, 2009. The AOJ did not issue an SSOC addressing the TDIU issue following the Board remand and pertinent new development of the evidentiary record; an SSOC on this matter is necessary. The AOJ is required to issue an SSOC when, pursuant to a Board remand, it develops evidence or cures a procedural defect. 38 C.F.R. § 19.31(c). The only exceptions afforded by the regulation are if: (1) the only purpose of the remand is to assemble records previously considered by the AOJ and properly discussed in a prior statement of the case or SSOC, or (2) the Board specifies in the remand that an SSOC is not required. Id. Neither exception applies here. The Board also must remand the case back to the AOJ and has no discretion on the matter as the provisions of 38 C.F.R. § 19.31 require that the AOJ issue an SSOC if additional pertinent evidence is received and the case has not yet been certified and transferred to the Board for appeal. 38 C.F.R. § 19.31. Because the additional evidence pertains to the issue on appeal and is not merely duplicative of prior evidence, a remand is required to allow the AOJ opportunity to adjudicate this claim in light of the new evidence. 38 C.F.R. §§ 19.31, 19.37. Additionally, the pending adjudication of the remanded issue of entitlement to an increased rating for PTSD (with a rating period dating back to September 2006) could significantly impact a decision on the issue of entitlement to a TDIU prior to January 17, 2009. Accordingly, the issues are inextricably intertwined. A remand of the issue of entitlement to a TDIU is required. The Court has held that two issues are inextricably intertwined when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Board must defer final adjudication of the claim seeking TDIU until adjudication of the rating assignment for PTSD can be completed. A remand of the claim for TDIU is required. During the processing of this remand, the AOJ shall have the opportunity to adjudicate the TDIU issue with consideration of the complete correct rating period for consideration, from November 4, 2005. The matters are REMANDED for the following action: 1. The AOJ should secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his disabilities on appeal. 2. After the record is determined to be complete, schedule the Veteran for a VA examination in order to determine the severity of his service-connected PTSD. The claims file should be made available to the examiner for review in connection with the examination. 3. After the record is determined to be complete, obtain an addendum medical opinion from an appropriate clinician regarding the etiology of the Veteran's claimed respiratory disability, including the diagnosis of asthma. A new direct examination of the Veteran should be scheduled only if deemed necessary to prepare the medical opinion (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). To prepare the addendum opinion regarding the etiology of the respiratory disability, the examiner should review the claims file. The examiner is requested to answer the following: Is it at least as likely as not (a 50 percent or greater degree of probability) that the Veteran's asthma, or any respiratory disability, has been aggravated by (i.e., undergone any increase in disability due to) treatment for his service-connected hepatitis C, to include associated anemia. In providing this opinion, please specifically discuss, as necessary, the Veteran's VA medical records noting that the Veteran developed anemia most likely as a side-effect of his service-connected hepatitis C treatment (including a July 2012 VA treatment report) and that anemia may cause or exacerbate shortness of breath (including a June 2006 VA treatment report). Please take as fact that anemia was a side effect of hepatitis C treatment. The examiner must explain the rationale for all opinions and conclusions in detail, citing to supporting clinical data and/or medical literature and principles, as appropriate. The examiner should take into consideration that the Veteran is competent to report symptom experiences; other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After the record is determined to be complete, and after completing any additional notification and/or development deemed warranted, readjudicate the issues on appeal with consideration of the complete updated contents of the evidentiary record. In addition to the respiratory disability service connection claim on appeal, this readjudication must consider the issues of (1) entitlement to increased ratings for PTSD for all periods from September 29, 2006, to the present; and (2) entitlement to a TDIU for all periods from November 4, 2005, to January 17, 2009. If any benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case, and afforded the appropriate time period for response. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.