Citation Nr: 21040901 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-48 294A DATE: July 7, 2021 REMANDED Entitlement to an initial rating in excess of 50 percent prior to March 14, 2017, and in excess of 70 percent since that date for posttraumatic stress disorder (PTSD) with major depressive disorder is remanded. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II with erectile dysfunction is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, right lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, left lower extremity is remanded. Entitlement to an initial compensable rating prior to May 10, 2017, and in excess of 10 percent since that date for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for residuals of a right broken foot is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Army from January 1967 to November 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Of note, the RO initially determined that the Veteran did not timely appeal the December 2012 rating decision. In July 2019, the Board also determined that a timely substantive appeal had not been filed in response to a June 2017 statement of the case (SOC). The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2020, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated the Board's decision. In March 2021, the Board determined that a September 2017 VA Form 9 substantive appeal as to the June 2017 SOC was timely filed. Subsequent to the June 2017 SOC, additional private and VA treatment reports were associated with the claims file and have not been considered by the agency or original jurisdiction (AOJ). With regard to the increased ratings claims, the Veteran has not been afforded a VA examination for the increased rating claims since March 2017, more than four years ago. The additional private and VA treatment reports associated with the claims file reflect treatment for the service-connected PTSD with major depression, diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, and hearing loss and tinnitus complaints. In light of the evidence above and the fact that it has been many years since the Veteran was last evaluated for these claimed disabilities, he should be afforded new, contemporaneous examinations. This is to ensure that the current severity of these disabilities is properly assessed. 38 U.S.C. § 5103A(d); Snuffer v. Gober, 10 Vet. App. 400 (1997). With regard to the claims for service connection for the right elbow, right ankle, and right foot, the Veteran has not been afforded a VA examination to determine the nature and etiology of the claimed disabilities. The Veteran submitted a private medical opinion from his treating clinician M. Akmal, M.D. dated in July 2013. Dr. Akmal indicated that the Veteran's claimed right elbow, right ankle, and right foot disabilities could have as likely as not been caused or aggravated by the Veteran's active duty service. However, Dr. Akmal provided no rationale for the opinion. As the Veteran has reported that he entered service with no problems and has had problems with symptoms related to his claimed disabilities which began during service and have continued since that time, the Board finds the Veteran should be scheduled for VA examinations and VA medical opinions should be obtained in order to determine whether the Veteran is entitled to service connection for his claimed right elbow, right ankle, and right foot disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations to determine the current severity of his service-connected PTSD with major depression, diabetes mellitus type II with erectile dysfunction, peripheral neuropathy of the bilateral lower extremities, and hearing loss and tinnitus. The claims file must be made available to, and reviewed by the examiners. Any indicated studies must be performed. The examiner must provide all information required for rating purposes. 2. Schedule the Veteran for examinations of the right elbow, right ankle, and right foot to determine the diagnoses and the nature and etiology of the claimed disabilities. The claims file must be made available to, and reviewed by the examiner. The examiner must specifically opine as to whether the Veteran has right elbow, right ankle, and right foot disabilities, specifically considering that the Veteran's pain, any abnormal right upper and lower extremity range of motion, and functional impairment, may constitute a disability, even in the absence of an underlying diagnosis. After a review of the evidence of record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any current present right elbow disability, right ankle disability, and broken right foot residuals had its onset during the Veteran's active service, or is otherwise etiologically related to such service. The examiner should specifically state that he or she has considered the Veteran's reports of onset and continuity of his symptoms and medical evidence indicating that the Veteran received treatment for his right elbow, right ankle, and right foot since active service. A rationale for all opinions expressed must be provided. 3. Confirm that the VA examination reports, and all opinions provided comport with this remand and undertake any other development found to be warranted. (Continued on the next page) 4. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.