Citation Nr: 22008023 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 17-11 832 DATE: February 11, 2022 ORDER Entitlement to service connection for a bilateral hip disability is dismissed. Entitlement to service connection for a bilateral ankle disability is dismissed. REMANDED Entitlement to an initial compensable rating for allergic rhinitis is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to a neck disability, is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hip pain and associated functional impairment are symptoms of his service-connected bilateral lower extremity radiculopathy; the most persuasive evidence is against a finding that separate and distinct hip disabilities exist. 2. The Veteran's bilateral ankle pain and associated functional impairment are symptoms of his service-connected bilateral lower extremity radiculopathy; the most persuasive evidence is against a finding that separate and distinct ankle disabilities exist. CONCLUSIONS OF LAW 1. As bilateral hip pain and associated functional impairment are symptoms of the Veteran's bilateral lower extremity radiculopathy, and he is already being compensated for those symptoms, there is no further error of fact or law at issue. 38 U.S.C. § 7105(d). 2. As bilateral ankle pain and associated functional impairment are symptoms of the Veteran's bilateral lower extremity radiculopathy, and he is already being compensated for those symptoms, there is no further error of fact or law at issue. 38 U.S.C. § 7105(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to June 1989, with additional service in the Marine Corps Reserve from June 1988 to March 1992. These matters come before the Board of Veterans' Appeals (Board) from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board remanded the issues on appeal for further development. (In that decision, the Board also denied service connection for tinnitus and bilateral hearing loss.) In a November 2021 rating decision, the RO granted service connection for thoracolumbar strain with myositis, right and left lower extremity radiculopathy, and asthma (all issues that were previously before the Board). As this action constituted a full grant of the benefit sought regarding those claims, they are no longer before the Board. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2021). With respect to the claims denied herein, neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Moreover, the Veteran was afforded VA Compensation and Pension (C&P) examinations for his claimed hip and ankle disabilities in February 2021, following which it was concluded the relevant symptoms were related to (now service-connected) right and left lower extremity radiculopathy. The Board finds VA's duties under the VCAA have been met as to these claims. Service Connection 1. Entitlement to service connection for a bilateral hip disability 2. Entitlement to service connection for a bilateral ankle disability The Veteran contends he is entitled to service connection for bilateral hip and ankle disabilities. He had previously been awarded service connection for right and left lower extremity radiculopathy of the sciatic nerve; those disorders are rated as 20 percent and 10 percent disabling, respectively, for moderate and mild incomplete paralysis of the lower extremities. See 38 C.F.R. § 4.124A, Diagnostic Code 8520. In February 2021, the Veteran underwent C&P examinations of his hips and ankles, following which an examiner opined the Veteran's hip and ankle pain and associated functional impairment were attributable to radiculopathy and not any other distinct diagnosis. The Board is aware a September 2015 private medical opinion references "DJD" of the hips and ankles without further explanation; however, there is no other medical evidence corroborating this diagnosis. The Veteran's most recent VA problem list is negative for hip- or ankle-specific diagnoses. Notably, the February 2021 C&P reports show normal range of motion of the hips and ankles and no evidence of degenerative changes. As such, while the Veteran is acknowledged to suffer hip and ankle pain, these symptoms are already compensated by his service-connected radiculopathy. The Veteran has not argued he has distinct hip or ankle disabilities warranting separate awards. Thus, the Board finds his claim for service connection for distinct bilateral hip and ankle disabilities must be dismissed. See 38 U.S.C. § 7105(d)(5) (the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed). REASONS FOR REMAND As a preliminary matter, the Board notes that the Veteran identified several private medical providers in possession of potentially relevant evidence in June 2020 correspondence. A subsequent June 2020 internal VA memorandum shows that no efforts to obtain these records could be made because the Veteran had a foreign address. A Deferred Rating Decision dated in September 2020 shows the RO was aware of the need to request these records; a subsequent letter was sent to a single care provider in November 2020. However, it appears there are several providers who still have not been contacted. Moreover, it is unclear if the Veteran was notified of these success or failure of these efforts. He should be provided with the proper notice as well as another opportunity to submit additional, relevant private medical records. See 38 C.F.R. § 3.159(c)(1). 3. Entitlement to an initial compensable rating for allergic rhinitis is remanded. In its June 2018 remand, the Board directed the RO to provide the Veteran a C&P examination for his allergic rhinitis. Although he underwent a respiratory examination in February 2021, the report only dealt with asthma and did not discuss the Veteran's rhinitis. Most importantly, none of the examinations performed subsequent to the Board's remand contained information pertinent to rating the Veteran's rhinitis. See 38 C.F.R. § 4.97, Diagnostic Code 6522. An updated examination must be provided to comply with the Board's remand and ensure a complete record on which to rate the disability. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Entitlement to service connection for a neck disability is remanded. 5. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to a neck disability, is remanded. 6. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran contends he injured his neck, shoulders, and knees in service. In an October 2017 statement, he alleged that his health conditions stemmed "directly from service." February 2021 C&P examination reports reflect his belief that in-service injuries were the cause of his current neck, shoulder, and knee disabilities. In February 2021, the C&P examiner opined it was unlikely the Veteran's neck and knee disabilities were related to service; the examiner based this finding primarily on the lack of in-service medical documentation of treatment. (The Veteran's shoulder problems were deemed to be associated with his neck disability.) Unfortunately, the examiner did not address the Veteran's lay assertions of neck and knee pain and related symptoms since service. Accordingly, the Board finds the VA opinions of record are inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning the onset of symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence). Updated examinations and opinions are needed to determine the etiology of the Veteran's disabilities with consideration of his lay statements. 7. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety is remanded. The Veteran contends he suffered psychological trauma in service and thereafter has struggled with mental health problems. Notably, in June 2020 correspondence, he described failing a psychiatric test in 1992 (although VA has been unable to obtain records of any such evaluation.) In a November 2020 statement, he alleged that in January 1989 his superiors threatened to discharge him under other than honorably conditions; that he was mistreated due to his language difficulties and his ethnic origins; and that he was physically assaulted. He further described being in a state of "hypervigilance and mistrust that still today affects my exaggerated alertness behavior." Notably, the record includes a personnel record, dating from January 1989, which reflects negative reviews of the Veteran's performance by his superiors. In May 2021, the Veteran received a C&P examination; the examiner opined it was unlikely the Veteran's psychiatric problems were related to service. The examiner based this finding primarily on the lack of in-service medical documentation of treatment (although the examiner acknowledged the Veteran's report that he sought mental health support as early as 1997). Unfortunately, the examiner did not address the Veteran's lay assertions of psychological trauma and related symptoms since service. Accordingly, the Board finds the VA opinion is inadequate. See Buchanan, 451 F.3d at 1336. An updated examination and opinion is needed to determine the etiology of the Veteran's acquired psychiatric disorder with consideration of his lay statements. 8. Entitlement to a TDIU is remanded. The Veteran submitted a VA Form 21-8940 in support of TDIU in May 2016 and has elsewhere raised the issue of his alleged unemployability as a result of service-connected disease or injury. See 38 C.F.R. § 4.16(a). However, this issue is inextricably intertwined with the claims remanded above. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009 (en banc) (explaining that claims are inextricably intertwined where the adjudication of once claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he submit any outstanding private medical records in his possession (or, if necessary, provide the necessary authorization for VA to request such records). All efforts to obtain any records identified must be noted in the claims file. The Veteran should be notified of any such efforts as well. 2. Schedule the Veteran for a VA examination to determine the nature and severity of his current allergic rhinitis. All necessary diagnostic testing and evaluation should be performed. The examiner should clarify any residual symptoms associated with this disorder. 3. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran's neck, bilateral shoulder (to include radicular symptoms associated with cervical spine pathology), and bilateral knee disabilities. The examiner is asked to review the claims file and provide the following information, with consideration of the Veteran's lay statements: (a) State whether the criteria for any pertinent diagnoses are met. (b) Opine whether the Veteran's neck (and associated bilateral shoulder) and/or bilateral knee disabilities began during service or are related to an incident of service, or, with respect to arthritis, began within one year of service. (c) The examiner is specifically asked to comment on the Veteran's general contention that all of his health problems are directly related to service. In addition, the examiner should discuss the September 2015 private medical opinion purporting to link the Veteran's physical disabilities with his service. (d) If it is determined there is another likely etiology for the Veteran's disabilities, that should be stated. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. 4. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of the Veteran's current acquired psychiatric disorder/s. The examiner is asked to review the claims file and provide the following information: (a) Clarify whether the criteria for any current diagnoses are met. (b) Opine whether the Veteran's acquired psychiatric disorder/s began during service or are related to an incident of service. (c) The examiner is specifically asked to comment on the Veteran's lay assertions regarding his history of mental health problems, to include his reports (seen, for example, in numerous November 2020 correspondence) of suffering abuse, mistreatment, and physical assault while in service. The examiner is advised the Veteran is competent to report these experiences. (d) If it is determined that there is another likely etiology for these conditions, that should be stated. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ryan, 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.