Citation Nr: 22018271 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-34 921 DATE: March 28, 2022 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to the service-connected disabilities of hypertension and/or hypertensive heart disease, is remanded. Entitlement to service connection for vascular and/or lymphatic disease of the right lower extremity is remanded. Entitlement to service connection for vascular and/or lymphatic disease of the left lower extremity, to include as secondary to the service-connected left knee degenerative joint disease (DJD), status-post arthroplasty with osteotomy and osteomyelitis is remanded. Entitlement to a disability rating in excess of 10 percent for hypertension is remanded. Entitlement to an initial disability rating in excess of 10 percent for hypertensive heart disease is remanded. Entitlement to a disability rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy is remanded. Entitlement to a disability rating in excess of 30 percent for major depressive disorder is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served in the Air Force from August 1981 to July 1991 and thereafter in the Missouri Air National Guard, with active duty from February 2003 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In September 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Preliminary Matters As phrased in the title section, above, the Board has recharacterized the issue of entitlement to service connection for sleep apnea to include as due to hypertension and hypertensive heart disease as articulated in the Veteran's February 2016 Notice of Disagreement. Additionally, the Board has recharacterized the issues of entitlement to service connection for peripheral vascular disease of the right and left lower extremities to "vascular and/or lymphatic disease" of the right and left lower extremities, and to include consideration of the left lower extremity as secondary to the service-connected left knee disorder to better reflect the information contained in the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Vascular and/or Lymphatic Disease of Lower Extremities Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, a December 2015 VA examiner determined that there is no current diagnosis of peripheral vascular disease. However, VA treatment records reflect a current diagnosis of chronic lymphedema. See VA Vascular Surgery Consult dated September 30, 2015; VA Vascular Surgery Outpatient Note dated December 30, 2015; VA Physician Note dated January 2016. Lymphedema can be considered a vascular or lymphatic disease. See Dorland's Illus. Med. Dictionary at 1099 (31st ed. 2007); "University of Pittsburgh Medical Center article "Lymphedema," (https://www.upmc.com/services/heart-vascular/conditions-treatments/lymphedema (last visited/reviewed Jan. 24, 2022). Even if what the Veteran has is not a vascular disease per se, there is evidence of lymphedema of the bilateral lower extremities during active duty service. See Chronological Record of Medical Care entries dated May 3, 2004; Depaul Health Center report dated August 6, 2004. However, the December 2015 VA examiner neither referenced nor discussed this evidence, which is suggestive that the examiner's review of the claims file was cursory at best. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that, in general, a medical report cannot merely draw conclusions from data; rather, it should include "a reasoned medical explanation connecting the two"). Critically, the Board may consider only independent medical evidence to support its findings and may not substitute its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Additionally, the December 2015 medical opinion regarding secondary service connection is favorable, but the rationale for the opinion notes that there is no diagnosis of peripheral vascular disease. See Nieves-Rodriguez, supra. Moreover, the opinion addresses causation, but not aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (indicating an opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation of the nonservice-connected condition). Further, while the service treatment records reference lymphedema in relation to in-service status post left knee arthroplasty with osteotomy, whether the December 2015 VA opinion addresses the Veteran's currently diagnosed chronic lymphedema as secondary to his service-connected left knee disorder is not clear. Therefore, the Board finds the December 2015 VA examination and medical opinion inadequate. See Barr, supra. Accordingly, remand is necessary to provide the Veteran with an adequate examination and to obtain an adequate opinion addressing the etiology of his currently denied vascular disease, to include lymphedema. See Barr, supra. Sleep Apnea The Veteran claims that he has sleep apnea, which is secondary to his service-connected hypertension and/or by the service-connected hypertensive heart disease. See Notice of Disagreement received February 25, 2016; Board hearing transcript dated September 17, 2021 (Hearing Transcript) at pg. 3. The record does not reflect that the Veteran was afforded a VA examination for sleep apnea. Although the Veteran's treatment records of record do not reflect a current diagnosis of sleep apnea, they do reflect that the Veteran was approved for a sleep study in November 2015 to be conducted by a non-VA provider. See VHA Choice Approval for Medical Care dated November 6, 2015. However, the record does not include a non-VA sleep study or diagnosis of sleep apnea. Should competent medical evidence of diagnosis of sleep apnea be associated with the claims file, the Veteran may be entitled to a VA examination or opinion pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Accordingly, remand is necessary to obtain outstanding medical records, if any, and should evidence be received reflecting a current diagnosis of sleep apnea, the Veteran should be afforded a VA examination to determine the etiology of the disorder. See McLendon, supra. Increased Rating Claims A remand is necessary to obtain outstanding treatment records and to provide the Veteran with VA examinations in connection with his claim for increased disability ratings for hypertension, hypertensive heart disease, diabetic peripheral neuropathy of the left lower extremity, and major depressive disorder, and to obtain outstanding treatment records. Notably, the Veteran's VA treatment records have not been updated since 2016. As these treatment records may include relevant evidence concerning the severity of the Veteran's increased rating (and service connection) claims, they must be obtained upon remand. 38 C.F.R. § 3.159(c)(2); see Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Additionally, during the September 2021 Board hearing, the Veteran indicated that he received treatment at Brooke Army Medical Center in San Antonio, Texas, records of which do not appear to have been associated with the claims file. In addition, the Veteran contends that his symptoms associated with each of these disorders are worse than when he was evaluated in December 2015. See Hearing Transcript at pgs. 5-6, 11, 17-20, 21-24, 28-29, and 37. The passage of time between a VA examination and adjudication is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). However, the Veteran, during his September 2021 Board hearing, indicates that the symptoms of each of these disorders are worse than when previously examined, and the Veteran is competent to report observable symptomatology and conversations with his caregivers regarding increased dosages of medications prescribed to treat the symptoms. See Layno, 6 Vet. App. at 470. Accordingly, outstanding treatment records should be obtained and then new VA examinations should be afforded to the Veteran to ascertain the current severity of each of these service-connected disorders. See Snuffer, supra. SMC The Veteran submitted a completed SMC examination form in October 2015 in support of his claim. However, the Veteran's September 2017 Board testimony suggests that physical limitations attributable to his service-connected disabilities may no longer be accurately reflected in the October 2015 examination form. Moreover, the Veteran's claim for SMC based on the need for aid and attendance is also inextricably intertwined with the remanded service connection and increased rating claims. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand the Veteran is to be afforded a VA SMC examination for the purpose of ascertaining his eligibility for SMC aid and attendance. TDIU The Board finds that the issue of unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The record includes conflicting information as to whether a prior grant of TDIU remains in effect. Entitlement to a TDIU was granted effective March 29, 2006 in a December 2007 rating decision. While the AOJ proposed in May 2011 to discontinue entitlement to a TDIU, in October 2011 the AOJ continued entitlement after the Veteran submitted a requested form and the Veteran was determined to be unable to secure or follow a substantially gainful occupation. See Rating Decisions dated May 20, 2011 and October 17, 2011. Nevertheless, rating code sheets dated from April 15, 2013, reflect that TDIU entitlement was discontinued effective July 30, 2012. As such, the matter of entitlement to a TDIU is remanded to the AOJ for development and adjudication should the benefit not presently be in effect. The matters are REMANDED for the following action: 1. Ensure that all outstanding: (i) VA and private medical records, to include any sleep studies; and (ii) Brooke Army Medical Center medical records, are associated with the claims file. Provide the Veteran with the requisite consent and release forms for this purpose. 2. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from non-VA health care providers. Request that the Veteran identify the non-VA provider(s) who diagnosed sleep apnea and, if so diagnosed, provided any other relevant care for this disability. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). If a sleep study or a diagnosis of sleep apnea is in the Veteran's possession, he may submit it. 3. Schedule the Veteran for a VA examination as to the nature and etiology of the Veteran's sleep apnea. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed sleep apnea and/or other sleep disorder(s) that have been present at any point since the commencement of the claim period in October 2015. (b) Provide an opinion as to whether it is at least as likely as not that currently diagnosed sleep apnea and/or other sleep disorder was CAUSED or AGGRAVATED by the service-connected hypertension. (c) Provide an opinion as to whether it is at least as likely as not that currently diagnosed sleep apnea and/or other sleep disorder was CAUSED or AGGRAVATED by the service-connected hypertensive heart disease. *Any increase/aggravation is sufficient; permanent aggravation is NOT required. (d) Provide an opinion as to whether it is at least as likely as not that currently diagnosed sleep apnea and/or other sleep disorder onset during service or is otherwise etiologically related to service. 4. Schedule the Veteran for a VA examination as to the nature and etiology of the Veteran's vascular and/or lymphatic disease of the right and left lower extremity. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed vascular and/or lymphatic diseases of the RIGHT and LEFT lower extremities that have been present at any point since the commencement of the claim period in October 2015, to include chronic lymphedema of the bilateral lower extremities. (b) Provide an opinion as to whether it is at least as likely as not that the currently diagnosed vascular and/or lymphatic disease of the RIGHT and LEFT lower extremities onset during service or is otherwise etiologically related to service. Please differentiate symptoms associated with vascular and/or lymphatic disease of the right and left lower extremities from those associated with diabetic peripheral neuropathy. (c) Provide an opinion as to whether it is at least as likely as not that the Veteran's currently diagnosed vascular and/or lymphatic disease of the LEFT lower extremity was CAUSED or AGGRAVATED by the service-connected left knee degenerative joint disease (DJD), status post arthroplasty with osteotomy and osteomyelitis. *Any increase/aggravation is sufficient; permanent aggravation is NOT required. Although the examiner must review the entire claims file, the examiner's attention is called to the following: (i) Service treatment notes dated May 3, 2004, reflecting diagnosis of lymphedema of the left lower extremity, including a notation attributing lymphedema to left knee surgery/trauma; and (ii) Treatment notes from Depaul Health Center dated August 6, 2004, reflecting a history of lymphedema of the bilateral lower extremities (see VBMS entry with document type "STR - Medical," receipt date 12/14/2015, at page 45 of 63). The examiner must provide a complete rationale for all opinions provided. 5. Schedule the Veteran for a VA examination as to the current severity of the Veteran's service-connected hypertension. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of hypertension since the commencement of the claim period in October 2015. In doing so, the examiner is requested to consider the Veteran's lay statements describing observable hypertensive symptoms. 6. Schedule the Veteran for a VA examination as to the current severity of the Veteran's service-connected hypertensive heart disease. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of hypertensive heart disease since the commencement of the claim period in October 2015. In doing so, the examiner is requested to consider the Veteran's lay statements describing observable symptoms. 7. Schedule the Veteran for a VA examination as to the current severity of the Veteran's service-connected left knee degenerative joint disease (DJD), status post arthroplasty with osteotomy and osteomyelitis. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of left knee degenerative joint disease (DJD), status post arthroplasty with osteotomy and osteomyelitis since the commencement of the claim period in October 2015. In doing so, the examiner is requested to consider the Veteran's lay statements describing observable symptoms. 8. Schedule the Veteran for a VA examination as to the current severity of the Veteran's service-connected diabetic peripheral neuropathy of the LEFT lower extremity. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of diabetic peripheral neuropathy of the left lower extremity since the commencement of the claim period in October 2015. In doing so, the examiner is requested to consider the Veteran's lay statements describing observable symptoms. The examiner must provide a complete rationale for all opinions provided, if any. 9. Schedule the Veteran for a VA examination as to the current severity of the Veteran's service-connected major depressive disorder. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of major depressive disorder since the commencement of the claim period in October 2015. In doing so, the examiner is requested to consider the Veteran's lay statements describing observable symptoms. 10. Thereafter, schedule the Veteran for a VA examination to determine his eligibility for SMC regular aid and attendance. 11. Readjudicate the remanded claims, to include entitlement to a TDIU if such benefit is not already in effect. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.