Citation Nr: 22018496 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-34 634 DATE: March 29, 2022 REMANDED The issue of a rating higher than 50 percent from November 10, 2015, to present, for service-connected posttraumatic stress disorder (PTSD) is remanded. The issue of a rating higher than 10 percent from November 10, 2015, to present, for a service-connected thoracic spine disability is remanded. The issue of a rating higher than 10 percent from November 10, 2015, to present, for service-connected hypertension is remanded. The issue of a compensable rating from November 10, 2015, to present, for a service-connected right inguinal hernia is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1984 to March 1992 and from December 2002 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision from a Department of Veterans Affairs (VA) regional office (RO). The evidence suggests that the Veteran's service-connected disabilities may have prevented him from working during the appeal period. This has reasonably raised the issue of entitlement to a TDIU. As the issue of a TDIU is part and parcel to a claim for an increased rating, it has been added as an issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In June 2021, the Veteran had a hearing before the undersigned Veterans' Law Judge. A transcript of the hearing is part of the record. 1. The issue of a rating higher than 50 percent from November 10, 2015, to present, for service-connected PTSD is remanded. 2. The issue of a rating higher than 10 percent from November 10, 2015, to present, for a service-connected thoracic spine disability is remanded. 3. The issue of a rating higher than 10 percent from November 10, 2015, to present, for service-connected hypertension is remanded. 4. The issue of a compensable rating from November 10, 2015, to present, for a service-connected right inguinal hernia is remanded. 5. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE ADJUDICATOR: A remand is necessary to fulfill VA's duty to assist the Veteran in obtaining all relevant VA records. Additionally, a new examination is necessary to determine the current severity of the Veteran's thoracic spine disability. In April 2021, the Veteran, through his representative, requested information regarding the education, training, experience, and any disciplinary records of the examiners in the record. VA must assist the Veteran in obtaining these records. Through this remand, the Veteran and counsel are invited to provide the CVs or other relevant information regarding the qualification of the private examiners in the record. Notably, Dr. Miller's CV does not include information about experience or any disciplinary records; no CV for Dr. Yamamoto was provided, and as discussed below there is not a copy of the records provided by Dr. Wilson. Additionally, the record suggests that there are missing VA treatment records regarding the Veteran's treatment by the VA, including steroid injection and nerve ablation therapy for the Veteran's thoracic spine disability. These records have not been uploaded into the claims folder. Notably the most recent VA treatment records are from May 2018. VA must obtain and associate all outstanding VA treatment records with the Veteran's claims folder. Further, the Veteran's representative indicated that an examination report from a Dr. Wilson was submitted regarding the Veteran's PTSD. The electronic claims folder does not contain a copy of this report. The RO should request a new copy of the report and associate it with the claims folder.. Finally, the Veteran testified, and the record supports that his thoracic spine disability has worsened since the last VA examination in March 2016. A new VA examination to determine the current severity of the disability is warranted. THE REMAND DIRECTIVES FOLLOW. 2. Obtain the Veteran's VA treatment records for the period from May 2018 to the present. 3. Provide the Veteran appropriate notice of VA's duties to notify and assist regarding how to substantiate a claim for entitlement to TDIU, to include providing him a VA Form 21-8940 to complete. 4. Provide the Veteran with documentation of the qualifications of the relevant examiners in the claims folder to include information relating to education, training, experience, and any disciplinary records. The record reflects examinations from the following: N.L.L. ANP-BC, who conducted the April 2015 back, hypertension, and hernia examinations. T.G.W. Ph.D., HSPP, who conducted the April 2015 psychological examination. D.K.S. RN, NP, who conducted the March 2016 back, hypertension, and hernia examinations. S.E.M. Ph.D., who conducted the January 2017 psychological examination. The provider who conducts an examination in compliance with the below remand directives. Document all correspondence, including the records provided, in the claims folder. 5. Invite the Veteran and his representative to provide documentation of the qualifications of the relevant private examiners in the claims folder to include information relating to education, training, experience, and any disciplinary records. If necessary, have the Veteran complete the necessary releases and request the information directly from the providers. The record reflects examinations from the following: Dr. Ronald Wilson, who provided a January 2022 medical opinion on the Veteran's thoracic spine. Dr. Christopher Yamamoto, who provided a back examination in January 2022. Dr. Ronald Wilson, who provided a psychological examination. 6. Schedule the Veteran for an examination of his thoracic spine disability by an appropriately qualified VA clinician, and request s/he again review the entire claims file and respond to the inquiry below. If the examiner is not available, arrange for another appropriately-qualified VA examiner to provide an addendum medical opinion to assist in determining the etiology of the Veteran's thoracic spine disability. All appropriate tests, studies and consultations should be accomplished, and all clinical findings should be reported in detail in the narrative portion of the examination report. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If unable to provide a specific measurement without speculation, the examiner must state whether the need is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a problem in the record (additional facts are required), or the examiner (does not have the knowledge or training). 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 unable to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If unable 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 science and the known facts), a problem in the record (additional facts are required), or the examiner (does not have the knowledge or training). THE EXAMINER SHOULD SPECIFICALLY ADDRESS WHETHER THE VETERAN'S THORACIC SPINE DISABILITY IS FUNCTIONALLY THE EQUIVALENT OF ANKYLOSIS. The examiner must consider all relevant lay statements, medical evidence, and medical literature considered in reaching the conclusion. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms, it should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must review the record as found in VA treatment reports and the electronic file. However, the record in substance indicates the following: In April 2015, the Veteran reported that he had to quit his job as an iron worker due to his back and knee disabilities. In August 2015, the Veteran reported a history of a sharp pain in his back followed by his legs feeling numb for 5 minutes. In March 2018, the Veteran reported lower back pain radiating into his right leg with a burning sensation in his right thigh. In June 2021, the Veteran reported that he had been receiving injections in his spine that alleviated his pain for about six months. He stated that he can bend with difficulty, but if he lifts anything he has to rest in bed afterwards. He reported when he plays ball with his grandchildren he has to stay seated in a chair. A January 2022 examination by a chiropractor noted forward flexion and extension were limited to 10 degrees due to pain. A January 2022 opinion stated that the Veteran's thoracic spine disability was functionally the equivalent to favorable ankylosis or greater. 7. Readjudicate the issues of entitlement to higher ratings for PTSD, thoracic spine, hypertension, and hernia, and the issue of entitlement to a TDIU. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, Counsel The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.