On appeal from the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of service connection for a dental condition.
2. Whether new and material evidence has been received to reopen a claim of service connection for a left shoulder disability.
3. Entitlement to service connection for a left shoulder disability.
4. Entitlement to a disability rating higher than 10 percent for hypertension.
5. Entitlement to service connection for a right shoulder disability.
6. Entitlement to service connection for sleep apnea.
7. Entitlement to service connection for erectile dysfunction.
8. Entitlement to service connection for a right hand disability.
9. Entitlement to a disability rating higher than 10 percent for spondylosis of the cervical spine.
10. Entitlement to a disability rating higher than 10 percent for residuals of arthroscopic surgery of the right knee.
11. Entitlement to a disability rating higher than 10 percent for arthritic changes of the right knee.
12. Entitlement to a compensable disability rating for a right elbow disability.
13. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
14. Entitlement to non-service connected pension benefits.
REPRESENTATION
Appellant represented by: Mr. Larry Stokes
ATTORNEY FOR THE BOARD
Cheryl E. Handy, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from January 1985 to March 2004.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.
The issues of entitlement to service connection for a low back disability and for a heart disability and a kidney disability secondary to hypertension have been raised by the record, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action.
Please note this appeal has been advanced on the Board's docket pursuant to 38
C.F.R. § 20.900(c) (2012) .. 38 U.S.C.A. § 7107(a) (2) (West 2002).
The issues of entitlement to service connection for a left shoulder disability, a right shoulder disability, sleep apnea, erectile dysfunction, and a right hand disability, entitlement to increased disability ratings for a cervical spine disability, a right elbow disability, and right knee disabilities, and entitlement to TDIU and/or non-service connected pension are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A rating decision in September 2004 denied service connection for a dental condition for both compenc,ation and treatment purposes; the Veteran did not file a timely appeal nor did he submit any additional evidence with respect to this claim within the appeals period.
2. No new or material evidence has been received since the September 2004 rating decision denying service connection for a dental condition.
3. A rating decision in September 2004 denied service connection for a left shoulder disability; the Veteran did not file a timely appeal nor did he submit any additional evidence with respect to this claim within the appeals period.
4. Evidence received since the September 2004 rating decision denying service connection for a left shoulder disability pertains to an unestablished element of the claim and raises a reasonable possibility of substantiating the Veteran's claim.
5. Throughout the appeals period, the Veteran's hypertension has been manifested by a need for continuous medication and a history of diastolic pressures predominantly 100 or more; diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more have not been shown.
CONCLUSION OF LAW
1. The rating decision of September 2004 which denied service connection for a dental disability for both treatment and compensation purposes, and service connection for a left shoulder disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156 (b), 19.32, 20.1103 (2012).
2. Since the September 2004 rating decision, no new and material evidence with respect to the claim of service connection for a dental disability has been received and the claim may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2012).
3. Evidence received since the September 2004 rating decision with respect to the claim of service connection for a left shoulder disability is new and material and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104,
3 .156 (2012).
4. The criteria for a disability rating higher than 10 percent for hypertension have not been met. 38 U.S.C.A .. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.104, Dianostic Code 7101 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONThe Veterans Claims Assistance Act of 2000 (VCAA)
As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3. 326 (a) (2012)
Duty To Notify
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(l); Quartuccio v .. Principi, 16 Vet. App. 183 (2002).
In addition, the notice requirements of the VCAA apply to all elements of a serviceconnection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.
VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
In claims to reopen, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006).
To satisfy the above requirement, the Secretary must consider the bases for the denial in the prior decision and provide the claimant with a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were previously found insufficient.
In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).
Here, the Veteran was sent a letter in July 2008 that provided information as to what evidence was required to substantiate the claim(s) and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. The letter included information regarding the need for new and material evidence to reopen the previously denied claims of service connection as well as information regarding why the claims were originally denied. Also included were the rating criteria for the specific disabilities for which higher disability ratings were sought. Accordingly, no further development is required with respect to the duty to notify.
Duty To Assist
The Board finds that all necessary development has been accomplished, and therefore appellate review may procEied without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and exaimination. The Board has carefully reviewed the submitted written statements by the Veteran and concludes that no available outstanding evidence has been identified. The Board notes that the Veteran had identified multiple private treatment providers and had completed Form 21-4142, the release of information to allow the RO to obtain the relevant medical records. However, shortly thereafter, the Veteran submitted a statement rescinding the release and the Form 21-4142 and insisted that the RO not take the time to obtain these records. The Board has found nothing to suggest that there is any further outstanding evidence with respect to the Veteran's claim.
For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Legal Standard for Reopening a Claim
Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108.
"New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156.
When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992)
In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of that claim.
Dental Claim Evidence Previously Considered
A rating decision issued in September 2004 denied service connection for a dental condition for both compensation and treatment purposes. At the time of that decision, the evidence consisted of the Veteran's application for benefits, his service treatment records, written statements submitted by the Veteran and a VA examination report from June 2004.
The Veteran's service treatment records show that he was treated in service for dental issues, including extraction of the root tip of the #13 tooth and extraction of the #18 tooth, which was considered non-restorable.
The Veteran's written statements indicate that at the time he incurred additional injury to his right knee in 2003 he was heavily medicated for pain caused by dental extractions two weeks prior.
The June 2004 VA examination noted the Veteran's complaint of a fractured tooth, and evidence of dental caries and defective restoration in #30. He denied pain, swelling, lumps, bleeding, numbness, or injury. The examiner noted that the Veteran was missing some teeth and that a crown was needed for tooth #30.
Dental Claim Evidence Newly Received
Since the September 2004 rating decision which denied service connection for a dental condition, the Veteran has not submitted any additional evidence with respect to this claim. The Veteran filed to reopen the claim of service connection in January 2008 noting that he had missing teeth. He identified treatment providers for his various medical conditions, including dental treatment, and provided a release of records or Form 21-4142. In November 2008, he rescinded the release of records and instructed that the RO refrain from soliciting these records.
Dental Claim Analysis
Service connection for compensation purposes is available for dental disabilities that are the result of osteomyelitis or osteoradionecrosis, or due to the loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or due to the loss of teeth due to loss of substance of the upper or lower jaw. 38 C.F.R. § 4.150.
Service connection for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment in accordance with 38 C.F.R. § 17.161. 38 C.F.R. § 3.381. As specified in 38 C.F.R. § 17.161, outpatient dental treatment is provided for conditions falling in one of six classes: Class I covers veterans with a compensable service-connected ental disability or condition; Class II covers one-time treatment for veteans having a noncompensable service-connected dental disability or condition, where the condition results from combat wounds or other service trauma (Class II(a)), where the veteran is enrolled in a homeless veteran program (Class II(b}), where the veteran was a prisoner of war (Class II(c), or were previously treated for noncompensable conditions but denied replacement of missing teeth during service.
(Class IIR (Retroactive)); Class III covers dental conditions professionally determined to be aggravating disabilities from an associated service-conneced condition or disability; Cl.ass IV covers veterans whose service-connected disabilities are rated at 100 percent by schedular evaluation or by reason of individual unemployability; Class V covers veterans who participate in a rehabilitation program; and Class VI covers treatment for veterans who are scheduled for admission or who are otherwise receiving care and services under chapter 17 of 38 U.S.C.A. and have a dental condition that is clinically determined to be complicating a medical condition currently under treatment. 38 U.S.C.A. § 1712; 38 C.F.R. § 17.161.
The Veteran's claim of service connection for a dental condition was initially denied in the September 2004 rating decision. The decision denied service connection for compensation was denied based on the fact that the Veteran was not shown to have any of the disabilities for which compensation is payable under 38 C.F.R. § 4.150. Service connection for treatment purposes was denied based on a failure to demonstrate a condition which met any of the criteria under 38 C.F.R. §§ 3.381 and 17.161.
In order to support reopening of the claim, the Veteran would need to provide evidence which addressed the reasons the cl.aim was previously denied and include new information which raises a reasonable possibility of substantiating the claim. However, not only has no new and material evidence been provided, no additional documentation with the exception of the application to reopen and the identification of treatment providers has been received on this claim. There is no basis to support a reopening of the claim of service connection for a dental condition.
Left Shoulder Evidence Previously Considered
A rating decision in September 2004 denied service connection for a left shoulder disability because there was no evidence of a clinically diagnosed disability. At the time of the September :2004 rating decision, the evidence of record consisted of the Veteran's service treatment records, written statements, the claim for benefits, and the report of a VA examination in June 2004.
The Veteran's service treatment records showed no diagnosis of a left shoulder disability. The Veteran's written statements, while asserting the existence of a left shoulder disability, provided no details regarding any incident in service which could have led to such a disability or any additional information on the claim. The VA examination in June 2004 showed full range of motion with smooth movement, no pain, incoordination, or evidence of weakened movement against resistance. No disability of the left shoulder was diagnosed.
Left Shoulder Evidence Newly Received
Since the September 2004 rating decision, the Veteran filed to reopen the claim in January 2008. He provided a list of physicians who had treated him for his medical conditions and eventually signed a release of information to allow VA to obtain the treatment records, which he subsequently rescinded.
The Veteran has provided medical evidence from Dr. Bash with respect to the various claimed conditions. A letter dated in November 2009 specifically noted that the Veteran had limited range of motion in all planes and crepitus in his shoulders. Based on the history of injury in service provided by the Veteran, Dr. Bash offered the opinion that the Veteran's left shoulder disability was a result of his military service.
Left Shoulder Analysis
The Veteran's claim of service connection for a left shoulder disability was previously denied because there was no evidence of a current disability. In order to support reopening, any evidence received since the September 2004 rating decision would need to demonstrate the existence of a current disability and raise a reasonable possibility of substantiating the underlying claim.
In this instance, the November 2009 written statement from Dr. Bash regarding limitation of motion and crepitus in the Veteran's left shoulder indicates that he may have a left shoulder disability. This evidence is new, in that it was not of record or previously considered during the adjudication of the claim. In addition, it raises the reasonable possibility of substantiating the claim, especially in light of Dr. Bash's opinion linking the Veteran current shoulder problems to his service. In short, the evidence is new and material as defined in 38 C.F.R. § 3.156 and the claim will be reopened. As the nature of any current shoulder disability is unclear, further development is necessary and the claim will be remanded as set forth below.
Assigning Disability Ratings
A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield,, 21 Vet. App. 505, 510 (2007). Here, the evidence indicates a largely stable disability picture for the disability on appeal and staged ratings are not indicted.
Hypertension
The Veteran's hypertensive vascular disease or hypertension is currently rated as 10 percent disabling under Diagnostic Code 7101. Diagnostic Code 7101 provides that hypertension with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control is rated 10 percent disabling. Hypertension with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, is rated 20 percent disabling. Hypertension with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Hypertension with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Note (1) to Diagnostic Code 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104.
On August 2008 VA examination, the Veteran reported having been diagnosed with hypertension in 2003; he was currently taking medications on a daily basis to control his blood pressure. The examiner noted that the Veteran had a recorded blood pressure in January 2008 of 168/108. Pressures on exam were listed as 136/101, 133/99, and 14/86. His heart displayed a regular rhythm, with no evidence of murmurs.
In his November 2009 examination report, Dr. Bash stated that the Veteran's hypertension in service had been manifested with blood pressures in the 200/80 range, and that the Veteran had continued to demonstrate hypertension ever since. Dr. Bash observed that hypertension increases the risk for coronary artery disease and damages the cardiovascular system and concluded that the Veteran likely has an enlarged heart due and renal hypertensive nephropathy due to longstanding hypertension.
In a statement submitted in October 2012, Dr. Bash asserted that the Veteran's hypertension had been significantly incorrectly rated and that the claims file showed the Veteran had atrial enlargement as far back 2009.
In evaluating the Veteran's claim for increased rating for hypertension, the Board has thoroughly reviewed the Veteran's service treatment records. Contrary to Dr. Bash's assertions, there is no evidence that the Veteran's hypertension in service was manifested with blood pressures in the 200/80 range, nor have the Veteran's diastolic blood pressure readings been predominantly in the 120 or greater range. Various physical examinations and EKG tests administered included the following readings: in September 1984, 126/80; in July 1988, 132/76; in April 1997, 130/86; in January 2002, 138/86; and in June 2003, 127/79. The Veteran is currently taking a daily medication to control his blood pressure, which is consistent with the assigned 10 percent disability rating. As a pattern of predominantly higher blood pressures, i.e., diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, has not been shown, a higher disability rating is not warranted. 38 C.F.R. § 4.104.
The Board has noted Dr. Bash's assertions and concerns regarding the possibility of kidney and heart damage as a result of sustained high blood pressure. Such disabilities have not been demonstrated to date, and are not considered within the scope of a proper rating for hypertension. However, these possibilities have been noted and the potential claims referred to the RO for appropriate action.
Extraschedular Rating
Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.32l(b) (1) in the first instance, the Board is not precluded from considering whether the ca.s:e should be referred to the Director of VA' s Compensation and Pension Service.
The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.
If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008).
Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology with respect to his hypertension. The criteria also provide for higher ratings for more severe symptoms. Moreover, the rating schedule provides for separate disability ratings for associated conditions such as heart and kidney disabilities, and those claims have been referred to the RO for appropriate action. Thus, as the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.32l(b) (1).
ORDER
New and material evidence not having been received, the claim of service connection for a dental condition is not reopened and the appeal is denied.
New and material evidence having been received, the claim of service connection for a left shoulder disability is reopened and, to that extent only, the appeal is granted.
Entitlement to a disability rating higher than 10 percent for hypertension is denied.
REMAND
The Veteran's claim of service connection for a left shoulder disability is reopened above, but additional development is still required in order to allow for a full and fair adjudication of the claim. Specifically, there are outstanding potentially relevant private treatment records which should be sought if the Veteran provides a signed release, and a VA examination is indicated. Under 38 C.F.R. § 3.159(c) (4), a VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the statements by Dr. Bash in his letter of November 2009, although not sufficient to justify service connection because there is no specific diagnosis of a current disability, are sufficient to meet the low-threshold standard of McLendon and an examination is warranted.
The Veteran also seeks service connection for a right shoulder disability, sleep apnea, erectile dysfunction, and a disability of the right hand. In January 2008, the Veteran supplied a list of private medical providers who had examined and treated the Veteran with respect to these claimed conditions. In August 2008, he provided signed releases to allow the RO to solicit the medical treatment records for use in adjudicating the claim. In a letter submitted in November 2008, the Veteran withdrew his consent to access his medical records and rescinded the permission given in August 2008. As a result, the RO did not obtain any of the private treatment records which might contain relevant information to the disabilities on appeal here.
Recent communications from the Veteran have expressed frustration that the RO never obtained the private treatment records he identified at the time of his claim. Given the scarcity of relevant medical evidence in the claim, and the conflicting messages communicated by the Veteran regarding whether he wants the RO and the Board to have access to his private medical records, a remand is in order to clarify the situation. If the Veteran is willing to provide a signed release for the records in question, they should be sought and incorporated in the record. The Veteran should be advised that it is his responsibility to cooperate in the development of the claim in accordance with 38 C.F.R. § 3.655 (2012).
In addition, the Veteran seeks increased disability ratings for his cervical spine, right elbow, and right knee disabilities. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§
4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012).
The Board notes that the VA examiners did not offer an opinion with respect to the DeLuca criteria regarding functional impairment, or stated that such an opinion could not be offered without resort to speculation. The Court, in Jones v. Shinseki, has directed that where a medical provider indicates that an opinion cannot be given without resort to speculation, the provider should indicate whether causation cannot be determined because there are several potential etiologies unrelated to service, and should identify the other potential etiologies, should state whether active service is not more likely than any other etiology to cause the current disability, and should indicate whether an opinion on causation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. Jones v. Shinseki 23 Vet. App. 382 (2010) (an examiner must provide a rationale for saying that an opinion could not be provided without resort to speculation, and should provide a statement as to whether there is additional evidence that could enable an opinion to be provided). Additional examinations and opinions should be obtained with respect to the increased ratings claims which specifically address the issues of DeLuca and Jones.
Finally, with respect to the specific claim for either TDIU or non-service connected pension, a VA examination is necessary. The record shows that the Veteran has been out of work since approximately 2005, and Dr. Bash's statements have attributed this to his service-connected disabilities and additional disabilities which should, in Dr. Bash's opinion, be afforded service connection. Additional development is necessary to determine if the Veteran's current disabilities - as well as any disabilities for which service connection may be awarded based on the additional development already described - prevent him for obtaining and maintaining reasonably gainful employment. Specifically, the Veteran should be provided a VA examination which considers the symptoms and effects of each of the service-connected disabilities - including any which may be awarded service connection on remand - both individually and in terms of the Veteran's entire disability picture. At present, the assigned schedular ratings total only 30 percent, which is insufficient to meet the schedular requirements for TDIU. However, on remand, the RO/AMC should consider whether referral for TDIU on an extraschedular basis is warranted. If TDIU is found to be inappropriate in this case, the associated claim of nonserviceconnected pension benefits should also be considered.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38
C.F.R. § 20.900(c) (2012). Expedited handling is requested.)
1. The RO/AMC should send the Veteran a letter asking him to clarify if he wishes to afford VA access to his private treatment records with respect to the issues on appeal. If he would like these records considered in the adjudication of the appeal, he should provide signed releases to enable the RO/AMC to obtain the records or should obtain and submit copies of the relevant records. If the Veteran provides the signed releases, the RO/AMC should obtain the records and associate them with the claims file.
2. After any outstanding records are obtained, the Veteran should be provid,2d an appropriate VA examination to address the following issues:
a) Does the Veteran have a current disability of the left shoulder? If so, is such disability at least as likely as not (probability 50 percent or greater) the result of his military service, to include as secondary to any other injuries or treatment therein, such as the cervical spine disability? The examiner should address any relevant service treatment records and the November 2009 letter from Dr. Bash and the lay statements and history provided by the Veteran.
b) Does the Veteran have a current disability of the right shoulder? If so, is such disability at least as likely as not (probability 50 percent or greater) the result of his military service, to include as secondary to any other injuries or treatment therein, such as the cervical spine disability? The examiner should address any relevant service treatment records and the November 2009 letter from Dr. Bash and the lay statements and history provided by the Veteran.
c) Does the Veteran have a current disability of the right hand? If so, is such disability at least as likely as not (probability 50 percent or greater) the result of his military service, to include as secondary to any other injuries or treatment therein, such as the cervical spine disability? The examiner should address any relevant service treatment records and the lay statements and history provided by the Veteran.
If additional relevant medical records are obtained pursuant to the development set forth above and such records indicate the possibility of sleep apnea and/or erectile dysfunction, the examiner should also address the following:
d) Does the Veteran currently have sleep apnea or any other related condition? If so, is such disability at least as likely as not (probability 50 percent or greater) the result of his military service, to include as secondary to any other injuries or treatment therein? The examiner should address any relevant service treatment records and the lay statements and history provided by the Veteran.
e) Does the Veteran currently have erectile dysfunction or any other related condition? If so, is such disability at least as likely as not (probablilty 50 percent or greater) the result of his military service, to include as secondary to any other injuries or treatment therein such as his hypertension? The examiner should address any relevant service treatment records and the lay statements and history provided by the Veteran.
f) Does the Veteran's current right knee disability, to include arthritis, limitation of motion, and residuals of arthroscopic surgery, merit an increased or separate compensable rating as a result of functional impairment or instability or any other aspect of disability? The examiner should address the factors of DeLuca with respect to functional impairment or provide a rationale for saying that an opinion could not be provided without resort to speculation, and should provide a statement as to whether there is additional evidence that could enable an opinion to be provided. The examiner should also address the significance of prior examination findings of positive Lachrnan's, Steinmann's, and McMurray's tests with respect to the issue of instability in the right knee. The examiner should offer an opinion with respect to the significance, if any, of crepitus in the right knee. Finally, the examiner should address the findings and opinions provided by Dr. Bash.
g) Does the Veteran's current right elbow disability merit a compensable disability based on limitation of motion, cubitus varus or cubitus valgus deformity, flail joint, or any other aspect of disability? Appropriate diagnostic testing, to include X-rays of the elbow to ascertain if arthritis is present in the joint. The examiner should address the significance, if any, of crepitus in the right elbow. The examiner should address the factors of DeLuca with respect to functional impairment or provide a rationale for saying that an opinion could not be provided without resort to speculation, and should provide a statement as to whether there is additional evidence that could enable an opinion to be provided. The examiner should also address the findings and opinions provided by Dr. Bash.
h) Does the Veteran's current cervical spine disability merit an increased rating based on limitation of motion, disc space compression, or any other aspect of disability? The examiner should address the factors of DeLuca with respect to functional impairment or provide a rationale for saying that an opinion could not be provided without resort to speculation, and should provide a statement as to whether there is additional evidence that could enable an opinion to be provided. The examiner should address whether the Veteran experiences flare-ups and any additional limitations resulting from such flare-ups. The examiner should address the significance, if any, of the Veteran's use of a cervical collar when engaging in strenuous activities. The examiner should also address the findings and opinions provided by Dr. Bash, to include the range of motion findings.
i) Do the Veteran's service-connected disabilities, to include any disabilities found to warrant service connection based on this examination, considered singly or in concert result in an inability to obtain and maintain reasonably gainful employment consistent with his education and occupational experience? The examiner should indicate the specific disabilities and accompanying symptoms which preclude such employment.
The examiner should address the opinions rendered by Dr. Bash in November 2009 and October 2012 regarding the Veteran's employability, as well as the Veteran's own statements and the VA examination reports. The examiner is advised that service connection is in effect for the Veteran's right knee, cervical spine, and right elbow disabilities, as well as for hypertension.
The claims file should be provided to the examiner for review and comment and the examiner should indicate in the repot that the claims file was reviewed.
The examiner should address all questions posed to the extent possible and should provide a rationale or explanation for all opinions provided.
3. On completion of the foregoing, the claims should be adjudicated. With respect to the claim of entitlement to TDIU, the RO/AMC should consider both schedular and extraschedular TDIU. If both are found unwarranted, entitlement to non-service- connected pension should be considered. If any aspect of the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
