Citation Nr: 18160403
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-35 265
DATE:	December 26, 2018
ORDER
The application to reopen the claim for service connection for a vision problem is granted.  To this extent only, the appeal is granted.
The application to reopen the claim for service connection for alcohol use and cocaine use disorder is granted.  To this extent only, the appeal is granted.
The application to reopen the previously disallowed claim for service connection for a left ankle condition granted.  To this extent only, the appeal is granted.
The application to reopen the claim for service connection for right lower extremity radiculopathy is granted.  To this extent only, the appeal is granted.
The application to reopen the claim for service connection for left lower extremity radiculopathy is granted.  To this extent only, the appeal is granted.
Entitlement to service connection for a right foot condition is denied.
Entitlement to a rating in excess of 10 percent for post-fracture left fifth metatarsal is denied.
Entitlement to a rating of 50 percent, and no higher, for the period prior to September 5, 2016 for depressive disorder is granted.
Entitlement to a rating of 100 percent for the period starting September 5, 2016 for depressive disorder is granted.
Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is denied.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to September 5, 2016 is granted.
REMANDED
Entitlement to an effective date earlier than September 25, 2014 for the award of service connection for major depressive disorder with a sleep condition is remanded. 
Propriety of severance of service connection for mild compression deformity is remanded.
Propriety of severance of service connection for cervical degenerative disc disease is remanded.
Entitlement to a rating in excess of 20 percent for degenerative disc disease and lumbar strain is remanded.
Entitlement to a rating in excess of 10 percent for degenerative disc disease, arthritis and strain of the cervical spine is remanded. 
Entitlement to service connection for diabetes mellitus is remanded.
Entitlement to service connection for a vision problem is remanded. 
Entitlement to service connection for alcohol use and cocaine use disorder is remanded.
Entitlement to service connection for hypertension is remanded.
Entitlement to service connection for radiculopathy of the left lower extremity is remanded.
Entitlement to service connection for radiculopathy of the right lower extremity is remanded.
Entitlement to service connection for a left ankle condition is remanded.
Entitlement to service connection for a right ankle condition is remanded.
FINDINGS OF FACT
1. The Veteran’s claim for service connection for a vision problem was denied in an unappealed rating decision in August 1982.  Since that time, the Veteran has submitted new and material evidence of a current disability.
2. The Veteran’s claim for service connection for drug abuse was denied in an unappealed rating decision in August 1982.  Since that time, the Veteran has submitted new and material evidence of a nexus.
3. The Veteran’s claim for service connection for a left ankle condition was denied in an unappealed rating decision in August 1982.  Since that time, the Veteran has submitted new and material evidence of a current disability.
4. The Veteran’s claim for right lower extremity radiculopathy was denied in an unappealed rating decision in November 2011.  Since that time, the Veteran has submitted new and material evidence of a nexus.
5. The Veteran’s claim for left lower extremity radiculopathy was denied in an unappealed rating decision in November 2011.  Since that time, the Veteran has submitted new and material evidence of a nexus.
6. The Veteran does not have a current diagnosis of a right foot disability.
7. The Veteran’s post-fracture left fifth metatarsal is of a moderate severity.
8. For the period prior to September 5, 2016, the Veteran’s depressive disorder was characterized by occupational and social impairment with reduced reliability and productivity.
9. For the period starting September 5, 2016, the Veteran’s depressive disorder has been characterized by total occupational and social impairment.
10. The Veteran’s left upper extremity radiculopathy has been characterized by mild incomplete paralysis of the upper radicular group.
11. Prior to September 5, 2016, the Veteran was service-connected with several disabilities collectively rated at 70 percent, including depressive disorder rated at 50 percent.  The Veteran’s service-connected disabilities precluded him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. 
CONCLUSIONS OF LAW
1. The August 1982 rating decision denying service connection for a vision problem, drug use problem and left ankle condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017).
2. New and material evidence having been submitted, the service connection claim for a vision problem is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
3. New and material evidence having been submitted, the service connection claim for alcohol use and cocaine use disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
4. New and material evidence having been submitted, the service connection claim for a left ankle disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
5. The November 2011 rating decision denying service connection for a right and left lower extremity radiculopathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017).
6. New and material evidence having been submitted, the service connection claim for right lower extremity radiculopathy is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
7. New and material evidence having been submitted, the service connection claim for left lower extremity radiculopathy is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
8. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017).
9. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017).
10. The criteria for a rating in excess of 10 percent for post-fracture left fifth metatarsal have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Code 5284 (2017).
11. For the period prior to September 5, 2016, the criteria for a rating of 50 percent, and no higher, for depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2017).
12. For the period starting September 5, 2016, the criteria for a rating of 100 percent for depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2017).
13. The criteria for a rating in excess of 20 percent for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8510 (2017).
14. For the period prior to September 5, 2016, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1973 to December 1979.  He received the Small Arms Expert Marksmanship Ribbon, Air Force Longevity Service Ribbon, National Defense Service Medal, and Air Force Outstanding Unit Award.
The Veteran’s claims for service connection for a vision problem, alcohol and cocaine use disorder, and a left ankle disability were previously denied in an unappealed rating decision in August 1982.  The Regional Office (RO) determined that the Veteran did not have a current vision problem or left ankle disability, and his substance use disorder was the result of the Veteran’s own willful misconduct.
Since that final decision, the Board finds that the Veteran has submitted new and material evidence.  Specifically, the Veteran has submitted medical evidence that shows treatment for a vision problem. See April 2015 CAPRI, p. 7, 8, 29.  Regarding the Veteran’s alcohol and cocaine use disorder, the Veteran has submitted evidence that suggests that this disability may be secondary to his service-connected depression. See January 2017 Correspondence, p. 19.  Concerning his left ankle, the Veteran has submitted evidence of pain and possible arthritic changes. See April 2015 CAPRI, pp. 419, 427, 642.  The Board finds that the newly submitted evidence reasonably raises the possibility that the Veteran’s vision problem, alcohol and cocaine use disorder, and left ankle disability may be etiologically related to his service or a service-connected disability, and the Board will reopen the claims. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim).
Similarly, the Veteran’s claims for service connection for right and left lower extremity radiculopathy were denied in an unappealed rating decision in November 2011.  The RO determined that the Veteran did not have signs of radiculopathy and that his lower extremity impairments were related to either his nonservice-connected diabetes or alcohol use.
Since that final decision, the Board finds that the Veteran has submitted new and material evidence.  Specifically, the Veteran has submitted medical evidence that suggests that he does have lower extremity radiculopathy. See May 2015 VA Examination, p. 6.  The Board finds that the newly submitted evidence reasonably raises the possibility that the Veteran’s right and left lower extremity radiculopathy may be etiologically related to his service-connected back disability, and the Board will reopen the claims. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).
Service Connection for a Right Foot Condition
The Veteran has not submitted any competent evidence that he has a current diagnosis of a right foot disability.  The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain, 21 Vet. App. at 321.  In this case, the Veteran filed his claim for service connection for a right foot disability in September 2014.  The evidence does not indicate that he has had a diagnosis of, or treatment for, any right foot disability at any point since filing the claim.  Moreover, a May 2015 examiner examined the Veteran and found no pain or functional impairment of the right foot. May 2015 VA Examination, pp. 4-5.  Therefore, the Board finds that the Veteran does not have a current right foot disability and the first element of service connection has not been established. See Holton, 557 F.3d at 1366.
In the absence of a current disability, the evidence preponderates against the claim and there is no reasonable doubt to be resolved.  Accordingly, service connection for a right ankle foot must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Brammer, 3 Vet. App. at 225.
Increased Rating for Post-Fracture Left Fifth Metatarsal
The Veteran’s post-fracture left fifth metatarsal has been rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284.  Under DC 5284, a 10 percent rating is assigned for a moderate foot injury; a 20 percent rating is assigned for a moderately severe injury; a 30 percent rating is assigned for a severe injury; and, a 40 percent rating is assigned for actual loss of use of the foot.
The Board notes that words such as “moderate,” “moderately severe,” and “severe,” as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all the evidence to ensure that its decisions are “equitable and just as contemplated by the requirements of the law.” 38 C.F.R. § 4.6.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10.
The Board finds that the evidence demonstrates that the Veteran’s left toe disability is of moderate severity.  The Veteran underwent a VA examination in May 2015.  He did not report any resting foot pain and but described pain in his foot on cold, rainy, wet days; when walking for 10 minutes; and on prolonged standing on hard surfaces.  He indicated that he has flare-ups of foot pain approximately eight times per month and that it takes 12 hours for a flare to return to baseline.  Because of his foot pain, it is difficult for him to perform any activity involving doing anything on cold, rainy, wet days; walking for 10 or more minutes; or, prolonged standing on a hard surface.  The examiner noted pain on movement and pain on weight-bearing as contributing factors to the Veteran’s disability.  The Veteran’s treatment records are silent for complaints or treatment of his left toe disability.
The Board finds that the weight of the evidence preponderates against the Veteran’s claim for a rating in excess of 10 percent.  To receive a higher evaluation, the evidence must demonstrate characteristics of a moderately severe injury, including symptoms such as reduced movement, weakened movement, excess fatigability, or incoordination.  The evidence fails to demonstrate these characteristics.  Moreover, the evidence does not show that the Veteran’s left toe disability requires use of assistive devices and the Veteran further denied resting foot pain.  The Veteran’s disability is characterized by pain that flares up on cold, rainy, wet days; after walking for 10 or more minutes; or, following prolonged standing.  The Board finds that the severity of these symptoms and the resultant impairment are adequately contemplated by the current 10 percent rating.  Accordingly, a rating in excess of 10 percent for post-fracture left fifth metatarsal is not warranted.
Increased Rating for Depressive Disorder
The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App 119 (1999).  In this case, the Veteran’s disability has significantly changed over the course of the appeal period; thus, staged ratings have been assigned accordingly.
The Veteran’s depressive disorder has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434.  Psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders.  A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).
A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.
A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.
For the period prior to September 5, 2016, the evidence shows that the Veteran’s depressive disorder was characterized by occupational and social impairment with reduced reliability and productivity.  The Veteran underwent a VA examination in June 2015.  At this time, the Veteran reported a low mood, isolation, anxiety, chronic sleep impairment, mood swings, interpersonal difficulties, and difficulty establishing and maintaining effective work and social relationships.  There are no treatment records from this stage of the appeal.
In light of the evidence, the Board finds that the Veteran’s disability more closely approximates the picture contemplated by a 50 percent disability rating for the period prior to September 5, 2016.  To receive a higher evaluation, the evidence must demonstrate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; or, symptoms of similar severity.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).  The evidence does not demonstrate these symptoms or symptoms of a similar severity, frequency, and duration.  Instead, the evidence shows that the Veteran’s disability was largely characterized by a depressed mood, isolation, anxiety, chronic sleep impairment, disturbance of motivation and mood, and difficulty establishing and maintaining work and social relationships.  The severity of these symptoms most closely approximates those contemplated by a 50 percent rating.  Accordingly, a rating of 50 percent, and no higher, for depressive disorder for the period prior to September 5, 2016 is warranted.
For the period starting September 5, 2016, the evidence shows that the Veteran’s depressive disorder has been characterized by total occupational and social impairment.  In January 2017, the Veteran submitted a September 2016 assessment from a private clinician which reported that the Veteran’s depressive disorder symptoms include depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; speech intermittently illogical, obscure or irrelevant; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control; grossly inappropriate behavior; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living; and, disorientation to time or place.  See January 2017 Correspondence, pp. 13, 15-17.  
The Board finds that the evidence preponderates in favor of a finding of entitlement to a rating of 100 percent for the period starting September 5, 2016.  The evidence demonstrates that the Veteran suffers from total occupational and social impairment due to symptoms such as gross impairment in thought processes, grossly inappropriate behavior, intermittent inability to perform activities of daily living, and disorientation to time or place.  Thus, a rating of 100 percent for depressive disorder for the period starting September 5, 2016 is warranted.
Increased Rating for Left Upper Extremity Radiculopathy
The Veteran’s left upper extremity radiculopathy has been rated under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8510.  The Veteran is right-handed. See May 2015 VA Examination, p. 2.  Under DC 8510, a 20 percent rating is assigned for mild incomplete paralysis of the upper radicular group in the non-dominant extremity; a 40 percent rating is assigned for moderate incomplete paralysis; a 50 percent rating is assigned for severe incomplete paralysis; and, a 70 percent rating is assigned for complete paralysis.  The terms “mild,” “moderate” and “severe” are not defined in the Rating Schedule and the Board must evaluate all the evidence to arrive at an equitable and just decision. 38 C.F.R. § 4.6.
The Veteran underwent an examination in May 2015.  The examiner observed mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the Veteran’s left upper extremity.  The Veteran had normal muscle strength testing, hypoactive deep tendon reflexes and normal sensory examination results in the left upper extremity. 
The Board finds that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy.  To receive a higher evaluation, the evidence must show moderate incomplete paralysis of the upper radicular group in the non-dominant extremity.  The objective medical evidence does not indicate that the Veteran has experienced moderate constant pain, moderate intermittent pain, moderate paresthesias/dysesthesias or moderate numbness.  Moreover, the Veteran’s sensation to light touch and muscle strength were normal on examination.  The Veteran’s mild intermittent pain, mild paresthesias/dysesthesias, mild numbness and hypoactive deep tendon reflexes are contemplated by the assigned 20 percent rating.  Thus, a rating in excess of 20 percent for left upper extremity radiculopathy is not warranted.
TDIU Prior to September 5, 2016
Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).
For the period prior to September 5,2 016, the Veteran meets the schedular rating requirements for a TDIU, see 38 C.F.R. § 4.16(a), as he has two or more service-connected disabilities, with at least one disability ratable at 40 percent or more (i.e., depressive disorder), and a combined disability rating of 70 percent.  The remaining (and dispositive) question is whether the service-connected disabilities rendered the Veteran incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience for the relevant period of time. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
The Veteran has contended that his service-connected disabilities prevent him from securing or following substantially gainful employment, and that he became too disabled to work in November 2006. See Veteran’s Application for Increased Compensation Based on Unemployability, p. 1.  The Veteran completed one year of college but has no other formal education or training.  The Veteran’s post-service employment history consists of work in maintenance and housekeeping. 
Turning to the impact of the Veteran’s service-connected disabilities, the Veteran was service connected for depressive disorder, degenerative disc disease and lumbar strain, left upper extremity radiculopathy, post-fracture left fifth metatarsal and degenerative disc disease of the cervical spine for the period prior to September 5, 2016.  Because of his depressive disorder, the Veteran had a depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, and difficulty establishing and maintaining work and social relationships. See June 2015 VA Examination, p. 12.  The Veteran’s back, neck and left toe disabilities rendered it difficult for the Veteran to perform any activity involving prolonged sitting, standing, bending, walking or lifting more than 10 pounds. See May 2015 VA Examination, p. 3; May 2015 VA Examination, p. 2; May 2015 VA Examination, p. 8.  
The Board finds that the impact of the Veteran’s depressive disorder, back disability, neck disability and left toe disability made it impossible for him to secure and maintain substantially gainful employment for the period prior to September 5, 2016.  As noted by the evidence of record, the Veteran suffered from depressed mood, chronic sleep impairment, disturbance of motivation and mood, and difficulty establishing and maintaining work relationships.  Physical impairments caused by his back, neck and left toe disabilities impact his ability to perform physical work for sustained periods of time.  The Veteran’s employment history consists solely of work that would require him to perform physical work for sustained periods of time.  Moreover, the Veteran has no additional specialized education, training, or other experience that suggests he may be able to secure gainful employment outside of his past work in maintenance and housekeeping, to include sedentary work.  Many of the symptoms that impact the Veteran’s ability to successfully work in maintenance and housekeeping, such as depressed mood, chronic sleep impairment, difficulty establishing and maintaining work relationships, and an inability to perform any physical activity for significant period of time, would impact the Veteran’s ability to successfully perform work in most occupational settings.
Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).  Affording the Veteran the benefit of the doubt, the Board finds that the Veteran was unable to maintain a substantially gainful occupation as a result of his service-connected disabilities prior to September 5, 2016, and an award of TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
REASONS FOR REMAND
Earlier Effective Date for the Award of Service Connection for Depressive Disorder
In the August 2015 notice of disagreement, the Veteran disagreed with the effective date of his award of service connection for depressive disorder.  The RO has not issued a statement of the case (SOC) for this issue.  The Board takes jurisdiction of this claim for the sole purpose of remanding for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999).
Propriety of Severance of Service Connection for Mild Compression Deformity and Cervical Degenerative Disc Disease
The Veteran was previously in receipt of separate ratings for degenerative disc disease of the thoracolumbar spine (DC 5003) and mild compression deformity (5299-5239).  He was also in receipt of separate ratings for degenerative disc disease of the cervical spine (DC 5003) as well as mild compression deformity of T11, T12, L1 (DC 5242).  In August 2007, the RO proposed to sever service connection for degenerative disc disease of the thoracolumbar spine because the Veteran was already in receipt of a higher evaluation for mild compression deformity because the grant of both evaluations violated the rule against pyramiding. See 38 C.F.R. § 4.14.  In May 2007, the RO proposed to sever service connection for degenerative disc disease of the cervical spine because the two ratings compensated the Veteran for the same disability.  In June 2008, the RO issued a rating decision effectuating the reductions and the Veteran timely disagreed. See June 2008 Correspondence, pp. 1-4.  The RO has yet to issue a statement of the case for these issues.  Accordingly, the Board takes jurisdiction of these claims for the purpose of remanding them for issuance of an SOC. See Manlincon, 12 Vet. App. at 240.
Increased Ratings for Degenerative Disc Disease and Lumbar Strain and Degenerative Disc Disease, Arthritis and Strain of the Cervical Spine
The Veteran underwent VA examinations in May 2015.  The Veteran reported experiencing flare-ups of his back and neck disabilities; however, the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limit functional abilities during flare-ups without resorting to mere speculation. May 2015 VA Examination, p. 4; May 2015 VA Examination, p. 4.  On remand, the RO should obtain an opinion that addresses any additional functional impairment, including loss of range of motion, that results from a flare-up of the Veteran’s back and neck disabilities. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).
Service Connection for Diabetes Mellitus
The Veteran’s Certificate of Discharge indicates that the Veteran has one year of foreign service. See November 2014 Certificate of Discharge, p. 1.  However, the location of this service is not apparent from the military personnel records associated with the claims file.  This leads the Board to conclude that there are outstanding personnel records from the Veteran’s active duty service.  On remand, the RO should take appropriate measures to secure any outstanding personnel records.
Service Connection for a Vision Problem
The has provided competent evidence of a current disability, see April 2015 CAPRI, pp. 7-8, 29, and contends that his current disability is the result of a flash burn to the eyes experienced during his active duty service. See November 2014 STRs, pp. 12-13.  There is no opinion of record that addresses whether the Veteran’s current disability was caused or aggravated by his active duty service.  Accordingly, the RO should obtain a nexus opinion on remand. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
Service Connection for Alcohol and Cocaine Use Disorder
In a January 2017 correspondence, a private clinician indicated that the Veteran’s alcohol and cocaine use disorder may be aggravated by his service-connected depressive disorder. January 2017 Correspondence, pp. 12, 19.  However, there is insufficient evidence of record to demonstrate that an increase in disability has occurred.  On remand, the RO should obtain an opinion that clarifies whether the Veteran’s alcohol and cocaine use disorder has been aggravated by his service-connected depressive disorder.
Service Connection for Hypertension
The has provided competent evidence of a current disability, see April 2015 CAPRI, pp. 7, and contends that his current disability had its onset or is otherwise etiologically related to his active duty service. See November 2014 STRs, pp. 11, 22.  There is no opinion of record that addresses whether the Veteran’s current disability was caused or aggravated by his active duty service.  Accordingly, the RO should obtain a nexus opinion on remand. See McLendon, 20 Vet. App. at 81.
Service Connection for Bilateral Lower Extremity Radiculopathy 
The evidence of record is conflicting as to whether the Veteran’s lower extremity disability is radiculopathy secondary to his service-connected back disability, or neuropathy secondary to his nonservice-connected diabetes mellitus.  On remand, the RO should obtain an opinion that clarifies the Veteran’s bilateral lower extremity diagnosis.
Service Connection for Bilateral Ankle Disabilities
The May 2015 examiner concluded that the Veteran did not have an ankle disability after reviewing the claims file. May 2015 VA Examination, p. 4.  However, the examiner failed to discuss previous notations in the Veteran’s claims file that suggest possible arthritic changes, weakened movement and left ankle pain. See April 2015 CAPRI, pp. 419, 427, 642.  On remand, the Veteran should be afforded another examination to ascertain the nature and etiology of his bilateral ankle disabilities. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical opinions must address the relevant facts).
The matters are REMANDED for the following action:
1. Provide the Veteran with a statement of the case concerning the claim for an earlier effective date for the award of service connection for depressive disorder; propriety of severance of service connection for mild compression deformity; and, propriety of severance of service connection cervical degenerative disc disease.  The SOC must instruct the Veteran to file a substantive appeal in response to the SOC to complete the steps necessary to perfect his appeal of these claims to the Board.
2. Take appropriate measures to secure any outstanding personnel records, particularly those which demonstrate where the Veteran’s foreign service occurred.  All efforts to obtain the outstanding personnel records must be documented.  If the RO is unable to obtain the outstanding records, a formal finding on unavailability must be associated with the claims file.
3. Schedule the Veteran for an examination to ascertain the severity of the Veteran’s service-connected back and neck disabilities.  All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion.
(a) The examiner should describe all symptomatology due to the Veteran’s service-connected back and neck disabilities.
(b) The examiner must comment as to whether there is pain, weakened movement, excess fatigability, or incoordination on movement.  The examiner should also note the degree to which any additional range of motion is lost due to (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. 
IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE-UP, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. THE EXAMINER MUST PROVIDE THE DEGREE TO WHICH RANGE OF MOTION IS LOST DURING A FLARE-UP AND MUST DESCRIBE ANY OTHER FUNCTIONAL IMPAIRMENT DUE TO FLARE-UPS.  EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED.  If the Veteran denies any additional pain and/or functional limitation, such should be noted in the report.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered.  If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so.
4. Schedule the Veteran for an examination to ascertain the nature and etiology of his vision problem.  Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.  The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions.
The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s vision problem was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s service.  In providing this opinion, the examiner should discuss the Veteran’s in-service complaints of eye trouble. See November 2014 STRs, pp. 12-13.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered.  If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so.
5. Obtain a VA opinion that addresses whether the Veteran’s alcohol and cocaine use disorder is aggravated by his service-connected depressive disorder.  If deemed necessary by the examiner, schedule the Veteran for an examination.  The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report must include a discussion of the Veteran’s documented medical history as well as her assertions.
The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s alcohol and cocaine use disorder is aggravated (i.e., permanently worsened beyond its natural progression) by his service-connected depressive disorder.
The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be considered.  If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so.
6. Obtain a VA opinion that addresses the nature and etiology of the Veteran’s hypertension.  If deemed necessary by the examiner, schedule the Veteran for an examination.  Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.  The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions.
The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service.  In providing this opinion, the examiner should address the Veteran’s in-service elevated blood pressure readings. See November 2014 STRs, pp. 11, 22; November 2014 STRs, p. 14; February 2015 STRs, p. 4.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered.  If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so.
7. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s bilateral lower extremity disability.  Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.  The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions.
The examiner should offer comments, an opinion and a supporting rationale that clarifies whether the Veteran’s bilateral lower extremity disability is radiculopathy, peripheral neuropathy, or both.  In providing the Veteran’s diagnosis, the examiner should discuss the May 2015 examination and VA treatment notes which contain conflicting findings. See May 2015 VA Examination, p. 6; April 2015 CAPRI, p. 414.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered.  If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so.
8. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s right and left ankle disabilities.  Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.  The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions.
The examiner should offer comments, an opinion and supporting rationale that addresses the following:
(a) Identify all diagnoses that pertain to the Veteran’s right and left ankle disabilities.  In providing diagnoses, the examiner should address the previous findings of pain, weakened movement and possible arthritic changes. See April 2015 CAPRI, pp. 419, 427, 642.
(b) Is it at least as likely as not (a 50 percent probability or greater) that any diagnoses identified above were incurred in, aggravated by, or are otherwise etiologically related to the Veteran’s active duty service?  In providing this opinion, the examiner must address the Veteran’s in-service ankle injuries. See November 2014 STRs, pp. 13, 57, 60, 77.
The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered.  If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so.

 
A. S. CARACCIOLO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	W.V. Walker, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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