Citation Nr: 9906659 Decision Date: 03/12/99 Archive Date: 03/18/99 DOCKET NO. 97-18 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to an increased evaluation for service- connected post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for service- connected low back disability, currently evaluated as 40 percent disabling. 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to service connection for benign prostatic hypertrophy. 5. Entitlement to service connection for gout. 6. Entitlement to service connection for knee and ankle arthralgia. 7. Entitlement to service connection for cardiac arrhythmia. 8. Entitlement to service connection for beriberi, dysentery, malaria, or malnutrition. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Jean Steadman, Associate Counsel INTRODUCTION The veteran has recognized service from February 1941 to June 1946. The veteran was a prisoner of war (POW) of the Japanese Government from April 1942 to July 1942. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 1996 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) located in Honolulu, Hawaii. In the March 1996 rating action, the RO denied entitlement to service connection for bilateral shoulder arthritis. The veteran filed a timely notice of disagreement in the form of his November 1996 hearing transcript. The Hearing Officer subsequently granted service connection for bilateral shoulder arthritis in his April 1997 decision. The Board determines that the rating action constituted a full grant of benefits with respect to the award of service connection for the bilateral shoulder arthritis. See Holland v. Brown, 9 Vet. App. 324, 329-330 (1996), rev'd by order of the court sub nom,. Holland v. Gober, No. 97-7045 (Fed. Cir. July 19, 1997); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (implicitly overruling Holland v. Brown, supra). Hence, while the April 1997 supplemental statement of the case (SSOC) provided the veteran with the pertinent Diagnostic Codes, along with reasons and bases for the RO action finding that a compensable rating was not warranted for the bilateral shoulder arthritis, the stated issue was that of service connection. In June 1997, the veteran submitted a substantive appeal on the other issues on appeal. In the best light possible, the veteran's June 1997 substantive appeal with regard to the other issues can only be construed as a notice of disagreement (NOD) with regard to the level of evaluation for the service-connected bilateral shoulder disability. Therefore, appellate review of the claim is premature in that the veteran has not filed a substantive appeal with regard to this issue. The veteran clarified in his November 1996 RO hearing, that he was seeking service connection for bilateral hearing loss. The RO has addressed the issue of right ear hearing loss but has not addressed the issue of bilateral hearing loss. The RO is requested to develop the issue of bilateral hearing loss. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999 (hereinafter "the Court") for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. A review of the veteran's claims file reveals that his service medical records and service personnel records are not included. However, February 1948 and September 1949 verifications of service dates are of record. A September 1949 verification of service dates reflects that the veteran claimed to suffer from malaria and dysentery due to his POW internment. The veteran filed his claim for service connection for various disabilities in January 1988. The veteran was afforded a VA POW protocol examination in October 1995. The veteran described extensive nutritional deprivation and atrocities while he was a POW. He noted that he suffered from dysentery, malaria, beriberi, and malnutrition. After examination, the examiner's diagnoses included low back pain, pacemaker, right ear hearing loss, benign prostatic hypertrophy (BPH), bilateral shoulder arthritis, gout, and knee/ankle arthralgia. The veteran underwent VA mental disorders examination in October 1995. The examiner's diagnoses included PTSD with moderate symptoms. The veteran also underwent a Social Work Survey in October 1995. After a January 1996 VA orthopedic examination, the examiner diagnosed diffuse degenerative osteoarthritic changes and spondylolisthesis, L5-S1. It is unclear if the examiner examined the veteran's shoulders. Private post-service medical records from July 1983 to November 1996 reveal treatment for various disabilities including cardiac arrhythmia; irregular heartbeat, and sick sinus syndrome. In a March 1996 rating action, the RO granted service connection for PTSD and assigned a 10 percent disability evaluation; granted service connection for low back disability and assigned a 10 percent disability evaluation; and denied service connection for right ear hearing loss; benign prostatic hypertrophy; bilateral shoulder arthritis; gout; knee/ankle arthralgia; cardiac arrhythmia; and beriberi, dysentery, malaria, and malnutrition. The veteran filed a timely notice of disagreement in June 1996 regarding the level of compensation assigned for his service-connected PTSD and low back disability. VA outpatient treatment records from March 1991 to June 1997 reflect treatment for various disabilities. The veteran complained of right ear hearing loss in April 1996. Also, in April 1996, the veteran complained of low back pain. The examiner noted degenerative joint disease and chronic low back pain. In May 1996, the examiner noted the veteran had musculoskeletal pain, perhaps tendonitis, but not gout. Also, in May 1996, x-rays of the right ankle revealed mild degenerative changes and dorsal and plantar calcaneal spurs. The veteran's most recent psychiatric outpatient report in December 1996 reflects that he was experiencing increased confusion and disorientation. A VA examiner noted an enlarged prostate in a January 1997 examination. Also in January 1997, a neurologic examination revealed confusion and disorientation. During his November 1996 RO hearing, the veteran requested that the hearing transcript serve as a notice of disagreement for the issues of service connection for bilateral shoulder arthritis, right ear hearing loss, benign prostatic hypertrophy, gout, knee and ankle arthralgia, cardiac arrhythmia, beriberi, dysentery, malaria, and malnutrition. He testified that he suffered limited mobility, decreased mental energy, dizziness, light-headedness, confusion, and nightly nightmares. He described his POW experiences and recalled being forced to march. He reported that he was repeatedly hit with the butt of a rifle in the low back and kicked in the head. He pointed to his shoulders while describing the place of impact of the abuse. He recounted seeing several fellow POW's killed and one occasion when a POW was decapitated. He reported being very sick while a POW. The veteran reported that he had been treated at the VAMC for his heart, low back, PTSD, and swollen feet. He stated that he also sought private medical attention at Straub Hospital. The veteran reported exposure to acoustic trauma during service. He stated that he was exposed to artillery fire and was hit in the head causing bilateral hearing loss. He stated that he suffered from ankle and knee pain and swelling and that he had episodic gout. The veteran's wife testified that the veteran isolated himself from others and rarely went out without her. She stated that overhead planes or sirens bothered the veteran and reminded him of his wartime experiences. The veteran noted that he was retired due to his age. In his April 1997 decision, the Hearing Officer granted an increased evaluation of 40 percent for the veteran's service- connected low back disability. The Hearing Officer also granted service connection for bilateral shoulder arthritis and assigned a noncompensable evaluation. In a January 1998 rating action, the RO granted an increased evaluation for the veteran's service-connected PTSD to 30 percent disabling. The Board notes that that veteran has claimed entitlement to service connection for cardiac arrhythmia. The post-service medical records reflect that in March 1992, a thallium treadmill stress study included no perfusion abnormalities suggesting ischemia. A November 1996 private medical report reflected no evidence of ischemia. The veteran's service-conned low back disability is rated as 40 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5292. The Court held in DeLuca v. Brown, 8 Vet. App. 202 (1995), that the provisions of the rating schedule do not subsume 38 C.F.R. § 4.40, and that 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In addition, the Court indicated that the evaluation of orthopedic disorders must also involve consideration of all the factors set forth in 38 C.F.R. §4.45, including a determination as to whether the veteran's service-connected low back disability exhibits weakened movement, excess fatigability, or incoordination. Further, in Hicks v. Brown, 8 Vet. App. 417 (1995), the Court held that, with any form of arthritis, the provisions of 38 C.F.R. § 4.59, as they pertain to painful motion, must also be specifically addressed by the examiner. The Board recognizes that a VA orthopedic examination was conducted in January 1996. However, in order to comply with the Court's holding in DeLuca, supra, an additional examination of the veteran's service-connected low back disability should be conducted. That examination and the adjudication requested on demand should include consideration of all the factors set forth in 38 C.F.R. §§ 4.40, 4.45, and 4.59. The veteran has not been afforded a VA audiological examination since his discharge from service. Pursuant to the reasons set forth above and DeLuca, the Board is of the opinion that contemporaneous and thorough VA examinations would be of assistance in rendering a determination regarding these issues. See also Littke v. Derwinski, 1 Vet. App. 90 (1990). Additionally, the Board is of the opinion that an additional records search is warranted. In accordance with the statutory duty to assist the veteran in the development of evidence pertaining to his claims, the case is REMANDED for the following actions: 1. The RO should request that the veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care inpatient and outpatient providers who have treated him for PTSD, low back disability, hearing loss, benign prostatic hypertrophy, gout, knee or ankle complaints, cardiac complaints, beriberi, dysentery, malaria, or malnutrition since service. After obtaining any necessary authorization or medical releases from the veteran, the RO should attempt to obtain and associate with the claims file legible copies of the veteran's complete treatment records, to include audiograms, from all sources identified whose records have not previously been secure. Regardless of the veteran's response, the RO should secure all outstanding VA treatment records. 2. The RO should request the VAMC in Honolulu, Hawaii to furnish any additional medical records, which have not been previously secured. 3. The RO should request the National Personnel Records Center (NPRC) in St. Louis, Missouri to conduct a search for any service medical records pertaining to the veteran's active duty. 4. Thereafter, the RO should schedule the veteran for a comprehensive VA examination by a psychiatrist to determine the current severity of his PTSD. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination report must be annotated in this regard. Any further indicated special studies should be conducted. The examiner should identify all of the veteran's associated symptomatology in order to determine the impairment caused by PTSD. If there are other psychiatric disorders found, in addition to PTSD, the examiner should specify which symptoms are associated with each disorder(s). If certain symptomatology cannot be dissociated from one disorder or another, it should be so indicated. If a psychiaric disorder(s) other than PTSD is or are found on examination, the examiner should offer an opinion as to whether any such disorder is causally or etiologically related to PTSD, and, if not so related, whether the veteran's PTSD has any effect on the severity of any other psychiatric disorder. During the course of the examination, the examiner should identify all of the symptoms or manifestations of the PTSD. The examiner is requested to assign a numerical code under the Global Assessment of Functioning score provided in the Diagnostic and Statistical Manual for Mental Disorders. It is imperative that the examiner explain the meaning of the numerical score assigned, as it relates to social and industrial adaptability. If the historical diagnosis of PTSD is changed following examination, the examiner should state whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. Any opinions exposed must be accompanied by a complete rationale. 5. Thereafter, the veteran should be afforded a VA examination by a board certified orthopedist, if available, to determine the current severity of the low back disability and the etiology of the knee and ankle complaints. Any further indicated studies, including range of motion studies must be performed, and all findings set forth in detail. The examiner should identify any objective evidence of pain or functional loss due to pain associated with the service- connected low back disability. The examiner is requested to provide opinions as to whether it is at least as likely as not that pain could significantly limit functional ability of the low back area during flare-ups. The examiner should also be requested to determine whether, and to what extent, the low back exhibits weakened movement, excess fatigability, or incoordination. A complete rationale should be given for all opinions and conclusions expressed. The claims file should be provided to the examiner for review prior to the examination. The orthopedic examiner is requested to determine the nature and extent of the veteran's knee and ankle disabilities. After a thorough analysis of the medical evidence in the claims folder, including the service medical records, the examiner is specifically requested to provide opinions concerning when any knee and ankle disabilities first manifested, and if the disabilities are related to any findings noted during service. Any further indicated studies should be performed. The ranges of motion should be reported in degrees. The rationale for all opinions expressed should also be provided. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination report must be annotated in this regard. 6. Thereafter, the RO should schedule the veteran for a comprehensive VA ear, nose and throat and audiology examinations by appropriate specialist(s) to determine the nature, severity, and etiology of any hearing loss determined to be present. Any further indicated special studies should be performed. It is requested that the examiner obtain a detailed history of inservice and post service noise exposure. After reviewing the available medical records, the examiner should be requested to provide an opinion as to whether it is at least as likely as not that any current hearing loss was caused by noise exposure in service or the veteran's POW internment. A complete rationale for any opinion expressed should be included in the examination report. The claims file and a separate copy of this remand must be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examinations and the examination reports must be annotated by the examiners in this regard. 7. Thereafter, the veteran should be scheduled for a VA cardiovascular examination to determine the nature, extent, and etiology of any heart disorders found. The examiner should review the veteran's service medical records and the postservice medical records with regard to the onset of any heart problems found and render an opinion as to when any heart problems first manifested. Any further indicated special studies should be conducted. Any opinions expressed must be accompanied by a complete rationale. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination(s) and the examination report(s) must be annotated in this regard. 8. The veteran should then be afforded a VA genitourinary examination by an appropriate specialist to determine whether he has benign prostatic hypertrophy and, if so, it's probable etiology. Any further indicated studies should be accomplished. The examiner should furnish an opinion for the record as to whether it is at least as likely as not that any current benign prostatic hypertrophy began during service and, if not, when such disorder was first manifested. The clinical findings and reasoning, which form the basis of the opinions, should be clearly set forth. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination report must be annotated by the examiner in this regard. 9. The veteran should then be afforded a VA examination(s) by an appropriate specialist(s) to determine whether he has gout and, if so, it's probable etiology. Any further indicated special studies should be accomplished. The examiner should furnish an opinion for the record as to whether it is at least as likely as not that any current gout began during service and, if not, when such disorder was first manifested. Furthermore, if the disorder is found to not have originated in service, the examiner should indicate whether (and, if so, how) it are related to any psychiatric disorder or other claimed disability. The clinical findings and reasoning, which form the basis of the opinions, should be clearly set forth. The claims folder and a separate copy of this remand must be made available to and reviewed by the examiner(s) prior and pursuant to conduction and completion of the examination(s) and the examination report(s) must be annotated in this regard. 10. Thereafter, the veteran should be scheduled for a VA POW protocol examination to determine the nature, extent, and severity of any beriberi, dysentery, malaria, or malnutrition found on examination. Any further indicated special studies should be conducted. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination report must be annotated by the examiner in this regard. 11. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 12. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issues on appeal,. With respect to the issue of entitlement to an increased evaluation for lumbosacral strain, the RO should consider the applicability of 38 C.F.R. § 4.40 regarding functional loss due to pain, and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination, or pain on movement of a joint, as discussed by the Court in DeLuca v. Brown. If the benefits sought on appeal are not granted to the veteran's satisfaction, or if a timely notice of disagreement is received with regard to any other issue, the RO should issue a supplemental statement of the case and the veteran and his representative should be afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. No action is required of the veteran until he is otherwise notified by the RO. By this remand, the Board intimates no opinion as to any final outcome warranted. RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998). - 13 -