Citation Nr: 0811754 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-07 149A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service- connected post-traumatic stress disorder (PTSD). 3. Entitlement to an initial compensable rating for rhinitis. 4. Entitlement to an effective date earlier than May 6, 2002, for the grant of service connection for pseudofolliculitis barbae. 5. Entitlement to an effective date earlier than November 20, 2000, for the grant of service connection for rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from January 1987 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that granted noncompensable service connection for rhinitis, effective November 2, 2000; granted service connection and awarded a 10 percent disability rating for pseudofolliculitis barbae, effective May 6, 2002; and denied service connection for a right shoulder disability and for GERD, to include as secondary to PTSD. In September 2005, the Board remanded the claims for service connection for a right shoulder disability and GERD, to include as secondary to PTSD for additional development. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Although the Board regrets the additional delay, further development is needed prior to disposition of the claims. With respect to the claims of entitlement to an initial compensable rating for rhinitis, and for earlier effective dates of service connection for rhinitis and pseudofolliculitis barbae, in a statement received in October 2007, the veteran disagreed with the effective dates of service connection and the rating established for his rhinitis in the September 2007 rating decision. It does not appear from a review of the claims file that the veteran has been issued a statement of the case on these issues. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). With respect to the claims for service connection for a right shoulder disability and for GERD, VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2007); Robinette v. Brown, 8 Vet. App. 69 (1995). In September 2005, the Board remanded the claims for service connection for a right shoulder disability and for GERD in effort to obtain opinions regarding whether it was as likely as not that the veteran's right shoulder disability first manifested during service and as to whether it was as likely as not that the veteran's GERD was caused or aggravated by his PTSD. On examination in March 2007, the examiner determined that while there was record of a complaint of a right shoulder disability on separation from service, because there was no in-service evidence of treatment for a right shoulder disability, he was unable to opine as to the relationship between the veteran's current right shoulder disability and his in-service complaints. In so determining, the examiner neglected to take into consideration the veteran's statements regarding his history of the right shoulder disability, as well as the lay statements provided by the veteran's fellow service members. As the veteran and his fellow service members have provided credible testimony regarding the incurrence of the injury, and the veteran is competent to testify as to both the incurrence and continuity of symptomatology associated with the injury, the Board finds that the examination report is not adequate for rating purposes, and this matter must be remanded. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). With regard to the claim for service connection for GERD, in September 2005, the Board specifically requested that a VA examiner comment as to whether the veteran's PTSD caused or aggravated his GERD. In the March 2007 report of examination, the examiner declined to provide an opinion as to either of these questions, and instead commented that it was possible for GERD to occur either with or without a concurrent diagnosis of PTSD. The examiner additionally stated that the two disorders had different etiologies. The examiner's failure to address whether the veteran's GERD is aggravated by his PTSD rendered the March 2007 report of examination inadequate for rating purposes. Stegall v. West, 11 Vet. App. 268 (1998). As it remains unclear to the Board whether the veteran's GERD is aggravated by his PTSD, the Board finds that a remand for an additional opinion is necessary. 38 C.F.R. § 3.159(c)(2) (2007). Accordingly, the case is REMANDED for the following actions: 1. Schedule the veteran for a joints examination. The examiner should specifically opine as to whether it is as likely as not (50 percent probability or greater) that the veteran's current right shoulder disability is related to his in-service complaints of a "trick" right shoulder. In this regard, the examiner should consider the veteran's statements regarding the incurrence of the right shoulder disability, in addition to his statement regarding the continuity of symptomatology, as well as the lay statements provided by the veteran's fellow service members regarding the incurrence of the injury. The examiner should also provide an opinion as to the approximate date of onset of the veteran's current right shoulder disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must indicate in the examination report that the claims file was reviewed. The rationale for the opinion must be provided. 2. Schedule the veteran for a gastrointestinal examination. The examiner should specifically consider the post-service medical record dated in October 2001 which indicates that the veteran's GERD was worsened as a result of his anxiety. The examiner should opine as to etiology of the veteran's GERD, including as to whether it is as likely as not (50 percent probability or greater) that the veteran's GERD was either caused or aggravated (permanently increased in severity beyond the natural progress of the disease) by anti-inflammatory medications prescribed for his right shoulder disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must indicate in the examination report that the claims file was reviewed. 3. Send the veteran and his representative a statement of the case on the issues of entitlement to an initial compensable rating for rhinitis, and for earlier effective dates of service connection for rhinitis and pseudofolliculitis barbae. He should be informed of his appeal rights. 4. Then, readjudicate the claims for service connection for a right shoulder disability and for GERD, to include as secondary to service-connected PTSD. If action remains adverse to the veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board is remanding. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2007).