Citation Nr: 1008489 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 08-08 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating for headaches, currently evaluated 10 percent disabling. 2. Entitlement to an increased disability rating for service-connected optic neuritis of the left eye, currently evaluated 10 percent disabling. 3. Entitlement to an increased (compensable) initial disability rating for a service-connected facial scar. 4. Entitlement to service connection for a right leg disability. 5. Entitlement to service connection for a back disability. 6. Entitlement to service connection for restless leg syndrome. 7. Entitlement to service connection for an acquired psychiatric disorder, claimed as memory loss. 8. Entitlement to service connection for a cervical spine disability. 9. Entitlement to service connection for nosebleeds (epistaxis). 10. Entitlement to service connection for scars of the right leg. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Law Clerk INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1957 to November 1960. This case comes before the Board of Veterans' Appeals (Board) on appeal of June 2007 and July 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Procedural history In the June 2007 rating decision, the RO granted the Veteran's claims of entitlement to service connection for headaches and optic neuritis of the left eye, and assigned 10 percent disability ratings as to each claim, effective January 8, 2007. Additionally, the RO denied the Veteran's claims of entitlement to service connection for a right leg disability, a back disability, restless leg syndrome, nosebleeds, and a cervical spine disability. In the July 2007 rating decision, the RO granted the Veteran's claim of entitlement to service connection for a facial scar, and assigned a noncompensable [zero percent] disability rating. The RO also denied the Veteran's claim of entitlement to service connection for a mood disorder, claimed as memory loss. In August 2007, the RO received the Veteran's notice of disagreement (NOD) as to the above-referenced disability ratings assigned as well as the claims which were denied in the June 2007 and July 2007 rating decisions. In January 2008, a RO decision review officer (DRO) conducted a de novo review of the claims and confirmed the RO's findings in a Statement of the Case (SOC). The Veteran's appeal was perfected by the timely filing of a substantive appeal (VA Form 9) in February 2008. In March 2009, the Veteran presented sworn testimony at a personal hearing in St. Petersburg, Florida which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. The claim for scars of the right leg In January 2007, the Veteran filed a claim of entitlement to service connection for scars of the right leg. The June 2007 rating decision denied this claim. In the above-referenced August 2007 NOD, the Veteran expressed his disagreement with that decision. A SOC pertaining to that issue has yet to be issued by the RO. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (the Court) held that where a NOD is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Clarification of issue The Board observes that the Veteran has been diagnosed with major depression, adjustment disorder, and anxiety in addition to a mood disorder. See private mental health evaluation reports dated April 1998 and May 1998; see also the June 2007 VA examination report. The United States Court of Appeals for Veterans Claims (Court) has recently determined that when a claimant makes a claim of entitlement to service connection for a psychiatric disability, (s)he is seeking service connection any acquired psychiatric disability regardless of how those symptoms are labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board is therefore redenominating the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, as instructed by the Court in Clemons. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that these claims must be remanded for further evidentiary development. Entitlement to increased disability ratings for headaches, optic neuritis of the left eye, and facial scar Because the claims of entitlement to increased disability ratings for service-connected headaches and optic neuritis of the left eye as well as entitlement to an increased (compensable) initial disability rating for a service- connected facial scar involve the application of identical law to similar facts, for the sake of economy, the Board will address them together. The Veteran was last afforded a VA examination in June 2007 as to his service-connected headaches, optic neuritis of the left eye, and facial scar. The Veteran essentially contends that his service-connected disabilities have since increased in severity. See, e.g., the Veteran's statement dated March 2009. With respect to the Veteran's service-connected headaches, the Veteran asserts that he experiences headaches more frequently since the June 2007 VA examination which cause dizziness, nausea, and photophobia. The Veteran also reported that he is incapable of driving when he experiences these headaches. Finally, the Veteran reported that he is currently taking medication for the service-connected headaches. See the March 2009 hearing transcript, page 8. With regard to the Veteran's service-connected optic neuritis of the left eye, the Veteran reported at the March 2009 hearing that he experiences double vision and has blind spots. Id. at page 12. Moreover, the Veteran reported in a March 2009 statement that he has had the prescription for his eyeglasses changed "at least four times" in the past year due to decreased vision in his left eye. With respect to the Veteran's facial scar, he reported in the March 2009 statement as well as his August 2007 NOD that the facial scar periodically has sores, and when he scratches the sores, they "bleed freely." The June 2007 VA examination report is pertinently absent any indication of sores on the Veteran's facial scar. Accordingly, the Board finds that contemporaneous VA medical examinations are warranted. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) [VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse]; see also Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]. Entitlement to service connection for a right leg disability, a back disability, restless leg syndrome, an acquired psychiatric disorder, a cervical spine disability, and nosebleeds (epistaxis) Because the claims of entitlement to service connection for a right leg disability, a back disability, restless leg syndrome, an acquired psychiatric disorder, cervical spine disability, and nosebleeds involve the application of identical law to similar facts, for the sake of economy, the Board will address them together. In general, in order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As to element (1), current disability, the June 2007 VA examination report indicates diagnoses of lumbar disease, status post multiple surgeries, cervical spine strain, restless leg syndrome, a right leg disability, mood disorder, anxiety, and epistaxis (nosebleeds). Accordingly, Hickson element (1) is met as to all of these claims. With respect to Hickson element (2), evidence of an in- service incurrence of a disease or injury, the Veteran's service treatment records indicate that he was involved in a motor vehicle accident in December 1959 and was treated in Crouse-Irving Hospital in New York. A December 1959 hospital treatment record from Crouse Irving Hospital indicates that the Veteran sustained post-traumatic amnesia, neck stiffness, and "a doubtful right plantar extensor response" was reported as a result of the motor vehicle accident. The Veteran has stated that after he was discharged from Crouse Irving Hospital, he was transferred to Wright- Patterson Air Force Base in Ohio. See, e.g., the Veteran's VA Form 9 dated February 2008. Indeed, the Veteran's service treatment records show treatment at Wright-Patterson Air Force Base from March 1960 to November 1960, indicating extensive treatment. However, the only available record from Wright-Patterson Air Force Base is the Veteran's discharge form. Accordingly, these treatment records, if available, should be located and associated with the Veteran's claims folder. With respect to the Veteran's nosebleeds, his service treatment records indicate treatment in September 1959 and October 1959 for recurring nosebleeds over a two-year period. He was given an ice pack and gauze for treatment. Accordingly, Hickson element (2) is arguably met as to in- service nosebleeds. With regard to Hickson element (3), medical nexus, the only medical records currently associated with the Veteran's VA claims folder which offer an opinion as to a possible causal relationship between the Veteran's claimed disabilities and his military service is the June 2007 VA examination report. The VA examiner reported that "the [Veteran's] lumbar disc disease, myoclonic jerks/restless leg syndrome, and right leg condition are not related to events that occurred in military service as there are no records of the [Veteran] having injuries in military records." The VA examiner also reported that "[t]he [Veteran's] cervical spine strain is less likely than not related to events that occurred in military service as military service records do not indicate chronicity." As such, it appears that the VA examiner's rationale for his opinion was based on the absence of an in- service back disability, restless leg syndrome, right leg disability, and cervical spine disability. However, service connection can be established for disabilities first diagnosed after service, if found to be related to an in- service injury, such as the motor vehicle accident here. The Board notes that a VA psychiatrist opined as to the relationship between the Veteran's claimed psychiatric disabilities and his military service. The VA psychiatrist specifically reported that "[a]nxiety and depression is less likely as not (less than 50/50 probability) caused by or a result of [motor vehicle accident] sustained while in the military." Her rationale was based on the Veteran's long- standing alcohol dependence, although she reported that "[i]t is unclear if the [motor vehicle accident] affecting his symptoms." However, she clearly stated that she did not have the claims file to review. Regarding the Veteran's nosebleeds, the competent medical evidence of record does not clearly indicate whether the Veteran's nosebleeds are related to his military service. Indeed, the June 2007 VA examiner reported that "I am unable to attribute the [Veteran's] recurrent epistaxis to events that occurred in military service without speculating." This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Medical nexus opinions must be obtained which address the nature of the Veteran's disabilities and whether such are related to his military service. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2009) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Entitlement to service connection for scars of the right leg As was described in the Introduction above, in June 2007 the RO denied the Veteran's claim of entitlement to service connection for scars of the right leg. The Veteran has since expressed disagreement with that decision. See the Veteran's NOD dated August 2007. In Manlincon, supra, the Court held that where a NOD is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Thus, the agency of original jurisdiction must issue a SOC as to the Veteran's claim of entitlement to service connection for scars of the right leg. Accordingly, the case is REMANDED for the following action: 1. VBA should obtain the Veteran's treatment records from the VA medical facilities in Bay Pines, Fort Myers, and Sebring, for any treatment received since May 2007. 2. After obtaining the Veteran's VA treatment records, VBA should then schedule him for examinations in order to determine the current severity of the service-connected headaches, optic neuritis of the left eye, and facial scar. The Veteran's VA claims folder should be forwarded to the examiners for review in connection with the examinations. The reports of the examinations should be associated with the Veteran's VA claims folder. 3. VBA should request through appropriate channels medical treatment reports for the Veteran from the Wright-Patterson Air Force Base for the period from March 11, 1960 to November 25, 1960. The medical records obtained, if any, should be associated with the claims folder. 4. After the above in-service treatment records are obtained, if any, and associated with the claims folder, VBA should arrange for a physician with appropriate expertise to review the Veteran's VA claims folder and provide opinions, with supporting rationale, as to the following: a. Whether it is at least as likely as not that the Veteran's back disability is related to his December 1959 motor vehicle injury or to any other incident of service. b. Whether it is at least as likely as not that the Veteran's restless leg syndrome disability is related to his December 1959 motor vehicle injury or to any other incident of service. c. Whether it is at least as likely as not that the Veteran's cervical spine disability is related to his December 1959 motor vehicle injury or to any other incident of service. d. Whether it is at least as likely as not that the Veteran's right leg disability is related to his December 1959 motor vehicle injury or to any other incident of service. e. Whether it is at least as likely as not that the Veteran's nosebleeds (epistaxis) disability is related to his military service. Additionally, VBA should arrange for a psychiatrist or psychologist with appropriate expertise to review the Veteran's VA claims folder and provide an opinion, with supporting rationale, as to as to what is (are) the most likely psychiatric diagnosis(es); and whether it is at least as likely as not that any diagnosed psychiatric disability is related to the Veteran's period of military service, in particular his December 1959 motor vehicle accident. If the reviewers believe that examination of the Veteran is necessary, such should be scheduled. A report of all medical opinions rendered should be prepared and associated with the Veteran's VA claims folder. 5. After undertaking any additional development which it deems to be necessary, VBA should then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. 6. VBA should issue a SOC pertaining to the issue of entitlement to service connection for scars of the right leg. In connection therewith, the Veteran and his representative should be provided with appropriate notice of his appellate rights. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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. 2009). _________________________________________________ MICHELLE L. KANE 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) (2009).