Citation Nr: 1136858 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 05-17 814A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for coronary artery disease, (CAD). 3. Entitlement to service connection for status post left hip replacement. 4. Entitlement to service connection for tobacco use. 5. Entitlement to service connection for bilateral defective hearing. 6. Entitlement to service connection for gastrointestinal reflux disease, (GERD). 7. Entitlement to service connection for a sinus disorder. 8. Entitlement to service connection for major depressive disorder. 9. Entitlement to service connection for sleep apnea. 10. Entitlement to an initial compensable evaluation for rheumatoid arthritis. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran apparently served with the Army Reserves/National Guard between 1971 and 2004. During this time he had active service from April 1993 to August 1993, and from February 2003 to February 2004. It is assumed he had various other periods of active duty for training and inactive duty training (e.g., weekend drills and Summer training exercises) during those years between 1971 and 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 decision by the RO which granted service connection for rheumatoid arthritis and assigned a noncompensable evaluation, and denied service connection for hypertension, CAD, left hip replacement, tobacco use, defective hearing, GERD, and a sinus disorder. By rating action in January 2010, the RO denied service connection for major depressive disorder and sleep apnea. Further discussion of these issues will be addressed in the remand portion of this decision. The issues of service connection for bilateral defective hearing, GERD, a sinus disorder, major depressive disorder, sleep apnea, and an increased rating for rheumatoid arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The medical evidence of record establishes that the Veteran's CAD, hypertension and left hip replacement clearly and unmistakably preexisted the Veteran's active service and did not increase in severity during service or otherwise worsen beyond the natural progression of the underlying disease process in service. 2. Tobacco use is not a disease or disability under VA law and regulations. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service nor may any current hypertension be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 101(24), 1110, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6(c)-(d), 3.159, 3.303, 3.304, 3.306 (2011). 2. Coronary artery disease was not incurred in or aggravated by active service nor may any current cardiovascular disease be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 101(24), 1110, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.6(c)-(d), 3.159, 3.303, 3.304, 3.306 (2011). 3. The Veteran's left hip replacement was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(24), 1110, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2011). 4. Service connection for tobacco use is dismissed. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.300, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claims, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2010). Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in July 2004, February 2005 and January 2008. Although some of the notification letters were not sent prior to initial adjudication of the Veteran's claims in November 2004, this was not prejudicial to the Veteran as the claims were subsequently readjudicated and supplement statements of the case (SSOC) were promulgated, most recently in February 2011. Thus, the Board finds that the notification requirements of the VCAA have been satisfied. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran with respect to the claims regarding hypertension, CAD, left hip replacement and tobacco use. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's active service treatment records and all VA and private medical records, including multiple duplicate records from the Social Security Administration have been obtained and associated with the claims file. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide those issues, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the Veteran in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Concerning the claims for hypertension, coronary artery disease, a left hip disability and tobacco use, the Board concludes that an examination is not needed because there is no competent evidence establishing an in-service event, injury or disease relevant to the claims, including on a presumptive basis, and there is no competent evidence that any of these may be related to the Veteran's military service. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection Relevant legal criteria, and particularly pertinent to the Veteran's active service from April 1993 to August 1993, and from February 2003 to February 2004, provide that service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Further, where a veteran served 90 days or more and sensorineural hearing loss or cardiovascular disease, including hypertension manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; VAOPGCPREC 3-03. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2011). In determining whether there is clear and unmistakable evidence to rebut the presumption of soundness, all evidence of record must be considered, including post service medical opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000) and Adams v. West, 13 Vet. App. 453 (2000). In July 2003, the VA General Counsel issued a precedent opinion which held that, to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. In its decisions, the Board is bound to follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). Because of the Veteran's lengthy association with the Guard and Reserves, it is important to note that a "veteran" is a person who served in the "active military, naval, or air service" and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c). INACDUTRA includes duty (other than full-time duty) prescribed for Reserves. 38 C.F.R. § 3.6(d) (2011). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In order to establish basic eligibility for veterans' benefits based upon active duty for training, the appellant must first establish that he was disabled from a disease or injury incurred or aggravated in the line of duty. See Laruan v. West, 11 Vet. App. 80,84-86 (1998) (rev'd on other grounds, D'Amico v. West, 12 Vet. App. 264 (1999)); see also Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Until "veteran" status is established for a period of active duty for training or a period of inactive duty for training, the presumption of soundness and the presumption of aggravation are not for application. See Laruan, supra; Paulson, supra. Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Factual Background & Analysis Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the multiple volumes of the Veteran's claims files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veteran contends that his hypertension, coronary artery disease, left hip disability and tobacco use are due to or otherwise related to service. At a Decision Review Officer (DRO) hearing at the RO in January 2009, the Veteran testified that he believed that his hypertension, CAD, and left hip disability were aggravated during his period of active service in Kuwait in 2004, and that his hearing loss was caused by exposure to acoustic trauma from working around helicopter engines early on in his military service and from generators while he was in Kuwait. The Veteran also asserted that although he recently stopped smoking, the military (and federal government) made cigarettes easily available to servicemen and, therefore, he should be service-connected for tobacco use. With respect to the Veteran's contentions, while he is competent to report his symptoms, he is not a medical professional competent to offer an opinion as to the nature or etiology of any of the claimed disabilities decided herein. Savage v. Gober, 10 Vet. App. 488, 495; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (lay testimony is not competent to establish, and therefore not probative of, a medical nexus). Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Concerning the Veteran's hypertension, CAD and left hip replacement, the evidence of record shows that these disabilities were not due to an injury incurred during a period of ACDUTRA or INACDUTRA but were initially manifested prior to his active service. Although the Veteran has not provided VA with any medical records pertaining to his left hip replacement surgery, a 1990 hip replacement surgery at St. Vincent Hospital in Birmingham, Alabama was noted on a Medical Evaluation Board (MEB) examination in October 2003. Parenthetically, the Board notes that the Veteran never reported the hip replacement surgery on any of the available annual service examinations prior to the MEB examination. In any event, the Veteran does not claim, nor do the service records show an injury or treatment for any left hip problems during a period of INACDUTRA, ACDUTRA or active service, and while the Veteran complained of multiple joint pains, primarily involving his lower extremities and wrists while on active service in 2003, there was no mention of any left hip problems. Thus, the Board considers it to be clear and unmistakable that the Veteran's left hip replacement occurred prior to the Veteran's active service. Private medical records show that the Veteran was treated for an acute myocardial infarction with post-infarction unstable angina in September 1987, and that he underwent angioplasty for CAD at that time. Additional private medical records show a diagnosis of possible mild hypertension in March 1983, and an indication of hypertensive symptoms in January 1988. The first definitive diagnosis of hypertension was noted in November 1990. (Although this 1990 diagnosis came on a Reserve service examination report, veteran status had not been acquired at that time as would confer a presumption of soundness prior to undergoing this examination.) Thus, the evidence clearly and unmistakably shows CAD, and hypertension existed prior to the Veteran's active military service. Likewise, there is no competent, credible suggestion either was due to disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or to an injury during a period of INACDUTRA. The Veteran does not contend, nor do the service treatment records show any complaints, treatment or abnormalities referable to any left hip or cardiovascular problems during the April to August 1993 period of service. Rather, the Veteran contends that the pre-existing disabilities were aggravated by his period of active service from 2003 to 2004. At the DRO hearing, the Veteran testified that his left hip was aggravated by the physical demands of having to walk through sand and from standing on his feet for prolonged periods of time while in Kuwait. However, he did not describe any additional impairment or reduced ability, nor is there any evidence which even remotely showed that his left hip disability worsened or otherwise underwent an increase in severity during this service. That is, the service records do not show any complaints, treatment or abnormalities for any left hip problems during his period active service. Further, while the Veteran has been treated by VA for numerous orthopedic maladies, including, ankle, knee, shoulder and back problems since his discharge from service in 2004, there are no complaints, treatment or findings pertaining to any left hip problems. Absent evidence of increased disability of the left hip replacement in service or at present, there is no basis for a grant of service connection for his left hip replacement. Concerning the Veteran's cardiovascular disorders (CAD and hypertension), other than a single episode of angina type symptoms in November 2003, the service and post-service medical records showed no complaints or any additional symptomatology associated with his CAD or hypertension. The evidence showed that the Veteran was seen at a private emergency room in November 2003 with complaints of intermittent indigestion, nausea and shortness of breath for the previous 24 hours. The Veteran denied any other symptoms, such as, numbness, weakness or radiating pain into his extremities and no pertinent abnormalities were noted on initial examination. His blood pressure was 139/81, and all clinical and diagnostic findings, including an EKG and chest x-ray study were within normal limits. Because of his medical history of heart disease, the Veteran was admitted for further cardiac work-up, but a subsequent coronary arteriogram was essentially unchanged from a study in September 1987, ( occlusive disease of the right artery) with normal left ventricular contraction. Additionally, the evidence showed that the Veteran has been seen by VA for various maladies on numerous occasion from 2004 to the present. Other than monitoring his cardiovascular disorders, the records showed no specific complaints, treatment or any additional abnormalities associated with his hypertension or CAD, except for an occasional adjustment to his hypertensive medication which is still well controlled with medication, alone. The records show that his hypertensive medication (Amlodipine) was increased to 10 mg once a day in December 2008. In deciding a claim based on aggravation, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (2011). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service. Hunt, 1 Vet. App. at 292, 296 (1991); see also Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). In this case, while the Veteran was seen for angina like symptoms on one occasion during his active service in 2003, there was no evidence of any worsening or increase in the underlying cardiovascular disabilities. That is, other than angina type symptoms, the clinical and diagnostic findings on a comprehensive cardiac work-up were essentially the same as in 1987, and did not show any additional disability or worsening of the pre-existing CAD. Unless the underlying condition, as contrasted to symptoms, is worsened, aggravation may not be conceded. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Here, the record does not suggest or otherwise show, that the Veteran's CAD or hypertension increased in severity during service. The fact that the Veteran's medication was adjusted by VA over the years since 2004, is not evidence of a worsening of the underlying condition during service. While the Veteran may believe that his pre-existing left hip replacement, CAD and hypertension were aggravated during his active service, he has not presented any competent medical evidence to support that assertion. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Given the lack of any competent evidence showing that the Veteran's preexisting hypertension, CAD and left hip replacement worsened or otherwise underwent an increase in disability beyond the natural progress of the disease process in service, the Board finds that the presumption of soundness has been rebutted. Further, since there is clear and unmistakable evidence that the preexisting disabilities were not aggravated during service for the purpose of rebutting the presumption of soundness (38 U.S.C.A. § 1111), it necessarily follows that the disabilities were not, in fact, aggravated during service (38 U.S.C.A. § 1153). The Board has found by clear and unmistakable evidence that the Veteran's hypertension, CAD and left hip replacement preexisted service and were not aggravated by service in order to rebut the presumption of soundness on entrance. VA's General Counsel found that such a finding would necessarily be sufficient to rebut the presumption of aggravation under 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(b). Therefore, the Board finds no basis to grant service connection. Tobacco Use Concerning the Veteran's claim of service connection for tobacco use, the provisions of 38 U.S.C.A. § 1103 (West 2002) prohibit service connecting a disability as a result of disease or injury attributable to the use of tobacco products during a veteran's active service. By its terms, 38 U.S.C.A. § 1103 is applicable to claims filed after June 9, 1998. See 38 C.F.R. § 3.300. As the Veteran's claim was filed after June 9, 1998, 38 U.S.C.A. § 1103 must be applied in this case. The Board is bound by the laws enacted by Congress, and in the present case, there is simply no legal basis to award entitlement to service connection for tobacco use. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (in cases where the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Service connection for hypertension is denied. Service connection for coronary artery disease is denied. Service connection for status post hip replacement is denied. Service connection for tobacco use is dismissed. REMAND Concerning the remaining issues on appeal, the Board finds that additional development is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2011). While the Veteran's service treatment records for his active service have been obtained and associated with the claims file, it is not clear if all available reserve service treatment records have been associated with the claims file. At the time of the service MEB in October 2003, the Veteran reported that his service treatment records were lost 10 years earlier after he went to Honduras on active training. The evidentiary record as currently constituted includes reserve service treatment records from 1979 to 1993. As the reserve service records are potentially relevant to the remaining issues on appeal, an attempt must be made to locate any available missing records and associate them with the claims file. The service treatment records showed that the Veteran had a hearing loss for VA purposes on a service examination in October 2003. Although a MEB Proceedings report in December 2003 indicated that the Veteran had a pre-existing hearing loss which was aggravated by service, there was no objective evidence of a hearing loss on any of the available reserve service examination reports of record prior to his active service in 2003. A reserve service audiological examination in November 1993 did not show a hearing loss for VA purposes. Further, the Veteran has never been examined by VA to determine if he has a hearing loss at present. At the DRO hearing in January 2009, the Veteran reported that he was treated for gastrointestinal problems at Ft. Gordon prior to and after his period of active service in 2003, but could not recall the specific dates of treatment. The service records showed that the Veteran was taking medication for GERD while on active service in October 2003. However, there was no indication in the records as to the date of onset of his symptoms or the basis for the reported diagnosis of GERD. In this regard, the Board notes that a private esophagogastroduodenoscopy in June 2009 was positive for Grade C esophagitis, but did not show any objective evidence of GERD. Similarly, a VA barium swallow study in March 2009 did not show any strictures, masses, or other significant evidence of esophageal pathology. However, the assessment at that time was GERD. Regarding the claim for a sinus disorder, the Veteran is service-connected for residuals of nasal fracture incurred while on active duty training in March 1983. The available reserve service records showed no complaints, treatment or diagnosis for any allergies or sinus problems prior to his nasal fracture. However, subsequent to that time, the service records showed that he was seen on numerous occasions for sinus congestion and difficulty breathing due to obstruction of the nasal passages, and he underwent several surgical procedures in the late 1980's. The service records also include diagnoses of non-allergic rhinitis and vasomotor rhinitis. Although the Veteran was examined for VA purposes, the examiner was not asked to offer a medical opinion as to the nature or etiology of any sinus problems. In light of that, together with the grant of service connection for a fractured nose, the Board finds that additional consideration must be given to the Veteran's claim for a sinus disorder, including as secondary to the nasal fracture and subsequent surgeries. Concerning the increased rating claim, while service connection has been established for rheumatoid arthritis, it is not clear from the current evidence of record which joints are affected by the disease. The service records showed that the Veteran was treated for joint pains primarily in the lower extremities, involving his toes, feet, ankles, knees, and in his wrists and knuckles in service in 2003. The diagnoses included mixed connective tissue disorder with joint problems, and the Veteran was started on Prednisone. VA medical records showed treatment for multiple joint complaints on numerous occasions since his discharge from service. A VA report in September 2004 indicated that the exact etiology of the Veteran's joint complaints was unclear and noted that laboratory studies in 2003 (in service) were negative for rheumatic factor, "SSA" and "RNP" antibody and that C-reactive protein was normal, suggesting possible mixed connective tissue disease. Additional VA medical records showed treatment for gouty arthritis of the big toes and elbows. (See October 2007 VA note). A VA report in December 2006, appears to suggest that the Veteran's joint pains in his ankles, knees, hips, shoulders, elbows, wrists, and some joints of his fingers were due to gouty arthritis. The record also showed that the Veteran has degenerative joint disease of the lumbar and cervical spine. The distinction as to the etiology of the Veteran's multiple joint problem is important in this case because the correct diagnosis would affect the diagnostic code under which VA evaluates his disabilities. Degenerative joint disease is a form of osteoarthritis, and would rated under a diagnostic code pertinent to range of motion and functional loss. While rheumatoid arthritis is also a form of arthritis, it is also a systemic disease whose evaluation contemplates more that limitation of motion. Given the medical complexity of the Veteran's joint problems, the lack of a definitive diagnosis of the underlying disease process and the affected joints associated with the service-connected disability, the Board finds that an examination is necessary. Finally, as noted above, service connection for major depressive disorder and sleep apnea was denied by the RO in January 2010, and a notice of disagreement to that decision was received in August 2010. However, a statement of the case, (SOC) has not been promulgated for these issues. When there has been an initial RO adjudication of a claim and a notice of disagreement has been filed as to its denial, thereby initiating the appellate process, the claimant is entitled to an SOC regarding the denied issue. The RO's failure to issue an SOC for the Veteran's claims for a psychiatric disorder and sleep apnea is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Archbald v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbald, 9 Vet. App. at 130. In light of the discussion above and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED for the following action: 1. The Veteran should provide VA with the dates of treatment for any gastrointestinal problems at Ft. Gordon prior to his active service in 2003. If information is received, the AMC should take appropriate action to obtain all available treatment records from that facility. The AMC should also contact the National Personnel Records Center (NPRC), or any other appropriate agency, and request all of the Veteran's service treatment records from 1971 to 2004, and associate them with the claims file. If no such records can be found, or if they have been destroyed, ask for specific confirmation of that fact. All attempts to procure records should be documented in the file. 2. The Veteran should be afforded the following examinations, with the claims folder made available to the examiners for review, and a notation to the effect that this record review took place included in the reports provided. All indicated tests and studies should be accomplished. a.) An audiological evaluation to determine the nature and etiology of any identified hearing loss. The audiologist should provide an opinion as to whether it is at least as likely as not that any identified hearing loss was caused by acoustic trauma in service, or otherwise had its onset in service. b.) A VA examination to determine the nature and, if feasible, date of onset of any identified gastrointestinal disorder. If a gastrointestinal disorder was initially manifested prior to the Veteran's active service beginning in February 2003, the examiner should provide an opinion as to the following: i) Was there an increase in the underlying gastrointestinal pathology during his active service from 2003 to 2004? ii) If there was an increase during service, was it due to the natural progress of the disorder? iii) If a gastrointestinal disorder was not manifested prior to the Veteran's active service in 2003, is it at least as likely as not that any current gastrointestinal disorder was manifested in service in 2003-2004, or is otherwise related service? c.) A VA examination to determine the nature and etiology of any identified sinus disorder. The examiner should provide an opinion as to whether it is at least as likely as not that any current identified sinus disorder is proximately due to, the result of, or aggravated by the nose fracture and subsequent surgeries? d.) A VA examination to determine the specific nature of the Veteran's multiple joint disability, and the current severity of the service-connected disability. All indicated tests and studies should be accomplished to identify the etiology of the Veteran's multiple joint disability. Thereafter, the examiner should provide a response to the following: i) If active rheumatoid arthritis is present, comment on whether the Veteran suffers severe impairment due to anemia or weight loss, incapacitating exacerbations and their frequency, or a combination of symptoms that result in definite impairment of health. ii) If not, identify which joints are affected by the service-connected disability and note any limitation of motion in each joint. The actual and normal ranges of motion should be listed for each joint. iii) Indicate whether any affected joint exhibits weakened movement, excess fatigability, or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss or favorable or unfavorable ankylosis due to any excess fatigability, weakened movement or incoordination. If that is not feasible, that should be explained. iv) Express an opinion on whether pain in any affected joint could significantly limit functional ability of those body parts during flare-ups or when the joints are used repeatedly over a period of time. These determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. If any examiner is unable to answer the above inquiries, an explanation for that conclusion should be provided. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or because additional information was needed. If it is determined that additional information is needed, the examiner should state what information is needed in order to offer an opinion, (which the AMC should attempt to obtain). Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. Following completion of the foregoing, the AMC should review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. Thereafter, the AMC should readjudicate the merits of the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. 4. The Veteran should also be furnished an SOC for the issues of service connection for major depressive disorder and sleep apnea, and should be notified of the need to file a timely substantive appeal should he wish the Board to address these matters. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs