Citation Nr: 1106357 Decision Date: 02/16/11 Archive Date: 02/28/11 DOCKET NO. 09-03 510A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for a seizure disorder. 5. Entitlement to a rating in excess of 10 percent for irritable bowel syndrome, effective July 12, 2006 through November 6, 2008. 6. Entitlement to a rating in excess of 30 percent for irritable bowel syndrome, effective November 7, 2008. WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Harold A. Beach INTRODUCTION The Veteran served on active duty from August 1981 to June 1991. This matter came to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the RO. In part, the RO raised the Veteran's rating for his service-connected irritable bowel disease from noncompensable to 10 percent, effective July 12, 2006. In an October 2009 rating action, the RO raised the Veteran's rating for his service-connected irritable bowel disease to 30 percent, effective July 12, 2006. Although that was the highest schedular rating available under 38 C.F.R. § 4.114, Diagnostic Code 7319, the Board retained jurisdiction, as the Veteran still had the possibility of a higher rating through the use of an alternative diagnostic code or on an extraschedular basis. 38 C.F.R. § 3.321(b)(1) (2010). In April 2010, during the course of the appeal, the Veteran had a video conference with before the Veterans Law Judge whose signature appears at the end of this decision. In March 2008, during the course of the appeal, the Veteran's representative (AMVETS) revoked its power of attorney on behalf of the Veteran. In October 2009, the RO noted that it had no record of the Veteran appointing a service organization or other representative to assist him with his claims. The RO informed the Veteran that he could contact it for a listing of the recognized veterans' service organizations and/or representatives. The RO also informed the Veteran that the veterans' service organizations , which were recognized to provide services to the veteran community, could also help with any questions. The Veteran did not respond to that information. In March 2010, the RO informed the Veteran that it had certified his appeal to the Board and that it was transferring his records to the Board's offices in Washington, D.C. The RO noted that under the Board's Rules of Practice, he had 90 days from the date of the letter, or until the Board issued a decision in his case, whichever came first, to appoint a representative to represent him before the Board, or change a previously chosen representative. The Veteran did not respond to that notice. At his April 2010 video conference, the Veteran was unrepresented. In light of the foregoing, the Board will proceed as if the Veteran does not wish to be represented in this case. REMAND An Occupational Health Examination report, dated during the Veteran's service in December 1983 shows that he performed spray painting, stripping, and cleaning of aircraft parts and that his duties exposed him to multiple chemicals, including toluene, xylene, methyl ethyl ketone (MEK), and ethyl acetate. Information from the Department of Defense, dated in 1991, shows that chemical such as toluene and xylene can cause brain and nervous system damage. The Veteran's service personnel records have not been requested for association with the claims folder. However, records such as his enlisted evaluation reports could show his duties performed during service and any associated chemical exposure. In January and March 1992, the VARO in Phoenix, Arizona denied the Veteran's claim of entitlement to a left knee disorder. In July 2006, the Veteran requested that such claim be reopened. In its April 2007 rating action, the Indianapolis RO denied the Veteran's request to reopen his claim of entitlement to service connection for a left knee disorder. The RO also denied the Veteran's claim of entitlement to service connection for a right knee disability. In a Notice of Disagreement received in March 2008, the Veteran disagreed with the RO's decision to deny service connection for a right knee disability. In so doing, the Veteran alluded to the fact that the United States Postal Service had declined to hire him because of his knee problem. In reviewing the record, the Board notes a September 1991 letter in which the United States Postal Service had declined to hire the Veteran due to a left knee disability. During his April 2010 video conference before the undersigned Veteran's Law Judge, the Veteran stated, in effect that he was seeking entitlement to service connection for a left knee disability. While he acknowledged that he did not really have anything with respect to his right knee, he did not, in fact, withdraw that issue from the appeal. Construed in a light most favorable to the Veteran, the Board finds that the Veteran's March 2008 Notice of Disagreement is applicable to the Veteran's request to reopen his claim of entitlement to service connection for a left knee disorder, as well as his claim of entitlement to service connection for a right knee disability. However, the Board notes that he has not yet been issued a Statement of the Case with respect to his request to reopen his claim of entitlement to service connection for a left knee disorder. Since the Veteran submitted a timely Notice of Disagreement with respect to his request to reopen his claim of entitlement to service connection for a left knee disorder, he must be issued a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). The record shows that after he left service, the Veteran resided in the Phoenix, Arizona area until 1995, when he moved to the jurisdiction of the Indianapolis RO. Records obtained through the Social Security Administration show the Veteran's treatment at the Phoenix and Indianapolis VA Medical Centers (MC's) from July 1994 through April 2002; however, those records are effectively cut in half and show the bottom portion of the record only. In this regard, VA has not requested all of the Veteran's records directly from the Phoenix VAMC. In addition to the records obtained through the Social Security Administration, VA has obtained records from Indianapolis VAMC reflecting the Veteran's treatment from October 2003 through August 2006. However, it does not appear that a full set of the Veteran's VA treatment records have been associated with the claims folder. During his most recent VA general medical and otolaryngologoical examinations in November 2008 and during his most recent VA gastrointestinal examination in September 2009, the Veteran's claims file was not provided to the examiner for review in conjunction with those examinations. Finally, the Board notes that during his hearing, the Veteran testified that he was to have a CT scan with respect to his irritable bowel syndrome. He did not state where that CT scan was to take place. In light of the need for further development, the case is remanded for the following actions: 1. Issue the Veteran a Statement of the Case concerning his request to reopen a claim of entitlement to service connection for a left knee disorder. If, and only if, the Veteran completes his appeal by filing a timely substantive appeal on the aforementioned issue should that issue be returned to the Board. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202 (2010). 2. Request that the National Personnel Records Center provide the Veteran's service personnel records, including, but not limited to, his enlisted evaluation reports. Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non- existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(2) (2010). 3. Request records reflecting the Veteran's treatment at or through the Phoenix VAMC from 1991 through 1995. Such records must be requested directly from the VAMC and should include, but are not limited to, discharge summaries, consultation reports, X-ray reports, laboratory studies, daily clinical records, doctor's notes, nurse's notes, and prescription records. Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non- existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(2) (2010). 4. Request records reflecting the Veteran's treatment at or through the Indianapolis VAMC from April 2002 through June 2003 and from August 2006 through the present. Such records must be requested directly from the VAMC and should include, but are not limited to, discharge summaries, consultation reports, X-ray reports, laboratory studies, daily clinical records, doctor's notes, nurse's notes, and prescription records. Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non- existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(2) (2010). 5. Request that the Veteran provide the name and address of the health care provider scheduled to give him a CT scan in relation to his irritable bowel syndrome. Also request that the Veteran proved the name and address of the facility where that CT scan was to be performed, as well as the date of that procedure. Then request the report of that CT scan directly from the health care provider or facility identified by the Veteran. If the entity providing the CT scan is a department of agency of the Federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non- existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(2) (2010). If the entity providing the CT scan is not affiliated with the Federal government, and the requested records are unavailable, notify the Veteran in accordance with the provisions of 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(2) (2010). A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. 6. When the actions in parts 2, 3, 4, and 5 have been completed, schedule the Veteran for a neurologic examination to determine the nature and etiology of any seizure disorder found to be present. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If seizure disorder is diagnosed, the examiner must identify the Veteran's symptoms supporting the diagnosis. The examiner must also render an opinion, with complete rationale, as to whether it is at least as likely as not (50/50 chance) that the Veteran's seizure disorder is the result of his chemical exposure in service. The Veteran is advised that it is his responsibility to report for the examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2010). If the Veteran failures to report for the VA examination, a copy of the notice to the Veteran scheduling the examination must be associated with the claims folder. If any notice that was sent was returned as undeliverable, that fact must be noted in writing. 7. When the actions in parts 2, 3, 4, and 5 have been completed, schedule the Veteran for a gastrointestinal examination to determine the extent of his service- connected irritable bowel syndrome. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must identify the Veteran's symptoms supporting the diagnosis of irritable bowel syndrome. The Veteran is advised that it is his responsibility to report for the examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2010). If the Veteran failures to report for the VA examination, a copy of the notice to the Veteran scheduling the examination must be associated with the claims folder. If any notice that was sent was returned as undeliverable, that fact must be noted in writing. 8. When the foregoing actions have been completed, undertake any other indicated development, such as scheduling any additional VA examinations. If additional VA examinations are scheduled, the claims file must be made available to the examiner for review prior to the examination. If no further development is warranted, readjudicate the issues of entitlement to service connection for a right knee disability, a left knee disability, sleep apnea, and a seizure disorder. Also readjudicate the issues of entitlement to a rating in excess of 10 percent for irritable bowel syndrome, effective July 12, 2006 through November 6, 2008 and entitlement to a rating in excess of 30 percent for irritable bowel syndrome, effective November 7, 2008. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). ______________________________________________ FRANK J. FLOWERS 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) (2010).