Citation Nr: 1132957 Decision Date: 09/07/11 Archive Date: 09/15/11 DOCKET NO. 05-33 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hypertension, claimed as high blood pressure, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, impaired memory, and fatigue, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for degenerative joint disease, claimed as joint pain, swelling, and muscle spasm, diagnosed as cervical spine spondylosis with left upper extremity radiculopathy, lumbosacral spine spondylosis with bilateral lower extremity radiculopathy, lateral epicondylitis, bilateral wrist strain, and bilateral knee osteoarthritis, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for a chronic skin disorder claimed as a rash, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to service connection for hematuria, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 6. Entitlement to service connection for sexual dysfunction, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 7. Entitlement to service connection for a chronic fatigue syndrome, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Veteran represented by: Louis A. De Mier-Le Blanc, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had verified active service from September 1961 to August 1963 and from January 1991 to August 1991. The Veteran had additional service with the Army Reserves, including service in Southwest Asia from February to August 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran requested a hearing before a decision review officer (DRO) in connection with the current claims. The hearing was scheduled and subsequently held in November 2005. The Veteran testified at that time and the hearing transcript is of record. The Veteran's claim was previously before the Board in February 2008 and remanded for additional evidentiary development. Unfortunately, another remand is required for the reasons discussed below. See Stegall v. West, 11 Vet. App. 268 270-71 (1998) (holding that a remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the Board's remand order). This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the Veteran if further action is required on his part. REMAND By way of history, the Veteran filed an original service connection claim for degenerative joint disease (claimed as swollen joints with pain and muscle spasms), high blood pressure, a skin condition, depression, memory loss, fatigue, sexual impotence, diverticulitis, and hematuria in March 1997. The Veteran alleged that these disabilities were the result of undiagnosed illness under 38 C.F.R. § 3.317. The RO denied the Veteran's claims by way of a rating decision dated October 1998. The Veteran was notified of this decision and did not appeal. The Veteran sought to reopen his service connection claims by way of a statement dated February 2004. The Veteran also alleged entitlement to service connection for chronic fatigue syndrome. The RO denied the Veteran's claims to reopen in the December 2004 rating decision on appeal on the basis that he failed to submit new and material evidence. The RO also denied the Veteran's claim of entitlement to service connection for chronic fatigue syndrome. The Veteran was notified of this decision and timely perfected an appeal. As noted above, the Veteran's claims were previously before the Board in February 2008. At that time, the Board determined that new and material evidence had been received to reopen the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, memory loss, sexual impotence, hematuria, a gastrointestinal disorder, joint pain, swelling, muscle spasms, a skin condition, and a fatigue disorder, all to include as due to undiagnosed illness under 38 C.F.R. § 3.317. The Board remanded for additional development the reopened service connection claims as well as the issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for high blood pressure. In particular, the Veteran's claims were remanded for additional evidentiary development, to include providing the Veteran proper notice for his new and material evidence claim for high blood pressure pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006); providing the Veteran proper notice pursuant to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) of the information and evidence needed to establish a disability rating and effective date for the disabilities on appeal; affording the Veteran the opportunity to identify outstanding private treatment records since discharge from service; obtaining complete copies of the Veteran's service treatment records (STRs) and service personnel records (SPRs), to include verifying the Veteran's dates of service in the Army Reserves, and affording the Veteran VA examinations. See February 2008 remand order. The Veteran's claim of entitlement to service connection for diverticulitis was subsequently granted by way of a rating decision dated May 2009. The RO assigned a non-compensable evaluation, effective February 12, 2004. To date, the Veteran has not expressed disagreement with the disability rating or effective date assigned. Therefore, this issue is not before the Board for appellate consideration. Pertinent STRs were obtained following the Board's February 2008 remand order. In particular, documentation reflected that the Veteran was diagnosed with arterial hypertension during a June 1986 Army Reserve physical evaluation. Similarly, a May 1991 Army Reserve physical evaluation for redeployment noted that the Veteran was taking prescribed anti-hypertensive medication. Where, as here, relevant service department records have been incorporated into the record since the prior final rating decision, VA is to reconsider the Veteran's claim without requiring new and material evidence to reopen the claim. 38 C.F.R. § 3.156(c) (2010). See also, Vigil v. Peake, 22 Vet. App. 63 (2008). Therefore, the Board has reframed the issue on appeal as entitlement to service connection for hypertension, claimed as high blood pressure, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. As noted above, the Board unfortunately finds that another remand is required in this case. See Stegall, 11 Vet. App. at 270-71. The Board's February 2008 remand order directed the following development: * Contact the Veteran and request that he provide the names and addresses of all health care providers from whom he received diagnosis and/or treatment for high blood pressure and other disabilities following his separation from active military service in August 1963 until the start of his second tour of duty in January 1991. Also attempt to obtain any other pertinent treatment records identified by the Veteran during the course of the remand, provided that any necessary authorization forms are completed. The Veteran should also be encouraged to submit any additional evidence that he may have in his possession pertaining to the issues on appeal. If no further treatment records exist, the claims file should be documented accordingly. * Request a report from the appropriate agency that lists the dates of each separate period of active duty for training and each separate period of inactive duty for training from August 1963 to the termination of the Veteran's Army Reserve commitment in 1997, and associate said with the claims file. * Schedule the Veteran for an appropriate examination with regard to his claims for service connection for an acquired psychiatric disorder, a memory loss disorder, sexual impotence, hematuria, ... joint pain/swelling/muscle spasms, a skin condition, and a fatigue disorder. Current Compensation and Pension Examination Gulf War Guidelines must be followed. All indicated tests should be performed, and all findings reported in detail. During the examination the Veteran should be requested to specify the situs(es) of his joint pain. NOTE: If any claimed disorder is determined to be attributable to a medically explained (known) illness or injury, the examiner must opine as to whether it is less likely than not (less than a 50 percent probability) or at least as likely as not (50 percent probability or greater) that said disorder was incurred during active military service; during a period of active duty for training; or during a period of inactive duty for training. All disabilities resulting from undiagnosed illnesses must also be identified in the examination report. The claims file must be made available to, and reviewed by, the examiner(s), and the examiner(s) must state that the claims file was reviewed in the report provided. A complete rationale for all conclusions and opinions must be provided. Emphasis in original. In March 2008, the RO contacted the National Personnel Record Center (NPRC) and requested that a report be sent "that lists the dates of each separate period of active duty for training and inactive duty for training from August 1963 to the termination of the Veteran's Army Reserve commitment in 19 (sic)." The record does not reflect that the NPRC responded to the RO's request. The Board further observes that the Veteran testified before a VA hearing officer that he retired from the Army Reserves in approximately November 2004. On remand, therefore, another attempt should be made to verify the Veteran's dates of active duty, active duty for training, and inactive duty for training in the Army Reserves. A November 2005 treatment record from J. Gonzalez, M.D. conveyed that the Veteran was seen on multiple occasions in 2001, 2002, 2003, 2004, and 2005 for his psychiatric complaints and was diagnosed with a major depressive disorder. The report of the August 2008 VA Compensation and Pension (C&P) psychiatric examination stated that the Veteran received ongoing "treatment in the community." Clinical documentation of the cited treatment is not of record. Accordingly, the Veteran should again be provided an opportunity to identify all non-VA sources of treatment for his disabilities since discharge from service. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA is required to make reasonable efforts to help the Veteran obtain records relevant to his claim, whether or not the records are in Federal custody). The Veteran was also afforded several VA Compensation and Pension (C&P) examinations in August 2008 in connection with the current claims. In reviewing the examination reports, the Board observes that they does not comply with the February 2008 remand order. In particular, on VA C&P Gulf War Guidelines and Joints examinations, the Veteran reported that he had "injured his back during a training exercise when he jumped from a truck" and did not inform the military authorities about the trauma. Following physical examination, the Veteran was diagnosed with "no current rash identified, prior diagnoses of seborrheic dermatitis, seborrheic keratosis, lentigo keloid, and a "skin condition" manifested by an "intermittent pruritic rash" of the forehead and the arms; cervical spondylosis with left upper extremity radiculopathy, lumbosacral spondylosis with bilateral lower extremity radiculopathy; "nocturnal muscle spasms-gastrocnemius bilateral as per the Veteran;" post-operative left shoulder rotator cuff tear residuals; bilateral lateral epicondylitis; bilateral wrist strain; osteoarthritis of the knees, and a left tibial tuberosity bone spur. The examiner opined: Except for a visit for neck pain referring to the right shoulder, the [STR] does not demonstrate any injuries or complaints of pain to any joints or the spine. Therefore, there is little evidence to support a claim that the joint conditions the Veteran has today are related to service. Also, there were no complaints of chronic fatigue, abdominal pain or rash during service. These problems are all related to clinical diagnoses made after service. There is little evidence to support a claim that chronic fatigue syndrome or a skin rash are related to military service. The Veteran was afforded VA C&P psychiatric and genitourinary examinations that same month. On contemporaneous VA psychiatric examination, the Veteran was diagnosed as having depressive disorder, not otherwise specified (NOS). The examiner further opined that "the claimed depressive disorder is not caused by or a result of the active military service nor during a period of inactive duty for training." On contemporaneous VA genitourinary examination, the Veteran was diagnosed with hematuria, erectile dysfunction, and sexual impotence. According to the examiner, the Veteran had some erectile dysfunction and microhematuria, but both were diagnosed after he was discharged from active duty. As the Veteran's complete periods of active duty, active duty for training, and inactive duty for training with the Army Reserves have not yet been verified, the Board finds that the VA examiners were clearly unable to accurately opine as to the etiological relationships, if any, between the diagnosed disorders and the Veteran's periods of active duty, active duty for training, or inactive duty for training. Accordingly, the Board finds these examinations to be inadequate for evaluation purposes. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996); see also, Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). On remand, therefore, the Veteran should be afforded new VA examinations to determine the nature and etiology of his claimed disabilities and their relationship to service, if any. Additionally, the Veteran should be provided with a duty-to-inform notice regarding his service connection claims that complies with the Veterans Claims Assistance Act (VCAA). Specifically, the Veteran should be provided complete notice of the type of information and evidence needed to substantiate his service connection claims on direct, presumptive, and secondary bases, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. He should also be provided with the information and evidence needed to establish a disability rating and effective date for the disabilities on appeal. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all VA and non-VA sources of treatment for his hypertension, acquired psychiatric disorder, degenerative joint disease, skin condition, hematuria, sexual dysfunction, and/or chronic fatigue disabilities since discharge from service that are not already of record. In particular, the Veteran should provide, or authorize VA to obtain, any such pertinent private records, including but not limited to any and all records from J. Gonzalez, M.D. All efforts to obtain these records should be fully documented. If these records cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010). In addition, send a duty-to-inform notice to the Veteran pursuant to the Veterans Claims Assistance Act (VCAA). The notice letter should provide information about the type of evidence necessary to establish service connection for the Veteran's claimed disabilities on direct, presumptive, and secondary bases, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. He should also be provided with the information and evidence needed to establish a disability rating and effective date for the disabilities on appeal. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Contact the appropriate service department and/or Federal agency to verify the Veteran dates of active duty, active duty for training, and inactive duty for training in the Army Reserves. In addition, obtain complete copies of the Veteran's personnel records (SPRs) and service treatment records (STRs) from his period of Army Reserve service. Facilities that should be contacted include, but are not limited to, the National Personnel Records Center (NPRC), the Defense Finance and Accounting Service (DFAS), the Records Management Center (RMC) and the Army Human Resources Command (HRC) in St. Louis, Missouri. See VBA Adjudication Manual, M21-1MR, III.iii.2.B.13.a. If these records do not exist or cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010). 3. Associate with the claims file all relevant VA medical treatment records pertaining to the Veteran that are not already of record since his discharge from service. If these records do not exist or cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010) and such finding should be included in the claims file. 4. After all of the above development has been completed, schedule the Veteran for a VA Gulf War Guidelines examination to ascertain the nature and etiology of the Veteran's claimed disabilities. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner should follow the established protocol for qualifying chronic disabilities under 38 C.F.R. § 3.317. In regard to any disorder(s) diagnosed, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater possibility) that the diagnosed disorder(s) can be related to the Veteran's period of active service, and particularly to his service in the Southwest Asia theater. The examiner must provide a complete rationale for any stated opinion. 5. Regardless of the results of the Gulf War Guidelines examination described immediately above, schedule the Veteran for a VA cardiovascular examination to assess the nature and etiology of his currently diagnosed hypertension. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to indicate when the Veteran's currently diagnosed hypertension was first manifested (i.e., prior to service, in service, or after discharge from service). In reaching this conclusion, the examiner is asked to comment on the significance, if any, of the June 1986 and May 1991 STRs which reflected treatment for hypertension or use of anti-hypertensive medications. If the examiner determines that the Veteran's hypertension clearly and unmistakably (i.e., undebatably) existed prior to service, the examiner is asked to express an opinion as to whether there was a permanent increase in the severity of the underlying pathology associated with the Veteran's hypertension which occurred during service, to include as a result of his service in Southwest Asia. If the examiner answers this question affirmatively, the examiner is then asked to express an opinion as to whether the increase in severity is clearly and unmistakably (i.e., undebatably) due to the natural progress of the disease. If the examiner determines that the Veteran's hypertension did not increase in severity during service, the examiner should indicate as such. Note: for VA purposes, temporary or intermittent flare-ups during service are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. If the examiner determines that the Veteran's hypertension did not clearly and unmistakably (i.e., undebatably) exist prior to service, the examiner is asked to opine as to whether it is at least as likely as not (i.e., 50 percent or greater possibility) that the Veteran's currently diagnosed hypertension is related to his period of active service and/or active duty for training, to include his service in Southwest Asia. The examiner must provide a complete rationale for any stated opinion. 6. Regardless of the results of the Gulf War Guidelines examination described immediately above, schedule the Veteran for a VA psychiatric examination to ascertain the nature and etiology of the Veteran's currently diagnosed psychiatric disabilities and their relationship to service, if any. The examiner is asked to ascertain the nature of all psychiatric disabilities and proper diagnoses thereof, including but not limited to depressive disorder, as set forth in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to indicate whether it is at least as likely as not (i.e., 50 percent or greater possibility) that the currently diagnosed psychiatric disorder, including but not limited to depressive disorder, is related to his period of active service and/or active duty for training, to include his service in Southwest Asia. If a chronic acquired psychiatric disorder is not diagnosed or otherwise identified, the examiner should specifically state whether the Veteran's depression, impaired memory, fatigue, and other psychiatric complaints are manifestations of an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness. A complete rationale is required for any stated opinion. 7. Regardless of the results of the Gulf War Guidelines examination described immediately above, schedule the Veteran for a VA orthopedic examination to address the nature and etiology of his claimed chronic joint/musculoskeletal disabilities and their relationship to service, if any. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to indicate whether it is at least as likely as not (i.e., 50 percent or greater possibility) that any identified chronic musculoskeletal disorder, including but not limited to cervical spine spondylosis with left upper extremity radiculopathy, lumbosacral spine spondylosis with bilateral lower extremity radiculopathy, lateral epicondylitis, bilateral wrist strain, and bilateral knee osteoarthritis, is related to his period of active service, active duty for training, and/or inactive duty training, to include his service in Southwest Asia or to his claimed in-service back injury jumping from a truck. If a chronic acquired musculoskeletal disorder is not diagnosed or otherwise identified, the examiner should specifically state whether the Veteran's musculoskeletal complaints are manifestations of an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness. A complete rationale is required for any stated opinion. 8. Regardless of the results of the Gulf War Guidelines examination described immediately above, schedule the Veteran for a VA skin examination to address the nature and etiology of his claimed chronic skin disorders, and their relationship to service, if any. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to indicate whether it is at least as likely as not (i.e., 50 percent or greater possibility) that any identified chronic skin disorder, including but not limited to seborrheic dermatitis, seborrheic keratosis, lentigo keloid, and a "skin condition" manifested by an "intermittent pruritic rash" of the forehead and the arms, is related to his period of active service and/or active duty for training, to include his service in Southwest Asia. If a chronic skin disorder is not diagnosed or otherwise identified, the examiner should specifically state whether the Veteran's skin complaints are manifestations of an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness. A complete rationale is required for any stated opinion. 9. Regardless of the results of the Gulf War Guidelines examination described immediately above, schedule the Veteran for a VA urological examination to address the nature and etiology of his chronic hematuria and sexual dysfunction and their relationship to service, if any. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to indicate whether it is at least as likely as not (i.e., 50 percent or greater possibility) that any identified chronic genitourinary disorder manifested by hematuria and/or sexual dysfunction is related to his period of active service and/or active duty for training, to include his service in Southwest Asia. If a chronic genitourinary disorder is not diagnosed or otherwise identified, the examiner should specifically state whether the Veteran's hematuria and sexual dysfunction are manifestations of an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness. A complete rationale is required for any stated opinion. 10. Regardless of the results of the Gulf War Guidelines examination described immediately above, schedule the Veteran for an appropriate VA examination to address the nature and etiology of his claimed chronic fatigue disorder, and its relationship to service, if any. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to indicate whether it is at least as likely as not (i.e., 50 percent or greater possibility) that any identified chronic fatigue disorder is related to his period of active service and/or active duty for training, to include his service in Southwest Asia. If a chronic fatigue disorder is not diagnosed or otherwise identified, the examiner should specifically state whether the Veteran's fatigue is manifestations of an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness. A complete rationale is required for any stated opinion. 11. After the requested examinations have been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. The examination reports should be returned to the examiners if they are deficient in any manner. 12. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted and 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). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response before the case is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ D. TRASKEY Acting 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 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) (2010).