Citation Nr: 1237134 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-00 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a bilateral eye disability (claimed as left eye trauma and bilateral eye retinal degeneration). 2. Entitlement to service connection for prostatitis. 3. Entitlement to service connection for epididymitis. 4. Entitlement to an initial compensable evaluation for left hip bursitis. 5. Entitlement to an initial compensable evaluation for right hip bursitis. 6. Entitlement to an initial compensable evaluation for lumbar spine strain. 7. Entitlement to an initial compensable evaluation for cervical spine strain with disc disease and arthritis. 8. Entitlement to an initial compensable evaluation for sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to August 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement in March 2008. A statement of the case was issued in December 2008 and the appeal was perfected the same month. The claims on appeal have been recharacterized on appeal as they appear on the cover page of the instant decision. The Veteran presented testimony before the Board in May 2012. The transcript has been associated with the claims folder. Additional records were submitted after the March 2010 supplemental statement of the case (SSOC) was issued. The Veteran waived initial RO consideration of the newly submitted evidence and as such, the records were considered in preparation of this remand. 38 C.F.R. § 20.1304(c) 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 A preliminary review of the record reveals that the matters are not ready for appellate disposition. The Veteran contends that his service-connected bilateral hip bursitis, lumbar spine strain, and cervical spine strain have worsened in severity. Notably, he asserts that he has increased pain in his hips, back, and neck, as well as decreased range of motion and difficulty with prolonged standing and driving. He also contends that his sinusitis continues to be productive of headaches and requires occasional treatment with antibiotics, which is supported by outpatient treatment records recently submitted by the Veteran. The last VA examination with regard to the hips, back, neck, and sinuses was in December 2007, almost five years ago. The Board cannot ascertain to what extent the disabilities have increased in severity, if at all, without a new VA examination. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, where there is evidence of a material change in the Veteran's condition or as in the instant case, when the Veteran asserts that the service-connected disabilities in question have undergone an increase in severity since the time of his last VA examinations in 2007 or new records show a potential increase in severity as in the case of sinusitis, the prior VA examination reports may be inadequate for rating purposes and a new VA examination is required. 38 C.F.R. § 3.327(a); See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The record for appellate review of the claims for prostatitis and epididymitis compiled to this date is incomplete. A review of outpatient treatment records from Peterson Air Force Base (entry dated June 2009) shows the Veteran sought treatment from a private provider for his prostatitis and epididymitis. Records of such treatment have not been associated with the appellate record. Any such records outstanding are likely to contain information pertinent to the matters on appeal, and must be secured. 38 C.F.R. § 3.159(c)(1). In claims seeking service connection, VA must arrange for an examination to secure a nexus opinion [to service, i.e.] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran testified that he currently suffers from the same problems associated with prostatitis and epididymitis as he did in service, to include, but not limited to, pain, swelling, and tenderness of the testicles, as well as difficulty with urinating. He further testified that he suffers from blurred vision and headaches as a result of eye trauma sustained in service. Additionally, he maintains that he was first diagnosed with retinal degeneration in service. His service treatment records show multiple complaints of pain in the scrotum and testicles, feelings of enlarged and boggy prostate, and trouble with urinating. He was diagnosed with epididymitis, prostatic hypertrophy, and prostatitis. He was also treated for corneal abrasion to the right eye (the Veteran claimed it was the left eye) sustained from a plastic piece of a windshield wiper blade. He also complained of flashers and floaters. He was variously diagnosed with myopia and presbyopia, as well as bilateral lattice degeneration. Post service, the December 2007 VA examiner found no residual symptoms of prostatitis or epididymitis per the Veteran; however, the Veteran disputes these statements. Medical records dated in 2008 and 2009 show continued complaints of groin and scrotal pain, and urinary urgency, as well as treatment for benign prostatic hypertrophy. He has also complained of blurred vision, eye pain, and itchiness. Peripheral lattice degeneration was noted in 2009, as well as myopic astigmatism with presbyopia. A VA examination to secure medical nexus opinions with respect to his claims for epididymitis, prostatitis, and a bilateral eye disability is necessary. Additionally, with regard to the claims for prostatitis and epididymitis, because it appears that pertinent treatment records are outstanding (and as it essential that each disability be viewed in relation to its history), a new examination is also necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify any (and all) providers of all evaluations and/or treatment he has received for the claimed disabilities, and to provide releases for VA to obtain records of all such private evaluations and/or treatment (specifically including all outstanding records of evaluations and/or treatment for prostatitis and epididymitis). If any identified private provider does not respond to the RO's request for records sought, the Veteran must be so advised, and reminded that ultimately it is his responsibility to ensure that private medical records are received. 2. After the development sought above is completed, the RO should schedule the necessary VA examination to ascertain the current nature and severity of the Veteran's service connected hips, lumbar spine, and cervical spine. The Veteran's entire claims file (to include all records electronically stored in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination(s). If the examiner does not have access to Virtual VA, any relevant records in Virtual VA must be printed and associated with the claims file for the examiner to review. All indicated studies, to include range of motion and repetitive testing, should be performed , by the examiner for the evaluation of the Veteran under the pertinent rating criteria for the hips and spine on appeal. All examination findings should be reported to allow for application of VA rating criteria. 3. After the development in paragraph 1 is completed, the RO should schedule the necessary VA examination to ascertain the current nature and severity of the Veteran's service connected sinusitis. The Veteran's entire claims file (to include all records electronically stored in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination(s). If the examiner does not have access to Virtual VA, any relevant records in Virtual VA must be printed and associated with the claims file for the examiner to review. All indicated studies, to include x-rays, should be performed by the examiner for the evaluation of the Veteran under the pertinent rating criteria for the sinuses on appeal. All examination findings should be reported to allow for application of VA rating criteria. 4. After the development in paragraph 1 is completed, the RO should schedule the necessary VA eye and genitourinary examinations to ascertain the current nature and etiology of the claimed epididymitis, prostatitis, and bilateral eye disability. The Veteran's entire claims file (to include all records electronically stored in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiners in conjunction with the examinations. If the examiners do not have access to Virtual VA, any relevant records in Virtual VA must be printed and associated with the claims file for the examiner to review. Any indicated tests or studies must be completed. The examiners should describe all findings in detail. The examiners must explain the rationale for all opinions, citing to supporting factual data/clinical findings. Based on review of the record and examination of the Veteran the examiners should offer opinions as to whether or not (a) the Veteran currently has epididymitis, prostatitis, and a bilateral eye disability (including retinal degeneration) and (b) if so, whether any such diagnosed disability entity is at least as likely as not (a 50 % or greater probability) due to or the result of the Veteran's active military service. The examiner must make specific reference to the Veteran's service treatment records, which contain treatment for epididymitis, prostatic hypertrophy, prostatitis, right corneal abrasion, and bilateral lattice degeneration. 5. The RO should then re-adjudicate the issues on appeal. If any remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ ALAN S. PEEVY 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) (2011).