Citation Nr: 1301646 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-26 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for disability variously referred to as urinary bladder disability and/or prostate cancer. 2. Entitlement to service connection for arthritis of the right foot. 3. Entitlement to service connection for arthritis of the left foot. 4. Entitlement to service connection for arthritis of the toes of the left foot. 5. Entitlement to service connection for arthritis of the toes of the right foot. 6. Entitlement to service connection for arthritis of the bilateral hands. 7. Entitlement to service connection for arthritis of the bilateral arms, including the elbows. 8. Entitlement to service connection for arthritis of the bilateral shoulders. 9. Entitlement to service connection for arthritis of the cervical, thoracic, and lumbar spines. 10. Entitlement to an initial compensable evaluation for residuals of fracture to the right great toe. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran had active duty service from May 1959 to March 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2004 and September 2005 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2009, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. In March 2011, the Board remanded the above claims for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. In the March 2011 decision and remand, the Board referred several issues, which do not appear to have been developed while the claims were on remand. The Board will repeat the referrals again. The record reflects that during the course of this appeal, the Veteran has raised several additional claims of entitlement to service connection for disabilities not currently on appeal. Some of these claims appear to be formally pending RO adjudication; a March 2009 RO memorandum in the claims file indicates that the RO initiated action on claims of entitlement to service connection for arthritis of the bilateral knees, hips, and pelvis. The additional claim of entitlement to service connection for eye disabilities has been raised repeatedly in the Veteran's contentions, but is not clearly included with any pending RO adjudication documented in the claims file. Furthermore, the Veteran's October 2009 Board hearing testimony appears to raise a claim of entitlement to service connection for disabilities as residuals of prostate cancer. Additionally, in some of the Veteran's various written presentations conveying his contentions, including in April 2009, the Veteran has suggested that his documented in-service loss of sensation in the toes of his feet (shown in a February 1962 service treatment note) was, itself, a manifestation of a chronic disability which persists to the present day. This symptom is not apparently associable with the arthritis pathology currently on appeal, and the Veteran's contention appears to also suggest that the loss of sensation in his toes may be related to exposure to herbicides (which he also contends may have occurred during his service). The Veteran has also contended that the totality of his current diagnostic health profile, overall, establishes that it is probable that he was exposed to herbicide agents during service; this contention may be intended to raise other specific service connection claims for other disabilities and/or support a theory of entitlement to service connection for a claim currently on appeal. These issues are again referred to the RO for appropriate action. The appellant has submitted a tremendous quantity of documentation, much of it not having yet been reviewed at the Agency of Original Jurisdiction (AOJ). However, in repeated written statements the appellant expressly waived preliminary AOJ review of the new evidence in accordance with 38 C.F.R. § 20.1304 (2012). Specifically, he wrote that any document he submitted beginning in November 2012 would be waived. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board regrets that another remand is necessary before it can decide the issues on appeal. The reasons for the remand are explained below. The Board finds there are multiple private medical records that need to be obtained before the Board can make an informed decision as to the claims on appeal. For example, the Veteran has stated that he received treatment from Dr. E. W. Williams II from 1989 to 1995 for urinary and arthritis problems. See statement received on March 23, 2005; see also October 2009 Board hearing transcript on page 12 (where Veteran reported Dr. Williams having treated him for 22 years). Attached to the March 2005 statement were three private medical records dated in 1989, two of which are signed by Dr. Williams and one of which is signed by Dr. J.C. Bado. There is no indication in the record that an attempt to obtain any and all of Dr. Williams's records, which may include Dr. Bado's, have been made. The Board notes that both doctors's names are on the stationery of the three documents, which would indicate they had a shared practice. Thus, the Board will request the Veteran give VA permission to obtain records directly from Drs. Williams and Bado. In other words, the Veteran should not submit the records himself. Additionally, in a VA Form 21-4142, Authorization and Consent to Release Information to VA, signed by the Veteran in May 2003, he wrote he had been treated by Dr. Hill in Lee County, Florida, from January 1976 to July 1980 for bladder complaints. See Form (seventh doctor listed). There has never been an attempt to obtain these records, which may be because the Veteran did not provide sufficient information for VA to seek to obtain those records. The Board will ask the Veteran to attempt to obtain the necessary information so that VA can seek to obtain the records, since they are relevant to the Veteran's claim involving a bladder disability. In multiple records showing x-rays, CT scans and MRIs for the various joints, it shows that the referring physicians are Drs. Sherrard L. Hayes and Brian B. McKnight. See, e.g., records from Diagnostic Radiology Center, dated in December 2004, January 2005, and February 2005 (showing Dr. Hayes as the referring physician) and records from Radiology Imaging Associates, dated July and August 2004 (showing Dr. McKnight as the referring physician). The Board cannot find the records from these physicians (versus the physicians to whom the Veteran was referred) in the claims file. Since these records pertain to joint disabilities, the Board finds they are potentially relevant to the issues on appeal. The Board will request the Veteran give VA permission to obtain records directly from Drs. Hayes and McKnight. Other medical records show the Veteran was treated by Dr. Tahir Naeem, Dr. Haze, and Dr. Masood Hashmi. See December 2008 consultation report from Dr. Zafar Kureshi (indicating the Veteran had seen Drs. McKnight and Haze in connection with joint pain and had been referred to Dr. Kureshi from Dr. Naeem); December 2008 progress note from podiatrist Adnan Shariff (who cc'ed Drs. Naeem and Hashmi on it); and February 2009. The Board will request the Veteran give VA permission to obtain records directly from these three physicians. In an October 2012 submission, the Veteran wrote, "[D]uring the early to mid 1980's, the Veteran/Claimant's abnormal frequency [with urination] became unbearable at night. In fact, the condition became so debilitating that the Veteran/Claimant turned himself in for a week at Shands Hospital, Gain[e]sville, Florida." See page 5. The Veteran claimed in this submission that such records were sent to the Veteran's claims file and should be part of the record. In searching through the claims file, the Board could not find the hospitalization record. The Board finds that an attempt to obtain these records must be made, as they are potentially relevant to one of the issues on appeal. As an aside, the Board notes that the website for that hospital indicates that the medical records, which is now named "Health Information Management," are no longer located within Shands Hospital at the University of Florida. See https://ufandshands.org/medical-records. This should assist the RO/AMC in obtaining the relevant records. The Veteran indicated he had received treatment for arthritis symptoms between 1963 and 1968 while serving in the merchant marines. See VA Form 21-4142, Authorization and Consent to Release Information to VA, received August 2003. He provided an address on the form, which facility was located in Arlington, Virginia. In September 2003, VA wrote to the facility and asked for the treatment record during that time period. See letter. That same month, the facility responded that it did not maintain those records but that the Gillis W. Long Hanson's Disease Center in Baton Rouge, Louisiana, maintained them. See letter. The Veteran wrote to the same Arlington, Virginia, facility and received the same response as VA did, informing the Veteran that the Baton Rouge, Louisiana, facility maintained those records. There has been no attempt to contact the Gillis W. Long Hanson's Disease Center to obtain these records. See 38 C.F.R. § 3.159(c)(1) (indicating that if VA is informed that a custodian has records, a request for the records from that facility should be made). Thus, the Board will request that the Veteran give VA permission to obtain the records, as they are potentially relevant to the issues on appeal. One of the bases for the March 2011 remand was to follow the instructions under the M21-1MR in verifying whether the Veteran was exposed to herbicides while in service in Japan and/or Guam. In the March 2011 remand instructions, the Board wrote the following, in part: VA is required to follow certain protocol when verifying exposure to herbicides in locations other than Vietnam or Korea. See M21-1MR IV.ii.2.C.10.1. This includes furnishing a detailed description of the alleged exposure to the Compensation & Pension Service and then requesting a review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as alleged. If the alleged exposure to herbicides remains unconfirmed, a verification attempt through the Joint Services Records Research Center (JSRRC) is required. These procedures have not yet been completed. Thus, the Board remands for compliance with M21-1MR. The Board notes that the AMC contacted the Department of Defense as to its inventory of herbicide operations. In the October 2011 Memorandum, the AMC claimed that such inventory showed "no evidence to suggest tactical herbicide agents, to include Agent Orange, were ever used, tested or stored in Japan or Guam." See Memorandum. It attached the documents received from the Department of Defense; however, these documents addressed Korea, Thailand, Guam, Canada, Puerto Rico, Johnston Island, India and Laos. See attached documents. The documents do not include Japan. Additionally, the AMC determined the Veteran was not exposed to herbicides. See October 2011 Memorandum. According to the M21-1MR, this means the AMC should have contacted the Joint Services Records Research Center (JSRRC). See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(o), step 5 (Did Compensation Service's review confirm that herbicides were used as alleged? •If yes, determine whether service connection is otherwise in order. •If no, go to Step 6.). Step 6 involves contacting the JSRRC if sufficient evidence has been submitted by the claimant or a finding by the JSRRC coordinator that sufficient evidence has not been received to do a search. See id. This step was not completed as to the Veteran's allegation of being exposed to herbicides in Guam. In other words, in the October 2011 Memorandum, the JSCRRC coordinator did not state whether the Veteran had provided sufficient information to contact JSRRC. (The steps for whether the Veteran was exposed to herbicides in Japan have not been followed, as described above.) Lastly, in the March 2011 Board decision, it granted service connection for residuals of fracture of right great toe. The RO effectuated the grant in an August 2011 rating decision and assigned a noncompensable evaluation, effective March 23, 2005. The Veteran submitted a timely notice of disagreement in October 2011. See submission. A statement of the case has not been issued. Thus, the Board is required to remand this claim for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue a statement of the case). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to provide VA with permission to obtain private medical records from the following physicians and facilities: (i) Drs. E.W. Williams II and J.C. Bado from 1989 to the present; (ii) Dr. Hill from Lee County, Florida, from January 1976 to July 1980 (the Veteran should provide the physician's first name); (iii) Dr. Sherrard L. Hayes from at least 2004 (the Veteran should provide the relevant dates of treatment); (iv) Dr. Brian B. McKnight from at least 2004 (the Veteran should provide the relevant dates of treatment); (v) Dr. Tahir Naeem from at least 2008 (the Veteran should provide the relevant dates of treatment); (vi) Dr. Haze from prior to 2008 (the Veteran should provide the physician's first name and the relevant dates of treatment); (vii) Dr. Masood Hashmi from at least 2008 (the Veteran should provide the relevant dates of treatment); (viii) Shands Hospital in Gainesville, Florida, from the early to mid 1980s; and (ix) Gillis W. Long Hanson's Disease Center in Baton Rouge, Louisiana, from 1963 to 1968. If there are any other relevant private medical records the Veteran wants VA to attempt to obtain in connection with his claims for service connection, he should provide permission and sufficient information so that the records can be requested on his behalf. 2. Obtain VA treatment records from September 2012 to the present. 3. The RO/AMC should then determine whether the Veteran was exposed to herbicides in Japan as alleged, pursuant to the requirements of the VA's Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(o). Specifically, the RO should contact C&P to request a review of DoD's inventory of herbicide operations in Japan. 4. As to the Veteran's allegation of herbicide exposure in Guam and depending on the response received from C&P as to herbicide exposure in Japan, the RO/AMC should make a determination as to whether the Veteran has submitted sufficient information to send a request to JSRRC for verification as to whether the Veteran was exposed to herbicide agents as alleged during his stop-over in Guam (and Japan, if applicable), in accordance with the instructions set forth in M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(o). If the Veteran has not submitted sufficient information, a memorandum by the JSRRC coordinator must be associated with the claims file that lays out the basis or bases for the determination. See id. All attempts to verify such exposure and responses received should be documented in the claims file. 5. Provide the Veteran with a statement of the case regarding his claim of entitlement to an initial compensable evaluation for residuals of a chip fracture to the right great toe. He should be advised of the time period in which to perfect an appeal. If the Veteran perfects an appeal, the case should then be returned to the Board for further appellate consideration 6. Thereafter, ensure that the development above has been completed in accordance with the remand instructions; undertake any other development action that is deemed warranted, including whether a new examination or an addendum from the November 2011 examination is warranted, depending on what the additional records show. 7. Then the RO/AMC should re-adjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant 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 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. 2012). ________________________________________ 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) (2012).