Citation Nr: 1301989 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 05-02 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for a headache disorder. 4. Entitlement to service connection for an acquired psychiatric disorder. 5. Whether new and material evidence has been submitted reopen the claim for service connection for fibromyalgia. 6. Whether new and material evidence has been submitted reopen the claim for service connection for erectile dysfunction. 7. Whether new and material evidence has been submitted reopen the claim for service connection for peripheral neuropathy of the upper and lower extremities. 8. Whether new and material evidence has been submitted reopen the claim for service connection for posttraumatic stress disorder (PTSD). 9. Whether new and material evidence has been submitted reopen the claim for service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from December 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2002, August 2003, and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In May 2009, the Veteran testified before a Veterans Law Judge (VLJ) during a Travel Board hearing at the RO. Thereafter, in August 2010, the Board remanded the Veteran's claims for service connection for a neck disorder, for low back disorder, for a headache disorder, and for an acquired psychiatric disorder to the Appeals Management Center (AMC) for additional development. While this case was in remand status to the AMC, the VLJ that conducted the May 2009 hearing left the Board. As such, in September 2012, the Veteran testified before the undersigned acting VLJ during a second Travel Board hearing at the RO. The transcripts of both the May 2009 and September 2012 hearings are of record. Additionally, in its August 2010 remand, the Board noted that the Veteran had raised the issue of entitlement to nonservice-connected pension benefits in January 2003. The Board referred the issue to the RO for consideration. Further review of the claims folder reflects that the RO adjudicated the Veteran's January 2003 claim for pension benefits in an August 2003 notice letter. The Veteran has not otherwise raised the issue since August 2003, and as such, no further consideration of the issue is warranted at this time. As will be discussed in further detail below, this appeal is being REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board notes that in an October 2009 rating decision, the RO determined that new and material evidence had not been submitted to reopen the Veteran's claims for service connection for fibromyalgia, for erectile dysfunction, for peripheral neuropathy of the upper and lower extremities, for PTSD, and for COPD. The Veteran was notified of that decision on November 2, 2009. On October 12, 2010, within one year of notice to the Veteran of the adverse October 2009 rating decision, the AMC received from the Veteran a letter, dated in September 2010, which included written argument pertaining to why he was entitled to benefits for fibromyalgia, for erectile dysfunction, for peripheral neuropathy of the upper and lower extremities, for PTSD, and for COPD. In this case, liberally read, the Board accepts the September 2010 written argument as a valid and timely notice of disagreement (NOD) with the RO's October 2009 denial of the Veteran's claims. A statement of the case (SOC) has not been issued; thus, remand of these claims is necessary to accord the RO an opportunity to issue an SOC and to accord the Veteran an opportunity to perfect an appeal of these issues. 38 C.F.R. § 19.9(c) (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Veteran's claim, or claims, should be returned to the Board if, after issuance of an SOC, the Veteran perfects a timely appeal of the claim, or claims, by filing of a timely substantive appeal. Otherwise, with regard to the claims for service connection for a neck disorder and for a low back disorder, the Veteran has contended that during service, he incurred trauma to his neck and back associated with helicopter hard landings as well as a fall out of a helicopter in flight. In this regard, the Veteran has reported having been thrown against the bulkheads of helicopters during various hard landings. He has also reported having experienced a whiplash affect to his neck and back from a safety harness that caught him when he fell out of a helicopter. Furthermore, the Veteran has reported that during training exercises he jumped out of low hovering helicopters to help to attend to mock casualties. The landings after jumping caused him back pain. Thus, the Veteran alleges that the stress and trauma to his neck and back from the above noted incidents in service have caused his current cervical and lumbar spine disabilities. As the Board noted in its August 2010 remand, the Veteran's service personnel records confirm that his duties involved different medical groups and companies while stationed in Germany, to include the 629th Medical Company, the 62nd Medical Group, as well as the 15th Medical Attachment (helicopter ambulance). (The Veteran's personnel records do not reflect training as a medical corpsman/medic or a doctor. His military occupational specialty (MOS) was clerk typist.) The Board also notes that the Veteran's lay statements are competent to provide evidence of the occurrence of observable events, such as those reported above, or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). With respect to the medical evidence of record, the Board notes that the claims folder contains opinions from the Veteran's treating VA and private physicians. The opinions relate the Veteran's current cervical and lumbar spine disabilities to his reported trauma in service. At the same time, however, a review of the opinions does not reflect any rationale or explanation for the clinicians' findings. See e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (An examination report must contain clear conclusions and supporting data, as well as "a reasoned medical explanation" connecting the data and conclusions); Bloom v. West, 12 Vet. App. 185, 187 (1999) (The value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support his opinion). The Veteran was provided a VA examination in December 2010 associated with his claimed neck and low back disabilities. In a report of December 2010 VA examination, the examiner noted the following, The Veteran relates numerous occurrences where impact events occurred while exiting helicopters/jumps/etc from 10-20 foot ranges resulting in back aches and pain which were not reported and for which no records exist. Following examination of the Veteran and reported review of his service treatment records (STRs), the examiner commented that the Veteran's cervical and lumbar spine disabilities were related to the Veteran's period of service. In particular, the examiner opined the following, This Veteran provides a history of activity in military service consisting of numerous episodes which could result in impact type forces specifically resulting in compressive vertebral action resulting in increased intervertebral space compression (compression of nucleus pulposis) . . . [with] fall/jumping/twisting/over extending/ over bending all contributing to facet arthropathy/disc and vertebral degenerative change . . . Repeated episodes as would be experienced in his job description and activity profile would result in repeated micro cellular bone and disc injuries which when repeated over time would result in symptomatic, physical and radiographic evidence for degenerative spine changes . . . With regard to the above medical opinion, the examiner considered the Veteran's reported history of jumping out of helicopters. However, nothing about the Veteran's post-service history was reported or discussed by the examiner. The Board notes that post-service medical evidence reflects the Veteran's reported history of being a long time surfer and skier. (See May 1996 VA treatment record, Volume 7 of the claims folders.) These activities would appear to also be consistent with falling, jumping, twisting, over extending, and over bending. Furthermore, in both VA and private treatment records, the Veteran reported that in 1984 he suffered an injury to his back diving off a rock into the water. In this regard, an April 1995 VA treatment record noted the Veteran's complaint of back pain for 11 years following an injury while diving. (See Volume 1 of the claims folders.) An August 1996 VA treatment record notes the Veteran's history of neck and back pain for 12 years, and that he remembered diving off a rock reportedly 30 feet above the water. (See Volume 1 of the claims folders.) An application for VA benefits (VA Form 21-526), apparently received in May 1997, reflects the Veteran's report of a "major lower back displacement" in 1984. (See Volume 1 of the claims folders.) Additionally, a February 1999 private treatment record (See Volume 5 of the claims folders) notes the Veteran's prior medical history as follows, Chronic discogenic disease with lumbar and cervical involvement. The lumbar disc dates back to 1984 when [the Veteran] was doing a 40 foot dive and had a low back pain as a consequence. However, the actual disc problems began in 1992 . . . He developed cervical disc [symptoms] in 1994 . . . It is important to note that the December 2010 VA examiner's opinion appears to identify the genesis of the Veteran's current cervical and lumbar spine disabilities to the reported in-service trauma associated with jumping out of helicopters, notwithstanding the lack of any report of or treatment for neck or back pain in service. As there is no reference to the 1984 back injury in the report of December 2010 VA examination, or the Veteran's active post-service lifestyle that included surfing and skiing, the Board will assume that the VA examiner was not aware of the post-service trauma to the Veteran's spine and subsequent reports of neck and back pain. Whether the examiner's opinion would have been different had he considered the Veteran's post-service medical history, in particular, the 1984 diving injury, is unknown. Therefore, in light of the above, and the need for the examiner to consider the Veteran's complete medical history prior to rendering any opinion, the Veteran's claims folder should be returned to the examiner who conducted the December 2010 VA examination. The examiner should review his examination report and its findings, as well as review the relevant post-service medical evidence, to include that associated with the Veteran's back injury in 1984 and his hobbies of surfing and skiing. Thereafter, the examiner should provide an addendum medical opinion with regard to the etiology of the degenerative changes in the Veteran's cervical and lumbar spines. Any opinion provided must be support by a reasoned medical explanation with relevant data and conclusions. If the December 2010 examiner is no longer available to provide the requested addendum opinion, the Veteran should be scheduled for an additional VA examination and the examiner asked to provide the requested information. With regard to requesting an addendum medical opinion, the Board acknowledges the United States Court of Appeals for Veterans Claims (Court) holding that it is not permissible for VA to undertake additional development if the purpose of that development is to obtain evidence against an appellant's case. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003); Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). However, the Court later distinguished Mariano, holding that VA may undertake the development of additional evidence if, as here, it is necessary to render an informed decision on the claim. Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Also, at his May 2009 Board hearing, the Veteran reported that he was claiming that his headaches were related to his spinal disabilities. However, in the Board's August 2010 remand instructions, the VA examiner was requested to comment on whether the Veteran's headaches were related to service and/or to any service-related disabilities. In the above noted report of December 2010 VA examination, the examiner commented that the Veteran's headaches were related to his neck disorder (cervical spine disability). The examiner did not otherwise comment on the medical probabilities that the Veteran's headaches were related to his period of service. In light of this remand, and notations in the Veteran's STRs regarding headaches, it would be helpful to the Board if the examiner opined on whether any headaches currently suffered by the Veteran could be related to his period of service. The Board acknowledges that the Veteran's claims for service connection for a neck disorder and for a low back disorder could affect his claims for service connection for an acquired psychiatric disorder; as such, the Board finds that those claims are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Hence, it follows that, any Board action on the claim for service connection for an acquired psychiatric disorder would, at this juncture, be premature. The Board notes that, the Veteran has argued that his psychiatric disorder is related to his spinal disabilities. (See May 2009 Board hearing transcript.) Furthermore, the Veteran reported per a May 2003 medical information release form (VA Form 21-4142), that he entered the VA system in the 1970s/1980s. At his September 2012 Board hearing, the Veteran reported that he first began receiving VA treatment in the late 1970s/early 1980s. In compliance with the Board's August 2010 remand, the RO requested from the West Los Angeles VA Medical Center (VAMC) treatment records prior to 1995 (1995 being the earliest date for records associated with the claims folder). Subsequently, records were received by the RO from the West Los Angeles VAMC dated from 1995 to 2001. In a January 2012 supplemental statement of the case (SSOC), the RO appears to report that there were no available VA treatment records from the West Los Angeles VAMC prior to May 1995. Otherwise, in a VA computer appointment listing (See Volume 2 of the claims folders), which was printed by the West Los Angeles VAMC in April 2002, the Veteran's earliest appointment date was listed as March 1995, and was described as "nurse triage." As such, it appears that the Veteran was possibly receiving treatment prior to May 1995. Furthermore, it not clear to the Board, in light of the response from the West Los Angeles VAMC, that a search of retired records was conducted. Therefore, in light of the need to remand the Veteran's claim for the development above, the RO should make a second request to the West Los Angeles VAMC for any available treatment records prior to May 1995. If records are unavailable, that fact should be documented in the claims folder and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1) (2012). Any negative response from the West Los Angeles VAMC should also include a comment with regard to a search of any retired records or that no retired records exist. Finally, the Veteran should be provided an opportunity to supplement the record on appeal with any relevant VA or private treatment records associated with his claims on appeal. The Board notes that the most recent West Los Angeles VAMC treatment records associated with the claims folder (to include the Virtual VA electronic file), are dated no later than November 2011. Accordingly, the case is REMANDED for the following action: 1. For the benefit of the examiner providing the addendum VA medical opinion, as discussed below in paragraph 4, the RO should not remove the Board's tabs in the claims folders (seven volumes). 2. Make a follow-up request to the West Los Angeles VAMC and request a search of that medical facility's retired records pertaining to the Veteran. (The Veteran has contended that he entered the VA system in the 1970s/1980s.) A comment concerning a search of retired records or that no retired records exist should be documented in the claims folder. If no additional records are located, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(c), (e). 3. In addition to the above, request that the Veteran identify any private or VA treatment he may have received for his claimed disabilities on appeal. After obtaining the appropriate release of information forms (where necessary), procure records of any treatment the Veteran has received, to include relevant records available through the CAPRI records system. The most recent VA treatment records (associated with the Virtual VA electronic file) are dated no later than November 2011. Records since this time should be sought. If any such records identified by the Veteran are not available, the Veteran should be so informed in accordance with the provisions of 38 C.F.R. § 3.159(e). 4. After completion of the above (and allowing a reasonable amount of time to obtain any identified records), the claims folder should be referred back to the VA examiner who conducted the December 2010 VA spine examination. The examiner should offer an addendum medical opinion based on a thorough review of the evidence of record. A copy of this remand must be made available to the examiner for review in connection with the requested addendum opinion. A notation should be made in the examiner's report that the claims folder and a copy of the Board's remand were available for review. (It is important that the examiner's review of the post-service medical evidence include the referenced VA and private treatment records identified in the body of the remand discussion, above. These records identify that the Veteran suffered a back injury in 1984 and was a long-time surfer and skier. In particular, records tabbed include VA treatment records dated in April 1995 and August 1996, as well as an application for VA benefits (VA Form 21-526), received in 1997. These records are found in Volume 1 of the claims folders. Also tabbed is a February 1999 private treatment record, which can be found in Volume 5 of the claims folders, and a May 1996 VA treatment record found in Volume 7 of the claims folders.) Thereafter, the examiner should again provide an opinion as to whether it is at least as likely as not that the Veteran's degenerative joint disease of the cervical spine and/or lumbar spine had its onset during service or is otherwise related to service. The examiner must provide an opinion that is supported by a reasoned medical explanation with relevant data and conclusions. Furthermore, the examiner should opine, notwithstanding his opinion in December 2010, whether it is at least as likely as not that the Veteran's claimed headaches, identified during the December 2010 VA examination, may also have had their onset during service or were otherwise related to service. The examiner, again, must provide an opinion that is supported by a reasoned medical explanation with relevant data and conclusions. If the December 2010 examiner is not available to provide an addendum opinion, or the opinion concerning the Veteran's claimed headaches, make arrangements for the file to be reviewed by another examiner who should be requested to supply the opinions. (If further examination of the Veteran is necessary to provide the requested opinions, the Veteran should be scheduled for an examination and the necessary opinions requested.) 5. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issues on appeal, to include consideration of the Veteran's VA treatment records associated with the Virtual VA electronic file. If any benefit sought is denied, the Veteran and his representative must be provided an SSOC and given an opportunity to respond before the case is returned to the Board for appellate review. 6. Also, provide the Veteran with an SOC pertaining to his October 2010 NOD of the RO's October 2009 denial of the claims for fibromyalgia, for erectile dysfunction, for peripheral neuropathy of the upper and lower extremities, for PTSD, and for COPD. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b) (2012). If a timely substantive appeal is not filed, the claim or claims should not be certified to the Board. If a timely substantive appeal is filed, the claim or claims should be returned to the Board for further appellate consideration, as appropriate and subject to the current appellate procedures. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ Thomas H. O'Shay 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 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).