Citation Nr: 1302425	
Decision Date: 01/23/13    Archive Date: 01/31/13

DOCKET NO.  06-03 399	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an initial disability rating greater than 10 percent prior to April 26, 2010 and a disability rating greater than 30 percent beginning April 26, 2010 for irritable bowel syndrome (IBS).

2.  Entitlement to an initial disability rating greater than 20 percent prior to May 13, 2011 and a disability rating greater than 40 percent beginning May 13, 2011 for herniated disc L5-S1, lumbar myositis.

3.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

4.  Entitlement to service connection for nasal pterygium claimed as a right eye disorder.

5.  Entitlement to service connection for presbyopia claimed as a right eye disorder.

6.  Entitlement to service connection for a disability alleged as claustrophobia.

7.  Entitlement to service connection for bilateral testicular hydrocele claimed as a left testicle disorder.

8.  Entitlement to service connection for onychomycosis, toenails in both feet, claimed as foot nails disorder.

9.  Entitlement to service connection for liver hemangioma claimed as liver mass.

10.  Entitlement to service connection for internal hemorrhoids.

11.  Entitlement to service connection for left shoulder adhesive capsulitis with bursitis and impingement.

12.  Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

April Maddox, Counsel


INTRODUCTION

The Veteran served on active duty from January 1976 to April 1976, from February 1982 to February 1985, from January 2002 to October 2002, and from February 2003 to June 2004.  In addition, it appears he also had service with the Army National Guard (ARNG), presumably with periods of active duty for training and inactive duty training which have not yet been confirmed.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2005, July 2005, September 2006, January 2009, and June 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), in San Juan, the Commonwealth of Puerto Rico. 

In the May 2005 rating decision, the RO granted service connection for IBS assigning a 10 percent disability rating effective June 12, 2004 (the date of the Veteran's claim), and denied service connection for nasal pterygium and presbyopia claimed as a right eye disorder, depressive disorder, claustrophobia, bilateral testicular hydrocele, and onychomycosis.  In the July 2005 rating decision, the RO, in part, granted service connection for lumbar spine herniated disc at L5-S1 and myositis assigning a 20 percent disability rating effective June 12, 2004.  In August 2005, the Veteran filed a notice of disagreement.  A statement of the case (SOC) was issued in November 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2006.  Notably, while the issue of entitlement to service connection for depressive disorder was timely appealed, by rating decision dated in December 2010, the RO granted service connection for major depressive disorder.  As such, that issue is no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

In the September 2006 rating decision, the RO denied service connection for PTSD, liver hemangioma, internal hemorrhoids, and left shoulder adhesive capsulitis with bursitis and impingement.  In February 2007, the Veteran filed a notice of disagreement.  An SOC was issued in May 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2007.  

In the January and June 2009 rating decisions, the RO denied service connection for hypertension.  In October 2009, the Veteran filed a notice of disagreement.  An SOC was issued in July 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2010.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file.  A review of the documents in such file reveals a February 2012 rating decision in which the RO, in part, granted a total disability rating based on individual unemployability (TDIU) effective May 13, 2011, increased the Veteran's disability rating for service-connected major depression disorder from 30 percent to 70 percent disabling effective May 13, 2011, increased the Veteran's disability rating for service-connected herniated disc L5-S1, lumbar myositis from 20 percent to 40 percent disabling effective May 13, 2011, granted service connection for left lumbar radiculopathy assigning a 20 percent disability rating effective May 13, 2011, and continued a 30 percent disability rating for the Veteran's service-connected IBS.  Notably, this February 2012 rating decision referenced several January 2012 VA examination reports which are not included either in the paper claims file or on Virtual VA.  Also included in the Virtual VA file are VA treatment records dated from May 2010 through January 2012.  The remainder of the documents in the file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

Initially, the Board notes that the RO last reviewed the issues regarding IBS, nasal pterygium and presbyopia, claustrophobia, bilateral testicular hydrocele, and onychomycosis, and the lumbar spine in a December 2006 supplemental statement of the case (SSOC). The RO last reviewed the issues regarding the liver hemangioma, internal hemorrhoids, and left shoulder in a May 2007 SOC.  The RO last reviewed the issue regarding hypertension in a July 2010 SOC.  Since these adjudications the RO has obtained VA and private treatment records dated through January 2012 and, according to a February 2012 rating decision, the Veteran was afforded several VA examinations for the claimed disabilities in January 2012.  In November 2012 correspondence the Veteran's representative waived RO consideration of this additional evidence.

In August 2005 correspondence, the Veteran requested service connection for a left knee disorder.  Notably, while this correspondence also serves as a notice of disagreement with regard to a July 2005 rating decision which denied service connection for a right knee disorder, the RO neither treated the statement about the left knee as disagreement with the denial of service connection for a right knee disorder or a claim for service connection for a left knee disorder.  A claim for service connection for a left knee disorder has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. 

The issues regarding IBS, presbyopia, bilateral testicular hydrocele, the lumbar spine, liver hemangioma, internal hemorrhoids, the left shoulder, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  There is competent evidence of a current diagnosis of PTSD which is related to the Veteran's fear of hostile military activity and a VA psychologist has confirmed that the stressor is adequate for the Veteran's service-connected major depressive disorder.  

2.  The Veteran's PTSD with associated panic attack symptom of claustrophobia cannot be dissociated from his service-connected major depressive disorder.

3.  The Veteran's recurrent right nasal pterygium first manifested during active military service.

4.  The Veteran's onychomycosis first manifested during active military service.


CONCLUSIONS OF LAW

1.  Service connection for PTSD with claustrophobia is established.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 4.125 (2012).

2.  Service connection for recurrent right nasal pterygium is established.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

3.  The claim of entitlement to service connection for claustrophobia is dismissed due to the absence of a controversy at issue.  38 U.S.C.A. § 7105(d) (West 2002). 

4.  Service connection for onychomycosis is established.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

This appeal arises out of the Veteran's assertion that he has PTSD as a result of traumatic stressors while serving in Iraq.  He also describes experiencing claustrophobia.  He reports that his recurrent right nasal pterygium was first treated during his last period of active service.  He has described the onset of onychomycosis during his last period of active service.

Legal Criteria

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty.  38 U.S.C.A. § 101(24).  That is to say, when a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty.  In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim.  See 38 U.S.C.A. § 101(2)-(24); Mercado-Martinez, 11 Vet. App. at 419.

Service connection for PTSD, in particular, requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125 (2002) (requiring PTSD diagnoses to conform to the criteria in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV)).

If a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  75 Fed. Reg. 39,843, 39,852 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)).


PTSD

The Veteran's service records show that he served in a designated imminent danger pay zone in Iraq from May 2003 to May 2004.  Service personnel records reflect no receipt of combat-related award or citation and no designation of participation in a combat campaign. 

Service treatment records show that the Veteran was referred for a psychiatric consultation in October 2003 and hand-written records submitted by the Veteran and dated in October/November 2003 show a diagnosis of adjustment disorder.

The Veteran submitted a claim for service connection for a psychiatric disorder in July 2004, approximately one month after his separation from service in June 2004.  He was thereafter afforded a VA psychiatric examination in September 2004.  At that time the Veteran reported experiencing psychiatric problems for the last five months.  The examiner diagnosed depressive disorder.  By rating decision dated in May 2005 the RO denied service connection depressive disorder and the Veteran perfected an appeal of that denial.  

In March 2006 the Veteran filed another claim for a psychiatric disorder, this time specifically for PTSD.  In an un-dated statement the Veteran described several stressors while stationed in Iraq from 2003 to 2004.  Specifically, witnessing the death of a fellow soldier and being fired upon while performing military police duties.  

In connection with this claim, the RO obtained VA outpatient treatment records which showed a positive screen for PTSD in September 2004, an impression of R/O (rule out) PTSD in June 2005, and a negative PTSD screen in October 2005.  Also in connection with this claim the Veteran submitted a February 2006 private psychiatric evaluation report from Dr. G.J.H.P. noting diagnoses of PTSD and panic disorder with agoraphobia, a March 2008 United States Army Health Clinic Medical Evaluation Board psychiatric evaluation showing a diagnosis of major depressive disorder, chronic, severe, with symptoms of PTSD as manifested by an exaggerated startle reaction, depressed mood, anxious affect, and psychomotor retardation.  The stressor was reported to be the Veteran's deployment as a military policeman in Baghdad from 2003 to 2004.  

The Veteran was afforded another VA psychiatric examination in November 2008 which diagnosed major depressive disorder.  The examiner also related the Veteran's current depression to his military service since there was no evidence in all the previous years of the Veteran's military service that he suffered any mental disorder or symptoms until he returned from Iraq.  It was noted that the Veteran did not meet the criteria for a diagnosis of PTSD.  

The Veteran was afforded a third VA psychiatric examination in November 2010 which, again, diagnosed major depressive disorder.  The examiner also related the Veteran's current depression to his military service since there was no evidence in all the previous years of the Veteran's military service that he suffered any mental disorder or symptoms until he returned from Iraq.  It was noted, again, that the Veteran did not meet the criteria for a diagnosis of PTSD.  

Subsequently, by rating decision dated in December 2010 the RO granted service connection for major depression disorder.  

In connection with this claim the RO also obtained records from the Social Security Administration (SSA).  Notably, the Veteran was awarded disability compensation benefits from SSA in May 2009 for affective/anxiety disorders.  Significantly, some of these treatment records show diagnoses of PTSD.  Specifically, a July 2009 private treatment record shows a diagnosis of PTSD.  

Initially, the Board notes that while the VA examiners in September 2004, November 2008, and November 2010 found that the Veteran did not have a diagnosis of PTSD, several private examiners have diagnosed PTSD, specifically, private psychiatric examination reports dated in February 2006, March 2008, and July 2009.  Additionally, several examiners, including the November 2008 and November 2010 VA examiners and the March 2008 private examiner have related the Veteran's psychiatric problems to traumatic experiences during his military service in Iraq. 

The Board also notes that there is no evidence to suggest that the Veteran engaged in combat with the enemy.  Service records do not reflect participation in combat situations or receipt of combat-related award.  There is no evidence or allegation of wound or injury potentially related to combat.  Accordingly, pursuant to VA regulation, the record must contain credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  

As above, VA recently published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the occurrence of a stressor based on a particular type of stressor.  The incidents the Veteran describes as stressors (in particular, witnessing the death of a fellow soldier and being fired upon while performing military police duties) are consistent with the place and circumstances of his service, as shown by his service personnel records and there is no clear and convincing evidence to the contrary.  

With regard to the third element, while neither the September 2004, November 2008, nor November 2010 VA examiners diagnosed PTSD, February 2006, March 2008, and July 2009 private examiners have diagnosed PTSD and have attributed the PTSD to the Veteran's service.  Furthermore, both the November 2008 and November 2010 VA examiner's attributed the Veteran's psychiatric problems with his military service.  With resolution of reasonable doubt in the Veteran's favor; his stressors are consistent with the circumstances of his service and his report of the stressors is sufficient without credible supporting evidence.

Also, it appears that the symptoms of the Veteran's PTSD overlap with his service-connected major depressive disorder.  When, as here, it is impossible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the veteran's favor and the symptoms in question attributed to the service-connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998)

In view of the foregoing, the Board finds that the symptoms of the Veteran's PTSD cannot be dissociated from the Veteran's already service-connected major depressive disorder.  With resolution of all reasonable doubt in the Veteran's favor, it is concluded that the evidence supports service connection for PTSD.  38 U.S.C.A. § 5107(b).

The Veteran also describes experiencing claustrophobia.  Notably, PTSD is an anxiety disorder.  38 C.F.R. § 4.130, Diagnostic Code 9411.  Under the DSM-IV, agoraphobia, which is characterized by anxiety in situations where the sufferer perceives the environment as being difficult to escape or get help, is not a codable disorder but rather a subset of panic disorder (except for specific phobia such as social anxiety disorder).  See DSM-IV pp. 199-218.  In other words, the Veteran's claustrophobia is, by definition, a panic attack symptom of his service-connected PTSD.  

The Board, therefore, has found that the Veteran's PTSD with panic attack symptom of claustrophobia is of service-connected origin.  As service connection for claustrophobia, as a manifestation of PTSD, has been established there is no "controversy" or justiciable issue involving a claimed separate mental disorder entity of claustrophobia before the Board.  The claim as phrased by the RO, therefore, must be dismissed.  38 U.S.C.A. § 7105(d).  See Shoen v. Brown, 6 Vet. App. 456, 457 (1994); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 

Nasal Pterygium

The Veteran seeks to establish his entitlement to service connection for right nasal pterygium.  A June 1, 2004 service treatment record clearly reflects the Veteran's treatment for right eye pterygium.  At that time, the Veteran described right eye irritation which was worsened with exposure to sun or dust.  This problem had been present for 6 months (within the time frame for his last period of active service).

Post-service, the Veteran again reported recurrent feeling of right eye irritation.  He has been diagnosed and treated for recurrent right eye pterygium.

In this case, the RO has determined that the Veteran's right eye pterygium pre-existed the period of service from February 2003 to June 2004.  In support of this finding, the RO refers to a March 1996 ARNG Periodic Examination which is asserted shows that the Veteran had been complaining of "right eye blurred vision and irritation."  

However, the March 1996 examination report only reflects the Veteran's report of "blurred vision."  Prior to treatment for right eye pterygium in 2004, there is no medical evidence establishing the existence of right eye pterygium prior to the period of active service from February 2003 to June 2004 or any lay evidence of record prior to this time period which could support such a diagnosis (such as report of right eye irritation).  Furthermore, the Board observes that risk factors for developing pterygium include exposure to sunny, dusty, sandy, or windblown areas - which is the Veteran's exact complaint during service.  See generally http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002006/.  

To the extent that any doubt exists it is resolved in the Veteran's favor.  The Board thus finds that the Veteran's right eye pterygium first manifested during active military service.  The claim, therefore, is granted.

Onychomycosis

The facts of this issue may be briefly summarized.  The Veteran reports the onset of his onychomycosis during his period of active service from February 2003 to June 2004.  Onychomycosis is defined as a fungal infection of the nail plate producing nails that are opaque, white, thickened, friable and brittle.  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 27th Ed. p. 1177 (1985).  Clearly, the Veteran is competent to describe this type of outwardly visible symptomatology.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995).

The Veteran alleged that this condition existed, and began in service, less than one month after his service discharge in June 2004.  A confirmation that this condition existed, and was diagnosable as onychomycosis, occurred on the initial VA examination performed in September 2004.  On review of the record, the Board finds no information of record which impeaches the Veteran's description regarding the onset of his onychomycosis.  The Board thus finds that the Veteran's onychomycosis first manifested during active military service.  38 C.F.R. § 3.303(b).

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159.  With respect to the issues being decided, the Board is granting in full the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.


ORDER

Service connection for PTSD with claustrophobia is granted.

Service connection for recurrent right nasal pterygium is granted.

A claim of entitlement to service connection for claustrophobia is dismissed without prejudice 

Service connection for onychomycosis is granted.

REMAND

Initially, as above, according to a February 2012 rating decision the Veteran was afforded several VA examinations in January 2012, specifically examinations of the spine, intestines, hypertension, psychiatric, and general.  However, a review of both the paper claims file and the Virtual VA file is negative for these examination reports.  On remand, the RO should associate a complete copy of the January 2012 VA examinations with the claims file.  

Also, while the Veteran has over six years of active service beginning in 1976 the earliest service treatment of record is dated in 1994 (presumably during ACDUTRA service) and the majority of the records are dated from 2000 to the present.  Also, the only service treatment records of record are from the Veteran's last period of service and there is no enlistment nor separation examination report from this period of service.  It is unclear what attempts the RO has made to obtain service treatment records from the Veteran's first three periods of service.  On remand, the RO should make an attempt to obtain any missing service treatment records, particularly from the Veteran's first three periods of service as well as an enlistment and separation examination from the Veteran's fourth period of service.    

Furthermore, while it is unclear what the January 2012 VA examination reports show, the Board finds that additional medical opinions are required in this case with regard to the presbyopia, bilateral testicular hydrocele, liver hemangioma, internal hemorrhoids, and left shoulder issues.  

With regard to the presbyopia, the Board has granted service connection for nasal pterygium.  In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  38 C.F.R. § 3.303(c).  

A June 2004 VA ophthalmology consultation reflects an assessment that the Veteran may manifest irregular astigmatism of the right eye as secondary to service connected right eye pterygium.  The Board, therefore, requires medical opinion as to whether the Veteran's right eye presbyopia is a result of superimposed injury of service-connected origin.

With regard to the bilateral testicular hydrocele, onychomycosis, liver hemangioma, and internal hemorrhoids issues the Board notes that the Veteran was afforded a VA general examination in September 2004 which showed a diagnosis of bilateral testicular hydrocele.  Subsequently, he was afforded VA liver and rectum examinations in July 2006 which showed diagnoses of right liver lobe echogenic mass as well as internal hemorrhoids.  Unfortunately, with both examinations, no opinions were provided as to the etiology of the bilateral testicular hydrocele, onychomycosis, liver lobe echogenic mass, and/or internal hemorrhoids.  Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  In Barr, 21 Vet. App. at 311, the Court of Appeals for Veterans Claims found that a medical examination was inadequate because the examiner did not provide an etiological opinion and did not review prior medical records.  As the September 2004 and July 2006 VA examiners failed to provide an etiological opinion with regard to the Veteran's claimed bilateral testicular hydrocele, liver hemangioma, and internal hemorrhoids, another examination is warranted pursuant to Barr.

With regard to the left shoulder issue, the Veteran contends that his left shoulder disorder is the result of the same October 2003 in-service injury that resulted in his service-connected low back disorder.  He was afforded a VA joints examination in July 2006 which resulted in a diagnosis of left shoulder adhesive capsulitis with bursitis and impingement.  The examiner opined that because the left shoulder joint and lumbar spine were in different anatomical areas with different bony structures and nerve supplies, the Veteran's left shoulder disorder was not secondary to his service-connected lumbar spine herniated disc at L5-S1 and myositis.  Unfortunately, the July 2006 VA joints examiner did not opine as to whether the Veteran's left shoulder disorder was directly related to his military service or aggravated by his service-connected low back disorder.  As such, another examination is warranted for the left shoulder pursuant to Barr.

With regard to the hypertension issue, as above, the Veteran was discharged from military service in June 2004.  The available service treatment records for his period of active service from February 2003 and June 2004 reflect blood pressure readings of 150/98 (October 2, 2003), 154/82 (October 6, 2003), 135/96 (October 30, 2003), and 149/89 (June 1, 2004).  These readings are sufficiently high to suggest the possibility of hypertensive disability being present.  See Veterans Benefits Administration (VBA) Training Letter 00-07 (July 17, 2000) citing the Sixth Report of the Joint National Committee on Prevention, Detection, Evaluation, and Treatment of High Blood Pressure (1997) as defining Stage 1 hypertension as 140 mm Hg to 159 mm Hg systolic or 90 mm Hg to 99 mm Hg diastolic).

The October 2, 2003 treatment record recommended monitoring the Veteran's blood pressure over a 5-day period.  It is unclear whether this was conducted, and also unclear whether there are complete service treatment records.  The Veteran was not formally placed on blood pressure medication (Atenolol) until October 6, 2005 when he had a blood pressure reading of 138/81 and was given an assessment of rule out (R/O) hypertension (HTN).  On remand, the Veteran should be afforded a VA examination to determine whether the Veteran's hypertension first manifested during his active service.

The clams file includes several documents that are written in Spanish.  While the Spanish documents in Volume 3 were translated from Spanish to English at the Board in March 2012, there are several additional reports in Volume 2 which have not yet been translated into English.  Specifically, private treatment records dated in October and November 2005 from Dr. G.J.H.P. (Volume 2), an undated statement from the Veteran (Volume 2), and private treatment records dated from June through September 2009 (Volume 2) have not yet been translated.  On remand, the RO should translate all of the reports in Volume 2 tabbed in pink tabs with the word "Spanish" from Spanish into English.

Finally, the Veteran alleges that his claimed disabilities at issue stem from his last period of active service from February 2003 to June 2004.  At this time, the issue of whether his disabilities were incurred and/or aggravated by ACDUTRA or INACDUTRA service has not been raised.

Accordingly, the case is REMANDED for the following action:

1.  Request the Veteran to identify any non-VA relevant treatment records for his claimed IBS, presbyopia, bilateral testicular hydrocele, the lumbar spine, liver hemangioma, internal hemorrhoids, the left shoulder, and hypertension, to include any records of reported laser eye surgery to the right eye.

2.  Associate a complete copy of the January 2012 VA spine, intestines, hypertension, psychiatric, and general examinations with the claims file as well as all relevant VA clinic records since January 2012.

3.  Make an attempt to obtain any missing service treatment records, particularly from the Veteran's first three periods of service as well as an enlistment and separation examination from the Veteran's fourth period of service.  The RO should specifically request any available records from the Army Health Clinic at Fort Buchanan from February 2003 to June 2004.

If additional service treatment records prove to be unobtainable, a negative reply must be noted in writing and associated with the claims file.  

4.  Translate all of the reports in Volume 2 tabbed in pink tabs with the word "Spanish" from Spanish into English and associate a copy of the translated reports with the claims file, specifically private treatment records dated in October and November 2005 from Dr. G.J.H.P. (Volume 2), an undated statement from the Veteran (Volume 2), and private treatment records dated from June through September 2009 (Volume 2).

5.  Upon completion of the above, schedule the Veteran for a VA eye examination.  The claims file must be made available to the examiner for review.  Following the examination and review of the record, the examiner should opine whether it at least as likely as not (i.e., 50 percent or greater probability) that presbyopia of the right eye results from a superimposed injury?  In so doing, the examiner should specifically consider the Veteran's treatment for right eye pterygium on June 1, 2004 and the June 23, 2004 VA ophthalmology consultation which reflects an assessment that the Veteran may manifest irregular astigmatism of the right eye as secondary to service-connected right eye pterygium.

The examiner's attention is also directed to the March 1996 examination report showing right eye blurred vision and March 1996 report of medical history wherein the Veteran reported "eye trouble and the December 2000 examination report showing normal eyes and December 2000 report of medical history wherein the Veteran checked "don't know" when asked whether he had a history of "eye trouble.

If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state.  However, a complete rationale for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 

5.  Schedule the Veteran for VA examination(s) pertaining to the disabilities discussed below.  The claims file must be made available to the examiner(s) for review.  Following the examination and review of the record, the examiner(s) should address the following: 

	a) request the Veteran to specifically identify the onset of symptoms, or claimed etiology, of his bilateral testicular hydrocele, liver hemangioma, left shoulder disability, internal hemorrhoids and hypertension;

	b) whether it is at least as likely as not (50 percent or higher degree of probability) that his bilateral testicular hydrocele either first manifested during the period of active duty from February 2003 to June 2004, or as a result of injury during February 2003 to June 2004, including as a result of traumatic injury during the July 2003 low back injury wherein the Veteran reports the onset of testicular pain;

	c) whether it is at least as likely as not (50 percent or higher degree of probability) that his liver hemangioma either first manifested during the period of active duty from February 2003 to June 2004, or as a result of injury during February 2003 to June 2004, including as a result of traumatic injury during the July 2003;

	d) whether it is at least as likely as not (50 percent or higher degree of probability) that his internal hemorrhoids either first manifested during the period of active duty from February 2003 to June 2004, or as a result of an event during February 2003 to June 2004,

   e) whether it is at least as likely as not (50 percent or higher degree of probability) that his left shoulder disability either first manifested during the period of active duty from February 2003 to June 2004, or as a result of injury during February 2003 to June 2004, including as a result of traumatic injury during the July 2003 low back injury with specific consideration given to the Veteran's report of onset during a January 21, 2005 VA clinic visitation;

   f) whether it is at least as likely as not (50 percent or higher degree of probability) that his left shoulder disability has been aggravated beyond the normal progress of the disorder by his service-connected low back disorder; 

   g) whether it is at least as likely as not (50 percent or higher degree of probability) that his hypertension first manifested during the period of active duty from February 2003 to June 2004, or as a result of an event during that period of service, including consideration of the blood pressure readings of 150/98 (October 2, 2003), 154/82 (October 6, 2003), 135/96 (October 30, 2003), and 149/89 (June 1, 2004) during the last period of active service; and

   h) whether it is at least as likely as not (50 percent or higher degree of probability) that his hypertension has been aggravated beyond the normal progress of the disorder by service-connected low back disorder, to include any medications used to treat service-connected conditions.

The examiner should specifically address the Veteran's reported history of these disorders in service and thereafter, including the relatively short time period from discharge when the first complaints were reported which may help to supplement the absence of service treatment records.  The examiner is free to comment whether there is any medical reason to accept or reject the Veteran's contentions, but the absence of service treatment records alone cannot be used against the Veteran given the circumstances of his service.

The examiner must provide a complete rationale for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 

If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state.  However, a complete rationale for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 

6.  If and only if the Veteran alleges the onset or aggravation of his claimed disabilities during a period of ACDUTRA and INACDUTRA (or the evidence suggests such a possibility), then verify the period of ACDUTRA/INACDUTRA in question.  An addendum opinion should be obtained if a VA examiner does not address this issue.

7.  After completion of the foregoing, readjudicate the claim on the merits.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond.

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.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs