Citation Nr: 1306130 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-23 224A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for a right shoulder disorder, also claimed due to undiagnosed illness. 2. Entitlement to service connection for a sinus disorder, also claimed due to undiagnosed illness. 3. Entitlement to an initial compensable rating for degenerative disc disease (DDD) of the cervical spine. 4. Entitlement to an initial rating greater than 10 percent for DDD of the lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from July 1997 to September 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. The Veteran had a hearing before the Board in July 2012 and the transcript is of record. The Board notes the Veteran also presented testimony at his July 2012 hearing on a claim not properly before the Board. Namely, he presented testimony with regard to a claim seeking entitlement to service connection for a left shoulder disorder. The April 2008 rating decision denied, among other things, claims seeking entitlement to service connection for a left shoulder disorder and a right shoulder disorder. The Veteran, on his May 2008 Notice of Disagreement ("NOD"), however, specifically limited his shoulder appeal to the right shoulder. The RO issued a Statement of the Case ("SOC") in June 2009, which adjudicated his right shoulder claim only. On his July 2009 Substantive Appeal form, the Veteran once again limited his appeal to include the right shoulder, but not his left shoulder. A claimant "shall" file the NOD within one year from the date on which the agency of original jurisdiction (AOJ) mails notice of the unfavorable decision. 38 U.S.C.A. § 7105(b)(1) (West 2002). If a claimant does not file an NOD within the one-year period, as is the case here, the AOJ decision "shall become final." Id.; see also Percy v. Shinseki, 23 Vet. App. 37 (2009). In Percy, although the claimant was permitted to present testimony before the Board on a particular claim, the Board dismissed the claim after later determining the Substantive Appeal was untimely. The United States Court of Appeals for Veterans Claims (Court) held that the Board had given the claimant the impression the issue was on appeal and, therefore, waived any objection the VA may have had to the timeliness of the claimant's Substantive Appeal. Percy, 23 Vet. App. 37. The Board considered Percy, but found the facts of the left shoulder claim here distinguishable. The issue here is not whether the Veteran filed a timely Substantive Appeal. Rather, the Veteran never initiated an appeal (via an NOD) regarding the left shoulder denial at all. Indeed, the Court in Percy specifically distinguished the issues of a timely NOD versus a timely Substantive Appeal. While it was held that a timely Substantive Appeal was not a jurisdictional requirement for the Board's consideration of the Veteran's claim, the same did not hold true with regard to a timely NOD. Id. The Court specifically noted the use of the word "shall" within the statutory definition of a timely NOD versus the word "may" in the statutory provision governing the timeliness of a substantive appeal. Id. The Court found the use of the word "shall" meant an untimely NOD necessarily causes an AOJ decision to become final. Id. (quoting 38 U.S.C.A. § 7105(b)(1)). The use of the word "may," on the other hand, indicates the issue of timeliness with regard to the Substantive Appeal is within the discretion of the VA. Id. (quoting 38 U.S.C.A. § 7105(d)(3)). For these reasons, the Board is unable to assueme jurisdiction of the left shoulder claim despite the Veteran presenting testimony on the issue at his July 2012 Board hearing. The issue of entitlement to service connection for a left shoulder disorder has, however, been raised by the record. The Veteran also raised the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). Neither of these issues are properly before the Board here, and therefore, the issues are referred to the AOJ for appropriate action. 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 on his part. REMAND During his hearing, the Veteran testified, since separation from service in 2006, he has received treatment at VA Medical Centers in Biloxi, Mississippi, Pensacola, Florida, and Anchorage, Alaska. The claims folder currently contains treatment records from 2006 to 2008 from Pensacola, Florida and Anchorage, Alaska. The VA must make efforts to obtain treatment records from Biloxi, Mississippi from September 2006 to the present, as well as from Pensacola, Florida and Anchorage, Alaska from May 2008 to the present to the extent they exist. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession). Right Shoulder and Sinus Disorder (Service Connection) The Veteran claims he has a chronic right shoulder disorder and chronic sinus problems as a result of his military service. He presents various theories of entitlement to service connection. He believes his right shoulder and sinus disorders are directly related to his military duties, to include laborious deck duty aboard ships, which required the use of his arms a lot as well as exposing him to exhaust and fumes. He notes straining his right shoulder specifically after working out at the onboard gym during his military service. With regard to his sinus disorder, he further claims he was exposed to asbestos on board the various ships, to include the USS Eisenhower. Thereafter, he had chronic colds, runny nose, and cough. He also notes working in a building in Pensacola, Florida with black mold following the 2006 hurricane. He indicates the building later became condemned, but his sinus problems worsened due to this exposure. Alternatively, the Veteran links his right shoulder and sinus problems to his Gulf War service. He indicates he was exposed to various toxins overseas, to include burnt oil and exhaust. The Veteran's service treatment records confirm regular complaints and treatment for both right shoulder pain and sinus problems throughout his lengthy military career. He was never diagnosed with a chronic condition. Rather, his complaints were attributed to muscle strain (in the case of his right shoulder) or upper respiratory infections and/or virus (in the case of his sinuses). His personnel records confirm his service onboard the USS Monoganela, USS Eisenhower, and USS Lake Champlan, to include service in Southwest Asia. A June 2006 post-deployment health questionnaire indicates the Veteran reported runny nose, chronic cough, and achy shoulders upon returning. He further reported exposure to oil, smoke, paint, primer, and radar. A presumption exists for Persian Gulf War veterans where the Veteran exhibits objective indications of a qualifying chronic disability manifested to a degree of 10 percent or more and cannot otherwise be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a). The signs or symptoms covered under this presumption include joint pain and those involving the respiratory system. See 38 C.F.R. § 3.317 (b) (emphasis added). The RO never considered the applicability of this presumption. After service, the Veteran has been treated for right shoulder pain and sinus problems, but does not currently have chronic diagnoses for either condition. The Veteran was afforded a VA examination in January 2008 where the examiner found the Veteran's right shoulder on examination and on x-rays to be within normal limits. Similarly, the Veteran was diagnosed with "episodic rhinitis, in quiescent state" but no evidence of sinusitis or any other chronic condition was found. However, the evidence is ambiguous as to whether the Veteran's right shoulder and sinus complaints throughout the years can be attributed to an undiagnosed illness incurred during his service in the Southwest Asia or, in the alternative, attributed to a known diagnosis directly related to his military service. In light of the missing treatment records, in-service treatment, and the circumstances of his service, the Board concludes new VA examinations are necessary to resolve the ambiguities in the claims file. Lumbar Spine and Cervical Spine (Increased Ratings) The Veteran claims his lumbar and cervical spine disabilities are worse than currently rated. With regard to increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was last afforded a VA examination in January 2008, over five years ago. At that time the examiner noted some limited motion of the lumbar spine, but without radiating pain. The examiner noted the Veteran's complaints of neck pain, but found no appreciable loss of motion of examination. At his hearing, the Veteran testified his low back and neck manifestations include "shooting pains," decreased range of motion, constant pain, and functional limitations, especially on overuse. In light of the possible missing records, the Veteran's testimony of worsened conditions, and the lengthy time lapse since he was last afforded a VA examination, new VA examinations are indicated. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and provide release forms for any private or VA treatment relevant to the issues on appeal since 2006. Thereafter, the records should be obtained specifically asking that treatment reports, versus summaries, be provided. Regardless of his response, obtain the Veteran's medical records from the VAMC in Biloxi, Mississippi from September 2006 to the present; the VAMC in Pensacola, Florida from May 2008 to the present; and the VAMC in Anchorage, Alaska from May 2008 to the present. All efforts to obtain these records should be fully documented, and the VA facilities must provide a negative response if records are not available. 2. After completing 1 above and records are obtained to the extent available, schedule the Veteran for appropriate VA examinations for his claimed right shoulder disorder and sinus disorder to determine the extent and likely etiology of any condition(s) found. The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiners are specifically informed of the Veteran's ongoing complaints of right shoulder pain and sinus problems since service; and his confirmed service in Southwest Asia during the Persian Gulf War. Based on the examination and review of the records, the examiners specifically should answer the following questions: (a) Does the Veteran have any diagnosable right shoulder disorder or sinus disorder? If so, identify all diagnoses. (b) If the answer to (a) is "yes," are any of the diagnosed conditions at least as likely as not (50 percent probability) directly related to the Veteran's military service, claimed in-service laborious deck duties, in-service complaints and treatment, exposure to environmental toxins, black mold, oil, smoke, exhaust, asbestos, paint, or any other incident of his military service? (c) If the answer to (a) is "no" and no diagnosable condition is found is it at least as likely as not (50 percent probability) that the Veteran's chronic right shoulder complaints and/or chronic sinus complaints are manifestations of an undiagnosed illness related to the Veteran's service in the Persian Gulf? The examiner is to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completing 1 above and records are obtained to the extent available, schedule the Veteran for an appropriate VA examination to obtain orthopedic and neurological findings as to the severity of the Veteran's current lumbar spine and cervical spine disabilities. The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Based on the examination and review of the record, the examiners are to address the following: (a) As for neurological findings, the examiner must provide an opinion as to whether there is objective evidence of neurological impairment stemming from the lumbar spine and/or cervical spine, to include radicular and bladder/bowel impairment. If so, the examiner is to specifically state the affected nerve(s) and impairment level (e.g., mild, moderate, moderately severe, severe). The examiner is to specifically address whether the Veteran has intervertebral disc syndrome and, if so, must discuss the number of incapacitating episodes (i.e., physician-prescribed bed rest) the Veteran has experienced during each 12 month period since 2006 due to this spine disability. (b) As to orthopedic findings, the examiner must state the current manifestations of the Veteran's lumbar spine DDD and cervical spine DDD, to include limitation of motion, ankylosis (favorable or unfavorable), and functional loss. The examiner is to discuss whether the Veteran's back or neck disabilities exhibit weakened movement, excess fatigability, or incoordination that is attributable to the applicable service-connected disabilities. If feasible, this determination must be expressed in terms of the degree of additional range of motion lost. The examiner must express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his back or neck repeatedly over a period of time. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Then, readjudicate the claims on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case must then be returned to the Board for further appellate review, if otherwise in order. 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). This claim 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 2002). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).