Citation Nr: 1311276 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 08-19 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for migraine headaches. 4. Entitlement to service connection for non-specific urethritis. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to May 1995. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As support for his claims, the Veteran and his wife testified at a hearing at the RO in October 2012 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). The claims require further development before being decided on appeal, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately deciding, these claims, it is necessary to ensure they are fully developed and receive all due consideration. VA has a duty to make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate these claims, unless no reasonable possibility exists that such assistance would aid in substantiating them. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Social Security Administration (SSA) Records The Veteran submitted a letter, dated in February 2007, indicating he had been awarded SSA disability benefits. The file, however, does not reflect that any efforts have been made to obtain these SSA records, and these efforts are required pursuant to 38 C.F.R. § 3.159(c)(2) (2012). See also Baker v. West, 11 Vet. App. 163, 169 (1998) (VA's duty to assist includes obtaining SSA records when the Veteran reports receiving SSA disability benefits, as these records may contain relevant evidence). According to the holding in Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), VA's duty to assist specifically includes requesting information from other Federal departments or agencies, so including SSA, if potentially pertinent to the claims before VA. Golz clarified that VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A are those relating to the injuries for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claims. Efforts to obtain these SSA records must be made until they are either obtained or it is determined they do not exist or that continuing efforts would be futile. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2); See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). VA Compensation Examinations for Medical Nexus Opinions The duty to assist also requires that VA provide medical examinations or obtain medical opinions when necessary to make a decision on claims. 38 C.F.R. § 3.159(c)(4). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability, establishes that a Veteran suffered an event, injury, or disease during his service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the types of evidence that "indicate" a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.) That said, a recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). The Veteran contends he was treated for sinusitis, hypertension and urethritis during his military service and that he has had continuing symptoms and therefore required ongoing treatment for these conditions ever since, also that his migraines began with his sinus problems in service and have continued to occur whenever he has sinus-related issues. During his October 2012 Travel Board hearing, he testified that he was seen several times while in the military for his sinus problems and sinus infections, that he was now taking medication, Flonase 2-3 times each day, and that he was told he would have to take it for the rest of his life because the condition will not resolve, as evidenced by him still having difficulty breathing and blood noses, etc. His wife provided supporting testimony regarding this condition and the effects of it, which she said she had observed personally since meeting him in 1987, while he was in service. He further testified that he first learned he had high blood pressure in 1990, so also while in service, that he was told it would be continually monitored, which it was throughout the remainder of his service, and that hypertension eventually was diagnosed in 2006 or thereabouts. Regarding his urethritis, he testified that he first complained about it and was first treated for it while in service, noting that Amoxicillin and Penicillin were continually prescribed, and that since service it has persisted, though admittedly less severe. He said it tends to "pop up every now and then", but has not been as prevalent as it was in service, although the same medications have continued to be prescribed for treatment of it. His service treatment records (STRs) confirm he was treated for urethral discharge in November 1986, diagnosed as gonococcal urethritis. In January 1988 he was treated for complaints of headaches, cough, sore throat, chills and nausea and was diagnosed with an upper respiratory infection. In November 1989, a urine analysis was negative. A December 1989 STR reflects that he again was treated for urethral discharge, was under treatment for venereal warts, and that an examination revealed normal results. In October 1990, he was treated for complaints of a sore throat, productive cough, sinus congestion, pain mid-sternum with deep breath, headache and nausea, and again was diagnosed with an upper respiratory infection. He was treated for complaints of sinus headache and congestion, nasal drip and mild sinus pain in March 1993 and diagnosed with sinusitis. In April 1994, he complained of sinus congestion and headache and was assessed with spring-time hay fever. A September 1990 periodic examination revealed normal findings of all systems upon clinical evaluation and his blood pressure was recorded as 108/60. In a September 1990 Report of Medical History, he reported having no history of frequent or severe headache, sinusitis, frequent or painful urination, or kidney stone or blood in urine. He also indicated that he did not know whether he had high or low blood pressure or a history of this. His April 1995 separation examination revealed normal findings of the head, sinuses and vascular system but an abnormal finding of the genitourinary system, noted as vasectomy sutures. His blood pressure was 118/70. In the accompanying April 1995 Report of Medical History, he noted having a history of sinusitis and high or low blood pressure but denied a history of frequent or severe headache, frequent or painful urination, or kidney stone or blood in urine. The evaluating medical officer indicated the Veteran had had sinusitis, which had been treated with antibiotics and was not considered disqualifying (NCD). He also noted the Veteran had transient elevated blood pressure during stress, but was not on medication, and this, too, was NCD. His military service ended the following month, so in May 1995. Post-service private medical records starting from nearly a decade later, in March 2005 and continuing to April 2011, and VA outpatient treatment reports from April 2003 to February 2011 reflect that the Veteran has been treated for and diagnosed with urinary tract infection, kidney stone, a history of hypertension, elevated blood pressure reading without diagnosis of hypertension, elevated blood pressure, hypertension, a history of nephrolithiasis, mild renal insufficiency, chronic kidney disease and acute sinusitis. In a November 2006 private treatment report, he reported a history of hypertension for the past 15 to 16 years, so dating back to his service, which he said was under fairly poor control, although within the last year it had been under control with the initiation of heart failure medications. At the conclusion of a November 2006 VA examination he was diagnosed with allergic rhinitis, chronic and symptomatic. Based on the history and then present illness and current physical examination, the examiner determined the Veteran's symptoms more consistent with allergic rhinitis than sinusitis and headaches. He was also diagnosed with urethritis, although it was then currently asymptomatic. While the November 2006 VA examiner diagnosed the Veteran with allergic rhinitis, finding that his symptoms were more consistent with this than sinusitis and headaches, the VA examiner did not comment on the etiology of the allergic rhinitis, especially in terms of whether it is related or attributable to the Veteran's military service or incepted during his service or dates back to his service. The Court has held that the scope of a claim for service connection for a disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability). Clemons concerned VA's failure to consider a claim of entitlement to service connection for a psychiatric disorder other than the one specifically claimed, posttraumatic stress disorder (PTSD), even though it shared the psychiatric symptomatology for which the Veteran was seeking service connection. The Clemons Court found that, where a Veteran's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Here, there is evidence of a diagnosis of sinusitis in service, a suggestion of continuous symptoms ever since, and additional diagnoses of sinusitis since service, including since the filing of this claim for this condition. The Court clarified in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), that the requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim. Moreover, if the diagnosis of a disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. 38 C.F.R. § 4.125(b) (regarding mental disorders). If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination. Id. This section may apply, for example, if a VA examiner diagnoses a new condition that is different from prior diagnoses in the claims file, as seemingly has occurred here with the initial diagnoses of sinusitis versus the most recent diagnosis, instead, of allergic rhinitis. In deciding a claim, the Board must consider all potential bases of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof. This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. Supplemental medical comment therefore is needed to reconcile the change in diagnosis that has occurred in this instance from sinusitis in service to what now, instead, is considered allergic rhinitis. To this end, the VA examiner needs to specify whether the "sinusitis" diagnosed in service was, in actuality, a misdiagnosis, and whether the Veteran's current allergic rhinitis represents a progression of or the same symptoms as he experienced while in service Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also McLendon, 20 Vet. App. at 83; Waters, 601 F.3d at 1276. Also, because there is indication of elevated blood pressure in service, suggestion of continuous symptoms since, and evidence of currently diagnosed hypertension, the Board is additionally requesting a VA examination for a medical opinion on this determinative issue of causation insofar as whether the Veteran's hypertension dates back to his military service. Id. Finally, although a diagnosis of urethritis, albeit then currently asymptomatic, was provided at the conclusion of the November 2006 VA examination, no opinion regarding the cause of this condition and potential relationship with the Veteran's military service was provided. Thus, given the evidence showing a diagnosis of urethritis in service, a suggestion of continuous symptoms ever since, and evidence of additional diagnoses of urethritis, urinary tract infections, renal insufficiency, nephrolithiasis, and chronic kidney disease currently, a VA examination and medical nexus opinion also are needed concerning this claim. Id. Outstanding VA Medical Records As it appears the Veteran continues to receive ongoing treatment for his claimed disabilities, including apparently from VA, these additional records must be obtained and considered. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive, if not actual, possession of the agency since generated and maintained within VA's healthcare system and, therefore, must be obtained if relevant or potentially determinative of the claim). Importantly, the Board observes that the record indicates that VA medical records from the Martinez VA Medical Center (VAMC) from May 2011 to April 2012 were associated with the electronic ("Virtual VA") paperless claims file in May 2012. Upon review of the Virtual VA paperless claims file, however, these records are not found. Therefore, these records must be included with the ongoing VA treatment records obtained. Accordingly, the claims are REMANDED for the following additional development and consideration: 1. Contact the SSA and request copies of all documents pertaining to the Veteran, including all decisions and all medical records relied upon in making the decisions. All records obtained pursuant to this request must be included in the Veteran's claims file. Since these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts to obtain these records as this VA regulation requires. Also appropriately notify the Veteran if unable to obtain these records. 38 C.F.R. § 3.159(e)(1). 2. Also obtain and associate with the claims file all pertinent other medical records the Veteran adequately identifies that have not been previously obtained and considered, including especially those concerning all VA medical evaluation or treatment he has received since 2011. VA medical records from May 2011 to April 2012 apparently already have been requested or obtained from the Martinez VAMC, and they supposedly were associated with the electronic ("Virtual VA") paperless claims file in May 2012. But upon review of the Virtual VA paperless claims file, they are not found. Therefore, these records must be included with the ongoing VA treatment records obtained. If the records identified are not in the possession of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas as mentioned subpart (c)(2) controls if they are. Also appropriately notify the Veteran if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 3. Upon receipt of all additional records, schedule an appropriate VA compensation examination for a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's current hypertension incepted during his military service from November 1985 to May 1995 or within the following year, meaning by May 1996, or is otherwise related or attributable to his service when considering the initial indications of elevated blood pressure during his service. So in making these determinations, it is essential the examiner consider the relevant evidence in the claims file, including as discussed in this remand. The term "as likely as not" means at least 50-percent probability. It does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner must discuss the medical rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If an opinion cannot be expressed without resorting to mere speculation, the examiner must discuss why such is the case. He/she therefore, as an example, must indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of this disability or because of some other reason (e.g., there are several possible etiologies with none more prevalent than another). So, in other words, merely saying he/she cannot comment will not suffice. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Also obtain supplemental medical comment concerning the etiology of the Veteran's claimed sinusitis and associated headaches, including in relation to the allergic rhinitis since diagnosed, instead, during the November 2006 VA compensation examination. So consider whether the symptoms the Veteran had in service and consequent diagnosis of sinusitis was, in actuality, a misdiagnosis, i.e., whether the allergic rhinitis since diagnosed in favor of sinusitis and headaches represents a change in diagnosis versus an altogether different diagnosis. But even if representing a different diagnosis, there still needs to be comment on the etiology of the allergic rhinitis. 5. As well, a medical nexus opinion is needed concerning the etiology of the Veteran's urethritis, particularly in terms of whether it, too, incepted during his service, as evidenced by his complaints and treatment for this condition while in service, or whether it is otherwise related or attributable to his service. Although the prior November 2006 VA compensation examiner confirmed the Veteran has urethritis, even though it apparently was asymptomatic at the time of that earlier evaluation, there was no comment concerning its etiology and potential relationship with the documented urethritis he had during his military service. Hence, medical comment is needed concerning this alleged causation or correlation. For this additional medical comment requested in action paragraphs 4 and 5, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the pertinent medical and other history. So in making these determinations, it is essential the examiner consider the relevant evidence in the claims file, including as discussed in this remand. The term "as likely as not" means at least 50-percent probability. It does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner must discuss the medical rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If an opinion cannot be expressed without resorting to mere speculation, the examiner must discuss why such is the case. He/she therefore, as an example, must indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiologies of these disabilities at issue or because of some other reason (e.g., there are several possible etiologies with none more prevalent than another). So, in other words, merely saying he/she cannot comment will not suffice. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. Ensure the examiners have responded to the questions posed regarding the diagnoses and etiologies of these claimed disabilities. If not, take corrective action. 38 C.F.R. § 4.2 (2012). 7. Then readjudicate these claims in light of this and all other additional evidence. For all claims that continue to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of all remaining claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KEITH W. ALLEN 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).