Citation Nr: 1313111 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-45 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for chronic allergy disability, to include allergic rhinitis. 2. Entitlement to service connection for a sinus disability, to include deviated septum with chronic sinusitis. 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and to include as secondary to a service-connected disability. 4. Whether the reduction of the evaluation for lumbar disk herniation from a 100 percent evaluation to a 20 percent evaluation effective from May 1, 2010 was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1975 to October 1978. These matters come before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in San Diego, California. In August 2010, the Veteran testified before a Decision Review Officer in San Diego, California. A transcript of that hearing is of record. In February 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August 2009, the Veteran filed a claim for entitlement to service connection for PTSD; and that specific issue has been adjudicated by the RO. The Board finds, upon review of the claims file, that the issue of entitlement to service connection for depression or a mood disability as secondary to the Veteran's service-connected back disability has been raised by the record. With consideration of the Court's decision in Clemons v. Shinseki, 23 Vet. App (2009), the Board has rephrased the original issue to include an acquired psychiatric disability to include as secondary to a service-connected disability. The issues of entitlement to service connection for an acquired psychiatric disability, to include PTSD and to include as secondary to a service-connected disability, and entitlement to service connection for chronic allergy disability, to include allergic rhinitis, 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. A septal defect with sinusitis was not noted on the Veteran's entrance into service. 2. The Veteran's service treatment records reflect that he had a complaint of congested sinuses, and a finding of a septal defect. 3. The Veteran had diagnosed sinusitis and deviated septum during the pendency of the claim. 4. The evidence of record does not reflect that the Veteran's septal defect during his claim was not the same septal defect which he had in service. 5. An October 2006 rating decision granted a 100 percent evaluation for lumbosacral strain with lumbar disk herniation effective from May 11, 2006. 6. The procedural requirements for proposing and effectuating a reduction in evaluation for a service-connected disability were followed. 7. In a February 2010 rating decision, the RO decreased the Veteran's evaluation for lumbosacral strain with lumbar disk herniation from 100 percent to 20 percent effective from May 2010. 8. At the time of the reduction in the disability rating from 100 percent to 20 percent, the 100 percent rating had been in effect for less than five years. 9. A 2006 examination report reflects that upon clinical examination of the Veteran's spine, the Veteran had muscle spasm present, no extension, flexion to 30 degrees with pain beginning at 30 degrees, and limited by an additional 20 degrees after repetitive use, evidence of radiating pain on movement, tenderness, and positive straight leg raising test. 10. A 2009 examination report reflects that upon clinical examination of the spine, the Veteran had extension to 18 degrees, flexion to 52 degrees, no pain initially on range of motion, no radiation of pain on movement, no muscle spasm, no spine tenderness, and a negative bilateral straight leg raise test. 11. A 2011 examination report reflects that upon clinical examination of the spine, the Veteran had extension to 10 degrees, flexion to 40 degrees, no range of motion lost to repetitive use, no radiation of pain on movement, no spine tenderness, and a negative bilateral straight leg raise test. CONCLUSIONS OF LAW 1. A septal defect with chronic sinusitis was incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The reduction of the disability rating for the Veteran's service-connected lumbosacral strain with lumbar disk herniation from 100 percent to 20 percent was proper. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.105(e) and (i) and 3.344 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties 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 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Given the favorable decision on the sinus claim, any deficiency with respect to notice and assistance is not prejudicial. Under 38 C.F.R. § 3.105, prior notice of a reduction is required if the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made. In July and August 2009, the RO notified the Veteran of the proposed reduction of his evaluation for lumbosacral strain with lumbar disk herniation. Thus, the RO complied with the applicable regulations. VA has a duty to assist the Veteran in the development of the claims. The claims file includes service treatment records (STRs), VA and private medical records and correspondence, and the statements of the Veteran, and others, in support of his claims. Examinations with regard to the Veteran's spine were obtained in June 2009 and January 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations are adequate as they are predicated on interviews with the Veteran regarding his symptoms, and clinical examinations of the Veteran. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Rating Disabilities Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Rating Reductions In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344 (2012). Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, these considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction. Analysis The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, the Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection The Veteran avers that he has a sinus disability as a result of a septal defect obtained in active service. An essential element of a claim for service connection is evidence of a current disability. April and July 2010 records reflect that the Veteran had a deviated nasal septum. A September 2010 VA clinical record reflects that the Veteran had a diagnosis of nasal obstruction and chronic sinusitis, and that a septoplasty and turbinate reduction were performed. A November 2010 VA record reflects that the Veteran had had a septal correction and polypectomy. Thus, during the pendency of the claim, the Veteran had a septal defect with sinusitis disability. A second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran's Report of Medical History for entrance purposes, dated in September 1975, is negative for any septal deviation or history of sinusitis. The Veteran did note that he had had ear, nose, or throat trouble. The physician's summary and elaboration of all pertinent data reflects that the Veteran had a "sore throat now and then." A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). As neither a septal defect nor sinus disability was noted upon entrance, the Board will presume that the Veteran was sound with regard to his nose structure. June 2006 clinical records reflect that the Veteran had complaints about his sinuses of a duration of 1 1/2 weeks. The assessment was sinusitis. It was noted that the Veteran had been noncompliant with therapy. The Veteran reported that he had Nasonex at home but "it doesn't help". Subsequent records a few days later note that his sinusitis was improving on Septra, which had been prescribed at the Urgent Care. The Veteran testified at the August 2010 DRO hearing that he injured his nose while in a "combat football" game in service. He testified that he was hit in the nose, which became bloody. He contends that he broke his nose and received a deviated septum at that time. The Veteran also testified at the Board hearing that he has a sinus disability due to playing "combat football" in service in 1977. He stated that he did not know that he had broken his nose at that time, but that he started to have trouble breathing. (See Board hearing transcript pages 17 and 18.) He further stated that he had "lived with this clogged nose" from service until surgery [in 2010]. A July 1976 STR reflects that the Veteran had a " [problem with] congested sinuses - perhaps actifed would help." (The Board notes that the Veteran may be incorrect as to when he first had complaints in service, as the July 1976 STR is prior to his alleged 1977 football injury.) An August 1, 1978 STR reflects "C.C. ENT nasal defect". An October 4, 1978 STR reflects "20 [year old white male with] septal defect [with] difficulty breathing - no time for ENT referral - suggest VA eval." The Veteran separated from service in October 1978. In sum, the evidence reflects that the Veteran's sinuses were normal upon entrance, that he had a septal defect and congested sinuses in service, and that he had a septal defect and sinusitis during the pendency of his claim. The evidence of record does not reflect that the Veteran's septal defect during his claim was not the same septal defect that he had in service. Based on the foregoing, and in giving the benefit of the doubt to the Veteran, the Board finds that entitlement to service connection for a septal defect with sinusitis disability is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Rating Reduction An October 2006 RO rating decision granted a 100 percent evaluation for lumbar disk herniation effective from May 11, 2006. In the February 2010 rating action on appeal, the RO reduced the Veteran's 100 percent evaluation to 20 percent effective from May 1, 2010. There are certain procedures that must be followed before the reduction in the evaluation of a service connected disability can be effectuated. Where the reduction in evaluation of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified of the contemplated action and furnished detailed reasons therefore, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). The record shows that the procedural requirements for a rating reduction were followed. In a July 2009 rating decision, the RO proposed to reduce the rating for the low back disability from 100 percent to 20 percent. The Veteran was notified of the proposed reduction by letter in August 2009 and notified that he had 60 days to respond. The rating decision that decreased the evaluation to zero percent was not issued until February 2010, and the Veteran was notified of this action in a letter dated February 26, 2010. The effective date of the reduction was not until May 1, 2010, beyond the last day of the month in which the 60-day period from the date of notice to the beneficiary of the final rating action expired. Therefore, the procedural requirements for a reduction were met. See 38 C.F.R. § 3.105(e). In determining whether the reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). The October 2006 rating decision, which granted a 100 percent evaluation, was based, in part, on a July 2006 QTC examination report. The report reflects that the Veteran reported incapacitating episodes as often as 1 time a month, which last for 17 days. He reported five incapacitating episodes in the last year for a total of 90 days. He stated that bed rest was recommended by Dr. L. and Dr. D. With regard to incapacitating episodes, the Board notes that an August 2006 memorandum from the Veteran's employer was associated with the claims file. It reflects that the Veteran had been working at the facility for 1 1/2 years and had missed 2-3 months due to his back. The accompanying documentation, which noted the days absent from work, noted 36 days of annual leave and 29 days of sick leave taken from January 1, 2005 (for a total of 65 days) through September 30, 2006. A June 19, 2006 private clinical records reflect that the Veteran was seen for a follow up of his back. He stated that he could not due full work duty and planned to get a disability evaluation. The examiner found that the Veteran had an exacerbation of his chronic low back pain. The examiner wrote an "off work note from June 14, 2006 to June 28, 2006, returning to work on June 29, 2006. The July 2006 examiner found that the Veteran had evidence of radiating pain on movement. Muscle spasm was present. There was tenderness on examination. There was also positive straight leg raising test bilaterally. There was no ankylosis of the spine. Flexion was 30 degrees with pain at 30 degrees; The Veteran had 0 degrees of extension. Rotation and lateral flexion were each 20 degrees bilaterally. Range of motion was limited by an additional 20 degrees after repetitive use by pain, fatigue, weakness, lack of endurance, and/or incoordination. There were no signs of IVDS. The RO stated that the Veteran was granted a 100 percent evaluation based on ankylosis (although the Board notes that the QTC examination was against such a finding.) Correspondence from the U.S. Office of Personnel Management, dated in April 2008, shows that a review of records reflects that the Veteran is disabled for his position as a Material Handler due to right lateral disc protrusion L4-S1/Foraminal Stenosis. The February 2010 rating decision which reduced the Veteran's evaluation from 100 percent to 20 percent was based on a June 2009 QTC examination report. The June 2009 QTC examination report reflects that the Veteran reported that he takes morphine tablets (50 mg. twice a day) to relieve the pain. He also reported that he stopped working because his back became worse in a motor vehicle accident. It was noted that he now uses a cane for ambulation, and reported constant pain which was a 6-7 on a scale of 1 to10. He reported that in May 2009, his doctor put him off of any kind of work of his back for 15 days. Upon examination in June 2009, the Veteran's gait was abnormal, with him favoring the right leg, and his posture was stooped. There was no radiation of pain on movement. There was no muscle spasm, no spine tenderness, and negative straight leg raise test. His flexion was to 52 degrees, extension to 18 degrees, lateral bending 22 degrees bilaterally, and rotation to 20 degrees bilaterally. The examiner noted that there was no pain on range of motion of the thorasacolumbar spine initially. After repetitive use, there was fatigue, pain, weakness, and lack of endurance. There was no incoordination. There was no IVDS. There were no sensory deficits, no motor weakness in the lumbosacral area, and reflexes were 2+ bilaterally for the knees and ankles. Even considering an additional limitation of motion due to fatigue, pain, and other factors, the Veteran's condition is still improved since the 2006 examination. Upon neurological examination, motor strength and sensation were normal. The examiner found that in terms of activities of daily living, his DDD affected him moderately. The Board notes that the lack of radiation of pain, lack of muscle spasm on examination, lack of spine tenderness, and negative leg raise test, are all indicative of improved symptoms from the 2006 examination to the 2009 examination. In addition, while the Veteran had no extension in 2006, he had 18 degrees of extension in 2009. He also had an increase in flexion. In a rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The fact that the Veteran had a range of motion of extension, negative leg raise test, no spine tenderness, and a lack of radiation of pain are all indicative of an improvement in his ability to function. As noted above, in determining whether the reduction was proper, post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). Correspondence from Dr. E. L.-S., dated in April 2010, reflects that the Veteran has "chronic back pains and he has been through treatment with Rehab and Physical Therapy." The Veteran testified at the August 2010 DRO hearing that he gets back spasms, which have caused him to fall on at least three occasions. Correspondence from Dr. E. L.-S., dated in August and September 2010, reflects that the Veteran has lower back pains and muscle spasms. Correspondence from a doctor at the Riverside Medical Clinic, dated in August 2010, reflects that the Veteran is disabled and unable to work due to chronic pain and spasms. The doctor stated that the Veteran "has chronic back pain and spasms in his back which sometimes even causes falls." He also noted that the Veteran has chronic pain in the right elbow and the right fingers. The Board notes that the reports do not reflect whether the spasms were merely reported by the Veteran, or if any spasms were actually found upon clinical examination. (Spasms of the back may not always be readily apparent to an examiner; however, they may be found if the examiner observes a flattened curvature of the spine caused by the pulling of the muscles. They may also be found by an examiner feeling the muscles on either side of the spine and noting their hardness.) A January 2011 VA examination report reflects that the Veteran's gait was unsteady due to low back pain. It was noted that for ambulation, he requires a walker. Upon clinical examination, the examiner found no evidence of radiating pain on movement, no muscle spasm, no tenderness, no guarding of movement, and no weakness. There was normal muscle tone. There was no atrophy and no ankylosis. He had flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left rotation to 10 degrees. Repetitive range of motion was possible and there was no additional degree of limitation. The examiner found that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The neurological examination of the spine revealed no sensory deficits from L1- L5. The sacral spine examination revealed no sensory deficits of S1. There was no lumbosacral motor weakness. The lower extremity reflexes were 2+ bilaterally. There were no signs of IVDS or chronic and permanent nerve root involvement. There was x-ray evidence of degenerative arthritis. The examiner stated that the Veteran's daily activities are moderately affected by his condition. The report further reflects that the Veteran stated that his condition, in the past 12 months, had not resulted in any incapacitation. Although the Veteran reported bowel problems, there was no sign of IVDS with chronic and permanent nerve root involvement. The Board finds that the January 2011 examination report supports that the Veteran had a material improvement in his symptoms at the time of the rating reduction. As in 2009, the 2011 report also reflects that there was no evidence of radiating pain on movement, no muscle spasm, no tenderness, no guarding of movement, no weakness, and normal muscle tone. There was no atrophy and no ankylosis. The Board acknowledges that the Veteran's total range of motion was less in 2011 than in 2006; however, with regard specifically to both flexion and extension, his range of motion in 2011 was still greater than in 2006. In a VA Form 9, received by VA in November 2010, the Veteran asserted that he has been taking medication for pain management. He also stated that his back "goes out three to four times a year." He noted that on two occasions he asked for an ambulance when his back went out. He reported that he has fallen at least 5 times due to back spasms. Even if the Veteran had muscle spasm, such is considered in the 20 percent rating. In addition, no tenderness or guarding has been noted on the 2009 or 2011 examinations. The claims file also includes the written statement of individuals who stated that they have seen the Veteran in extreme pain and waiting for an ambulance. The Board sympathizes with pain that the Veteran may have; however, some acute flare-ups of his back disability do not negate the fact that his back disability was shown, upon clinical examination, to have improved and that a 100 percent is not warranted. The Board also notes that the Veteran's assigned 20 percent evaluation is supported by the evidence of record. The General Rating Formula for Diseases and Injuries of the Spine, provides that a 20 percent evaluation is for assignment where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. The Veteran would be entitled to a 40 percent evaluation if the evidence reflected that he had forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence is against such a finding. The Veteran would be entitled to a 50 percent rating if the evidence of record reflected that he had unfavorable ankylosis of the entire thoracolumbar spine; the evidence is against such a finding. The Veteran would be entitled to a 100 percent rating, if the evidence reelected unfavorable ankylosis of the entire spine; the evidence is against such a finding. In sum, the record reflects that the Veteran's back disability improved after the 2006 rating. The Board has considered the entire history of the Veteran's disability and finds that the evidence reflects an actual material improvement in the Veteran's disability. Notably, he no longer had a positive straight leg test, radiating pain, or tenderness on examination. In addition, his flexion had improved and his extension had improved. The Board finds that the examination reports that reflected a change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to service connection for a residuals of a septal defect with sinusitis disability is granted. The reduction of the evaluation for lumbar disk herniation from a 100 percent evaluation to a 20 percent evaluation effective from May 1, 2010 was proper, and the appeal is denied. REMAND Chronic Allergy Disability The Veteran's post-service records reflect that the Veteran has allergies to trees, grass, weeds, dust, mites, cats, dogs, and other substances. (See May 1993 records.) The Veteran testified that he had allergies in service but that he was diagnosed with strep throat instead of allergies at that time, and that he was given over the counter medication. He stated that he used to get strep throat twice a month. (See DRO hearing transcript page 22.) The STRs reflect that the Veteran had diagnoses of upper respiratory infection and strep throat based on clinical examination and laboratory testing. They are negative for a diagnosis of allergies. (See October 1975, March 1976, June 1977, and July 1977 STRs) A July 1976 STR reflects that the Veteran had problems with "congested sinuses." It was noted that "perhaps actifed would help." The record is negative for findings of coughing, drainage, sneezing, itchy eyes, itchy throat, or watery eyes (manifestations of his allergies noted in July 2010 and November 2010). The record is negative for any mention of allergies. An August 1977 STR reflects that the Veteran reported respiratory problems. It was noted that he appears to "have a slightly deformed chest structure." Additional records also reflect that the Veteran had a deformed chest structure. In the approximate 36 months for which the Veteran was in service, he sought treatment on approximately 36 occasions for a variety of complaints to include right leg tightness (October 1975), an upper respiratory infection (October 16, 1975), inflamed tonsils (October 30, 1975), pain in the toe (November 1975), sore throat and cold (March 1976), sore left patella and congested sinuses (July 1976), insect bite (July 1976), swollen ankle (October 1976), chest rash (December 1976), injured toe (December 1976), infected thumb (December 1976), back strain and injured left foot (March 25, 1977), back pain (March 29, 1977), back pain (March 31, 1977), painful left hand (April 1977), knee pain (April 1977), an animal bite (April 1977), sore throat with sores and lesions on the lips (June 1977), strep throat, heat rash, impetigo (June 6 and 7, 1977), strep throat (July 1977), difficulties breathing for one month with deformed chest structure and vague chest discomfort (August 1977), pain in the legs (September 6 and 9, 1977), pain in the elbows (October 1977), pain the legs (November 28 and 29, 1977), pain in the right leg (December 1977), pain in the forearm (February 1978), "popping" in the right ankle (February 1978), cuts on the little toes while swimming (April 1978), injured left foot (May 1978), pain in the left testicle, and ringing in ears subsequent to M-60 blank round firing (June 1978), chest pain (August 1and 7, 1978), and pain in the left knee (September 1978). None of the STRs reflects that the Veteran complained of a running nose, itchy nose, watery eyes, sneezing, or a scratchy throat; however, a June 25, 1976 health questionnaire reflects that the Veteran reported that he had, or had previously had, an allergy and hay fever. No such disability was noted upon entrance into service. The Veteran separated from service in October 1978. A February 1985 VA examination report appears to reflect that the Veteran had polyps with infection. The Veteran's occupations since service were noted to be student, maintenance/handyman, custodian, and counselor. A February 1985 VA Form 10-1162 reflects that the Veteran "has allergies." It was noted that he had been going to "VA Wadsworth for allergy clinic last seen 8-10 [months] ago." Correspondence dated in October 2010 from the Greater Los Angeles Health Care System reflects that it has been unable to locate any records for the Veteran from 1978 to 1990. May 1993 VA clinical records reflect that the Veteran had a history of multiple allergies. It was noted that he had had allergy shots for about 12-16 weeks approximately four year earlier. Private medical records in 1987 and 1988 reflect that the Veteran was receiving allergy shots. Based on the foregoing, the Board finds that a VA examination is warranted to determine if it is as likely as not that the Veteran has a chronic allergy disability which was caused by, or aggravated by, service. McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). Acquired psychiatric disability The Veteran claims that he has PTSD due to service. He alleges two stressors. First, he alleges that he witnessed someone get killed. He testified at the Board hearing that he does not know the name of the individual who was killed. He alleges that the incident occurred while stationed in Hawaii in 1977 or 1978. He testified that he witnessed two individuals fighting, and one stabbed the other in the leg and back. A January 2010 VA memorandum is of record. It reflects a formal finding that the Veteran did not provide sufficient information for a search of his alleged stressful event. The record reflects that the Veteran was stationed in Hawaii from February 1976 to approximately September 1978. The Veteran testified that he could not be more specific as to the month or day of the alleged incident, other than 1977 or 1978. He also could not provide the name of the alleged assailant or victim. Further attempts to verify that stressor are not necessary. Second, the Veteran testified at the Board hearing that while in basic training between October 1975 and December 1975, he witnessed an individual "slice" open another soldier's stomach with a trenching tool. He stated that one individual hit his head down on the ground, which caused his jaw to be ripped open. He testified that one of the individuals was given a dishonorable discharge and the other was transferred to another duty station. (See Board hearing transcript pages 12 to 15.) He testified that the individuals were named Bailey (the attacker) and Watt (the victim). As the Veteran did not mention this alleged stressor until the February 2013 Board hearing, no RO attempts were made to verify this alleged stressor. The Board finds, based on the information which the Veteran provided, that VA should attempt to verify the alleged incident of a soldier named Bailey committing an assault between October 11, 1975 and December 11, 1975 while in Fort Gordon, Georgia. The Board has limited the scope of the assault from the date of enlistment to the date the Veteran completed basic training as noted in his personnel records. The Veteran avers that he has a diagnosis of PTSD, and there is a clinical record of evidence which has a notation that the Veteran has PTSD; however, there is no clinical record which reflects that the Veteran has actually been diagnosed with PTSD in accordance with DSM-IV and based on an actual stressor. The mere recitation of a history of PTSD without an examination report or clinical records, either VA or private, reflecting the basis for such a diagnosis, is insufficient for the Board do find that there has been a proper diagnosis. In addition, the clinical records reflect that the Veteran a mood disorder/ depression secondary to chronic pain. (See January and November 2006 VA records.) The Board notes that numerous records reflect that the Veteran has reported chronic pain due to his service-connected back disability. In Clemons v. Shinseki, 23 Vet. App (2009), the Court held that an appellant's diagnoses which arise from the same symptoms for which he is seeking benefits, do not relate to entirely separate claims not yet filed by the appellant. Rather, these diagnoses should be considered to determine the nature of the appellant's current condition relative to the claim he did submit. Based on the foregoing, the Board finds that the Veteran should be scheduled for a psychiatric examination to determine what, if any, acquired psychiatric disability he has, and whether it is as likely as not that the etiology of any such disability is causally related to service, or aggravated by a service-connected disability. The record reflects that the Veteran has applied for SSA benefits. SSA records may be useful to the Board in adjudicating the Veteran's claim and VA should attempt to obtain them. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Finally, the Veteran should be provided with the appropriate notice with regard to entitlement to service connection for a disability as secondary to a service-connected disability. Accordingly, the case is REMANDED for the following action: 1. Issue appropriate notice for the issue of entitlement to an acquired psychiatric disability as secondary to a service-connected disability. 2. Contact the Social Security Administration (SSA) and obtain a copy of all agency records and any decision which awarded or denied the Veteran SSA disability benefits, including all medical records used to make the decision. 3. Contact the appropriate agency(ies) and attempt to confirm the alleged stressor of an assault by a servicemember named Bailey on another servicemember named Watt between October 11, 1975 and December 11, 1975 at Fort Gordon, Georgia, by attempting to obtain military police report and/or criminal investigation division records. If the search for records yields negative results, this fact should be noted in the claims folder. All documents received by VA should be associated with the claims folder. 4. Thereafter the Veteran should be scheduled for a psychiatric examination. The claims file must be made available to the examiner for review. Prior to the examination, the AMC/RO must specify for the examiner any in-service stressor established by the record. If PTSD is diagnosed, the examiner should specify (1) whether the alleged in-service stressor established by the evidence of record was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and the in-service stressor sufficient to produce PTSD. If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not (a 50 percent or greater probability) that any current psychiatric disorder, other than PTSD, is related to active service or caused or aggravated by a service-connected disability, to include pain related to the service-connected back disability. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Schedule the Veteran for a VA examination with the appropriate clinician for his allergies. The examiner is requested to furnish an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran has a chronic allergy disability causally related to his military service. The examiner should consider the entire claims file, to include: a) the Veteran's report of medical history for enlistment purposes which reflects that he denied an allergy history, b) the Veteran's numerous STRs which are negative for findings of running nose, itchy nose, sneezing, watery eyes, or itchy throat, but note that he reported in June 1976 that he had hay fever and allergies and noted congested sinuses in July 1976 and a septal defect, c) that the Veteran served the majority of his active service in Hawaii, d) the post service evidence which reflects the Veteran had allergies to trees, grass, weeds, dust, mites, cats, dogs, and other substances, e) the February 1985 VA examination report which references polyps, and f) that the Veteran was treated for allergies in 1985, and received allergies shot in 1987 and 1988. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claims, to include denial. See 38 C.F.R. § 3.655 (2012). 7. Thereafter, after completing any further development deemed necessary, readjudicate the issues of entitlement to service connection for an acquired psychiatric disability to include as secondary to a service-connected disability, and entitlement to service connection for a chronic allergy disability, considering all evidence received since the most recent supplemental statement of the case. If a benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs