Citation Nr: 1314652 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 11-22 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral ankle disorder, to include Achilles tendonitis. 2. Entitlement to service connection for a headache disorder, to include migraine headaches and tension headaches. 3. Entitlement to an initial evaluation in excess of 10 percent for chronic sinusitis. 4. Entitlement to an initial evaluation in excess of 10 percent for hemorrhoids. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to May 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, dated in May 2009 and December 2010. The Veteran testified before the undersigned at a video-teleconference hearing in November 2012. A transcript of the hearing has been associated with the claims file. As an initial matter, the Board notes that with regard to the Veteran's hemorrhoid disability claim, in a July 2011 rating decision, the RO increased the schedular disability rating assigned for hemorrhoids from noncompensable to 10 percent, effective May 28, 2010 (the effective date for the initial award of service connection). Notably, however, because a rating higher than 10 percent is available for hemorrhoids, and because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claim for a higher rating remains in appellate status, as reflected on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board also notes that, at her November 2012 Board hearing, the Veteran reported that, due at least in part to her service-connected sinusitis and hemorrhoids, she has been unable to maintain a job since approximately March 2011. See Board Hearing Tr. at 14, 16-17. In this regard, the Board acknowledges that entitlement to a TDIU was denied by rating decisions dated in May 2009 and August 2012, and that the Veteran did not separately file a notice of disagreement (NOD) following these rating decisions. Significantly, however, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) determined that there is no freestanding claim for TDIU. Id. at 451. Rather, a claim for TDIU is considered part and parcel of the claim for benefits for the underlying disability. Id. at 453-54. Therefore, in considering the increased rating issues on appeal, the Board finds that the issue of entitlement to a TDIU is also currently before the Board, and as such, the issues on appeal are as set forth on the title page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of (1) entitlement to service connection for a headache disorder, to include migraine headaches and tension headaches; (2) entitlement to an initial evaluation in excess of 10 percent for chronic sinusitis; (3) entitlement to an initial evaluation in excess of 10 percent for hemorrhoids; and (4) entitlement to TDIU, 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. FINDING OF FACT At the November 2012 Board hearing, which was prior to the promulgation of a decision in the appeal, the Veteran expressed her request to withdraw her appeal as to the issue of entitlement to service connection for a bilateral ankle disorder, to include Achilles tendonitis. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met as to the issue of entitlement to service connection for a bilateral ankle disorder, to include Achilles tendonitis. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Dismissal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the Veteran or by her authorized representative. 38 C.F.R. § 20.204 (2012). Additionally, an appeal may be withdrawn on the record at a hearing or in writing. 38 C.F.R. § 20.204(b)(1) (2012). In the present case, at her November 2012 Board hearing, prior to the promulgation of a decision in this case, the Veteran expressly requested that her claim of entitlement to service connection for a bilateral ankle disorder, to include Achilles tendonitis, be withdrawn. See Board Hearing Tr. at 2. This statement, which was made on the record, acts as a withdrawal of the Veteran's claim for entitlement to service connection for a bilateral ankle disorder, to include Achilles tendonitis. Hence, with regard to this issue, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. ORDER The appeal is dismissed as to the issue of entitlement to service connection for a bilateral ankle disorder, to include Achilles tendonitis. REMAND The Veteran seeks entitlement to service connection for a headache disorder, to include migraine headaches and tension headaches; entitlement to an increased rating for her service-connected chronic sinusitis, currently evaluated as ten percent disabling under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6512; entitlement to an increased rating for her service-connected chronic hemorrhoids, currently evaluated as ten percent disabling under 38 C.F.R. § 4.114, DC 7336; and entitlement to TDIU. Before the Board can adjudicate these claims, however, additional development is required. The Board will discuss each of its reasons for remand in turn. Notably, because the issue of entitlement to a TDIU is inextricably intertwined with the issue of whether the Veteran is entitled to service connection for a headache disorder, to include migraine headaches and tension headaches; an increased rating for chronic sinusitis, currently evaluated as 10 percent disabling; and an increased rating for hemorrhoids, currently evaluated as 10 percent disabling, the issue of entitlement to a TDIU is deferred pending the adjudication of the Veteran's headache disorder, chronic sinusitis, and hemorrhoid disability claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). I. VA Treatment Records A review of the Veteran's claims file indicates that records from the VA Medical Center (VAMC) in Atlanta, Georgia, remain outstanding. Specifically, at her November 2012 Board hearing, the Veteran reported that she was scheduled to have a consultation with her primary care physician at the Atlanta VAMC on December 21, 2012, to assess whether surgery was required to treat her hemorrhoid disability. See Board Hearing Tr. at 7-8, 10. Significantly, however, the most recent treatment records on file from the Atlanta VAMC, which were submitted by the Veteran's representative, are dated on December 10, 2012. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, on remand, attempts should be made to obtain a complete copy of the Veteran's treatment records from the Atlanta VAMC dated from December 2012, forward. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). II. Other Missing Records A review of the record also reflects that the Veteran may have applied for state and/or Social Security Administration (SSA) disability benefits. Specifically, the claims file includes a March 2002 letter from the Veteran directed to the State of California Employment Development Department in which she explained that she had applied for disability benefits with the state of Georgia, but had then moved to California, where she intended to again apply for benefits. In her March 2002 letter, the Veteran also reported that although she had intended to apply only for state disability benefits, she was actually applying for "permanent disability from the federal government." The Board finds that the Veteran's March 2002 letter indicates that she may have applied for disability benefits from state agencies in Georgia and California. To the extent her March 2002 letter is unclear, the AOJ should first send her a letter requesting that she clarify in which state(s), if any, she submitted a claim for disability benefits. To the extent that she identifies claims for disabilities with a state agency (i.e., not SSA), she should also be asked to submit authorization so that VA may undertake all reasonable efforts to obtain those records. See 38 C.F.R. § 3.159(c) (2012). The Board also finds that the Veteran's March 2002 letter raises a reasonable inference that the Veteran applied for SSA disability benefits. To date, however, a complete copy of the Veteran's SSA records has not been associated with the claims file. In this regard, the Board notes that the possibility that records submitted in support of the Veteran's SSA claim contain evidence relevant to the Veteran's VA claim cannot be foreclosed absent a review of those records. As such, on remand, attempts should be made to obtain a complete copy of the Veteran's SSA records. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); see also Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (finding that as long as a reasonable possibility exists that SSA records may be relevant to a Veteran's claim, VA must assist him or her in obtaining the records); Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (holding that VA's duty to assist includes obtaining records from SSA and giving them appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). Finally, the claims file shows that the Veteran has had an extensive treatment history at several different medical facilities. The AOJ should, therefore, review any newly received records to attempt to determine if those new records identify any non-VA treatment providers who may have additional relevant records not currently associated with the claims file. If so, all reasonable efforts should be made to attempt to obtain those missing records. See 38 C.F.R. § 3.159(c) (2012). III. VA Examinations The Board also finds that additional VA examinations assessing the nature and etiology of the Veteran's headaches, as well as the current nature, extent, and severity of the Veteran's service-connected chronic sinusitis and hemorrhoid disability, are necessary in this case. A. Headaches The Veteran essentially contends that service connection for headaches is warranted because she first began experiencing recurrent migraine/tension headaches during service and has continued to experience such headaches on an intermittent basis since. See, e.g., Board Hearing Tr. at 3; December 2008 VA examination report. In this regard, the Veteran has reported that her migraine/tension headaches are different and distinct from the headaches caused by her service-connected sinusitis. Specifically, she has reported that, unlike her sinus headaches, which begin near her nasal passage and spread over her sinuses, her migraine/tension headaches typically begin at the back of her head and spread forward. See December 2008 VA examination report; Board Hearing Tr. at 6. Moreover, she has indicated that, unlike her sinus headaches, her migraine/tension headaches are generally accompanied by difficulty seeing, disorientation, and dizziness. See December 2008 VA examination report; Board Hearing Tr. at 6. The Board finds that a VA examination assessing whether the Veteran has a headache disorder that was caused by or incurred during her military service is warranted in this case. In making this determination, the Board acknowledges that the Veteran was afforded a VA examination in December 2008, and that at that time, the examiner diagnosed her with migraine headaches. See December 2008 VA examination report. Significantly, however, the examiner failed to provide an opinion as to the etiology of the Veteran's headaches. As such, the Board finds the December 2008 examination report to be inadequate for rating purposes. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also 38 C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Accordingly, given the complicated nature of the Veteran's disability picture, and because the record contains insufficient medical evidence to determine the etiology of her currently diagnosed headache condition, the Board finds that on remand, another VA examination is necessary to resolve any inconsistencies in the record and to fully assess whether the Veteran's headache condition is etiologically related to her military service. See Barr, 21 Vet. App. at 311; see also 38 C.F.R. § 4.2 (2012). B. Chronic Sinusitis In determining that another VA examination assessing the current nature, extent, and severity of the Veteran's service-connected chronic sinusitis is warranted, the Board acknowledges that the Veteran was afforded VA examinations assessing her sinusitis in December 2008 and April 2012. Significantly, however, at her November 2012 Board hearing, the Veteran reported that her chronic sinusitis symptomatology has worsened since her most recent VA examination insofar as she is now experiencing persistent drainage and scratchiness in the back of her throat, a persistent nasal drip, a recurrent cough, daily crusting of her nasal passages, persistent ear congestion, and weekly sinus headaches. See Board Hearing Tr. at 11-12, 17. She also reported that she is now experiencing at least six non-incapacitating episodes of sinusitis a year. See Board Hearing Tr. at 12. In this regard, the Board notes that the most recent examination report of record does not contemplate the Veteran's recent contentions regarding the nature and severity of her symptomatology, or her additional treatment to date. Accordingly, the Board must remand this claim to afford the Veteran an opportunity to undergo a contemporaneous VA examination assessing the current nature, extent, and severity of her service-connected chronic sinusitis. See 38 C.F.R. §§ 3.326, 3.327 (2012) (stating that reexaminations will be requested whenever VA determines that there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). C. Hemorrhoid Disability Similarly, with regard to her hemorrhoid disability, the Board acknowledges that the Veteran was afforded VA examinations assessing the nature, extent, and severity of this condition in December 2010 and April 2012. Significantly, however, at her November 2012 Board hearing, the Veteran reported that her hemorrhoid symptomatology has worsened since her most recent VA examination insofar as she is now experiencing persistent anal bleeding and has developed anemia as a result of such blood loss. See Board Hearing Tr. at 8-10. In this regard, the Board notes that the most recent examination report of record does not contemplate the Veteran's recent contentions regarding the nature and severity of her symptomatology, or her additional treatment to date. Accordingly, the Board must remand this claim to afford the Veteran an opportunity to undergo a contemporaneous VA examination assessing the current nature, extent, and severity of her service-connected hemorrhoids. See 38 C.F.R. §§ 3.326, 3.327 (2012) (stating that reexaminations will be requested whenever VA determines that there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer, 10 Vet. App. at 403; VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all records related to the Veteran's treatment for her headache disorder, chronic sinusitis, and hemorrhoids from the Atlanta, Georgia VAMC, dated from December 10, 2012, to present. If such records are unavailable, the claims file should be clearly documented to that effect. 2. Also send the Veteran a letter requesting that she provide information regarding any previously filed claim(s) for state disability benefits, to include the approximate date(s) of her application(s) for such benefits and the state in which she applied, including any applications she submitted in Georgia and/or California. Following the receipt of any necessary authorizations from the Veteran, attempt to obtain all pertinent medical records relating to any identified claims for state disability benefits. All reasonable attempts to obtain such records should be made and documented. This effort must include an initial request for records and, if the records are not received, at least one follow-up request. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records herself, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Additionally, make arrangements to obtain copies of all documents and/or evidentiary material pertaining to the Veteran's application(s) for SSA disability benefits. As many requests as are necessary must be made to obtain such records, and all such attempts to obtain the records should be documented. 4. After the development requested in items (1) through (3) are completed, review the obtained records to determine if they identify any additional pertinent treatment providers who may have relevant records not presently associated with the claims file. Following the receipt of any necessary authorizations from the Veteran, attempt to obtain all identified medical records. All reasonable attempts to obtain such records should be made and documented. This effort must include an initial request and, if the records are not received, at least one follow-up request. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records herself, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 5. After the development requested in items (1) through (4) are complete, schedule the Veteran for an examination to determine the nature and etiology of her claimed headache condition. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and reviewed by the clinician, and it should be confirmed that such records were available for review. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should identify any headache condition present. If a headache condition is identified, the examiner should offer an opinion as to the following: (a) Is the Veteran's headache condition an organic disease of the nervous system? (b) Is it "at least as likely as not" (50 percent or greater probability) that the Veteran's headache condition had its clinical onset during active service or is related to any in-service disease, event, or injury? In providing this opinion, the reviewing clinician's attention is directed to the Veteran's in-service treatment for (a) migraine headaches on July 20, 1984, when she reported having pain in her head that radiated down her neck to her back, as well as tingling around her right temporal area; (b) her August 29, 1984, diagnosis of possible cluster headaches; (c) her September 18, 1984, diagnosis of tension headaches; (d) her December 1984, admission to the U.S. Air Force Hospital at Laughlin for tension headaches and a possible drug overdose; (e) her May 27, 1985 diagnosis of migraine headaches; and (f) her October 27, 1986, diagnosis of vascular headaches, with a history of "migraine" headaches. For purposes of this remand, the examiner should accept as true the Veteran's statements to the effect that she first began experiencing recurrent headaches during service in 1984 and has continued to have migraine / tension headaches on an intermittent basis since. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. After the development requested in items (1) through (4) are complete, schedule the Veteran for an examination to assess the current nature, extent, and severity of her service-connected chronic sinusitis. To the extent the Veteran's chronic sinusitis is subject to active and inactive stages (i.e., flare-ups), the examination should be conducted during an active stage, if reasonably practicable. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should identify and describe in detail all manifestations of the Veteran's service-connected chronic sinusitis. In doing so, the examiner is asked to identify and distinguish, to the extent possible, any symptoms, such as headaches, associated with her service-connected chronic sinusitis, from any symptoms associated with a different medical condition. The examiner should also specifically document the number of "non-incapacitating" episodes of sinusitis (i.e., episodes of sinusitis characterized by headaches, pain, tenderness, and crusting or purulent discharge) that the Veteran experiences per year. In providing this opinion, the examiner's attention is directed to the Veteran's report that she now experiences at least six non-incapacitating episodes of sinusitis per year. See Board Hearing Tr. at 12. Additionally, the examiner should specifically document the number of "incapacitating" episodes of sinusitis (i.e., episodes of sinusitis requiring prolonged (four to six weeks) antibiotic treatment and bed rest and treatment by a physician) that the Veteran experiences per year. Finally, the examiner should discuss the degree of occupational impairment attributable to the Veteran's service-connected chronic sinusitis. In particular, the examiner should describe what types of employment activities would be limited because of the Veteran's service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. In doing so, the examiner is directed to the Veteran's assertions that, due in part to her chronic sinusitis, it is difficult to maintain employment as a physical trainer. See March 2011 Board Hearing Tr. at 14, 16-17. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. In this regard, it is essential that the examiner carefully explain why and how all conclusions and opinions were reached. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 7. After the development requested in items (1) through (4) are complete, schedule the Veteran for an examination to assess the current nature, extent, and severity of her service-connected hemorrhoids. To the extent the Veteran's hemorrhoid disability is subject to active and inactive stages (i.e., flare-ups), the examination should be conducted during an active stage, if reasonably practicable. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and reviewed by the clinician, and it should be confirmed that such records were available for review. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should identify and describe in detail all manifestations of the Veteran's service-connected hemorrhoids. In doing so, the examiner should specifically note whether the Veteran's service-connected hemorrhoid disability is manifested by persistent bleeding with secondary anemia, and/or by fissures. The examiner should reconcile his/her findings with the other medical opinions of record, including the July 2012 VA outpatient treatment record that indicates that a fissure was not present, and the March 2012 VA examination report, which indicates the presence of a fissure. The examiner is also asked to identify and distinguish, to the extent possible, any symptoms, such as anemia, associated with the Veteran's service-connected hemorrhoids, from any symptoms associated with a different medical condition. Finally, the examiner should discuss the degree of occupational impairment attributable to the Veteran's service-connected hemorrhoids. In particular, the examiner should describe what types of employment activities would be limited because of the Veteran's service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. In doing so, the examiner is directed to the Veteran's assertions that, due in part to her hemorrhoids, it is difficult to maintain employment as a physical trainer. See March 2011 Board Hearing Tr. at 14, 16-17. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. In this regard, it is essential that the examiner carefully explain why and how all conclusions and opinions were reached. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 8. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should 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 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. 2010). ______________________________________________ Nicole Klassen Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs