Citation Nr: 1315103 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 09-27 917 ) DATE ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a disability characterized by muscle aches. 3. Entitlement to service connection for alopecia. 4. Entitlement to service connection for rhinitis. 5. Entitlement to service connection for posttraumatic stress disorder (PTSD). 6. Entitlement to an initial rating in excess of 10 percent for the service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from January 2000 to May 2000 and from February 2003 to January 2004. This included service in Kuwait. He also served with the Puerto Rico National Guard. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in San Juan, Puerto Rico. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND With respect to the right knee disorder, there is an undated physical profile in his service treatment records showing that the Veteran was placed on a profile for chronic right knee pain, although the lack of a date makes it unclear on its face whether this occurred during either period of active service. After service, on various VA treatment records, the Veteran reported that he fell on a ship and injured his right knee during service. The Veteran submitted a letter from a shipmate who indicated that he saw the Veteran fall and injure his back and knee during his service in October 2003. At the Veteran's Gulf War Registry examination in November 2004 he denied a right knee injury, but dated his right knee pain to around the date of the fall in service. Given the Veteran's reports of a right knee injury in service and the documentation of complaints of chronic right knee pain on the profile in his service treatment records, he should be afforded an examination of his right knee to determine whether there is any relationship to service. With respect to the alopecia, this is documented in a Report of Medical Examination in December 2003. Hence, he should be afforded a VA examination to determine whether he has any chronic disability related to the alopecia noted in service. With respect to the rhinitis, this is noted on the Veteran's April 1999 entrance examination for the National Guard. No entry examination appears to have been done in connection with the Veteran's second period of service in 2003-2004. The service treatment records from the Veteran's second period of service show several complaints of runny nose and congestion, diagnosed as sinusitis. At the Veteran's Gulf War Registry examination in November 2004, the Veteran reported that his rhinitis got progressively worse and that it was worse since returning from the Persian Gulf. At a VA general medical examination in November 2005 chronic rhinitis was documented. Accordingly, he should be afforded a VA examination with respect to this condition. With respect to the muscle aches, the Board notes that the Veteran is a Gulf War Veteran. Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of "qualifying chronic disability," resulting from an undiagnosed illness. A medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service-connection. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). An undiagnosed illness manifest by such "signs or symptoms" as muscle pain is also a qualifying chronic disability. 38 C.F.R. § 3.317(b). The Veteran is competent to report that he experiences muscle aches, although no muscle condition has been found or diagnosed. Under these circumstances, the Veteran should be afforded a VA examination to determine whether his muscle aches are due to a Gulf War undiagnosed illness. With respect to the claimed PTSD, it was evaluated under a previous version of 38 C.F.R. § 3.304, which required independent corroboration of a claimed stressor in most cases in which the Veteran was not a combat Veteran. The new version of that regulation effective July 2010 provided that service connection for PTSD arising out of fear of hostile military or terrorist activity may be granted if certain criteria are met without verification of the claimed stressor. The Veteran's claim should be evaluated under the new rule. Moreover, the VA psychiatric examination in January 2006 diagnosed adjustment disorder with anxious mood. Later VA treatment records document disorders variously termed as adjustment disorders or anxiety disorders. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009) a claim for PTSD is deemed to include a claim for service connection for any other psychiatric disorder that may be productive of the Veteran's symptoms. A new examination is necessary to address whether the Veteran has PTSD under the criteria set forth in the new regulation or any other psychiatric disorder related to his service. Additionally, a review of the service treatment records documents that the existence of an anxiety disorder was considered in service in June 2003 and that the Veteran received mental health treatment in service and has separately maintained mental health records from service which are not part of the service treatment records in the claims file. Finally, with respect to the Veteran's claim for a higher initial rating for his back disorder, his back was last examined in September 2009 and this exam report is over three years old. While the Veteran has not specifically claimed that his back problems got worse, his representative argued that the exam was too old and a new exam should be ordered in his March 2013 brief. Under these circumstances, the Board finds that the Veteran should be provided an updated VA examination of his back. Also, there are a couple of untranslated Spanish documents in the claims file, a statement from the Veteran and a treatment record. These should be translated. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to obtain the Veteran's service mental health records. If these records cannot be obtained, the claims file should document the attempts that were made to obtain the records and the Veteran should be notified of VA's inability to obtain the records. 2. Obtain translations of any Spanish language documents in the claims file. 3. After the aforementioned treatment records are received, schedule the Veteran for a VA psychiatric examination. The examiner should review the claims file in conjunction with the examination. The examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that the Veteran has PTSD as a result of fear of hostile military or terrorist activity. Additionally, for every diagnosed mental disorder other than PTSD, the examiner should indicate whether it is at least as likely as not had its clinical onset during his service. A complete rationale for all conclusions reached should be included in the report of examination. If the examiner is unable to provide the requested opinion without resort to undue speculation, he or she should explain why this is the case. 4. Schedule the Veteran for a VA examination to determine the current severity of the service-connected low back disability. The examiner should review the claims file in conjunction with the examination. The examiner should document all symptom and functional effects of the Veteran's low back disorder, including range of motion before and after repetition. 5. Schedule the Veteran for a VA examination in order to determine the nature and likely etiology of the claimed right knee disorder. The examiner should review the claims file in conjunction with examination. The examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that the Veteran's right knee condition had its clinical onset during service or is due to and injury or other event or incident of service, including a fall in October 2003. The examiner should provide a rationale for all conclusions reached in his or her report. If the examiner is unable to provide the requested opinion without resort to undue speculation, he or she should explain why this is the case. 6. Schedule the Veteran for a VA examination to ascertain the nature and likely etiology of the claimed alopecia. The examiner should review the claims file in conjunction with the examination. The examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that alopecia had its clinical onset during service. The examiner should provide a complete rationale for all conclusions reached in the report of examination. If the examiner is unable to provide the requested opinion without resort to undue speculation, he or she should explain why this is the case. 7. Schedule the Veteran for a VA examination to determine that nature and likely etiology of the claimed upper respiratory condition. The examiner should review the claims file in conjunction with examination. The examiner should indicate whether any preexisting rhinitis got worse in service and, if so, whether this was due to the natural progression of the disease or to some other factor such as his exposure to environmental hazards in Kuwait. The examiner should indicate if there was any progression to a chronic sinus condition as a result of rhinitis in service. The examiner should provide a complete rationale for all conclusions reached in the report of examination. If the examiner is unable to provide the requested opinion without resort to undue speculation, he or she should explain why this is the case. 8. Schedule the Veteran for a VA examination to ascertain the nature and likely etiology of the claimed muscle aches. The examiner should review the claims file in conjunction with the examination. The examiner should indicate whether the Veteran currently has a muscle disorder and, if so, whether it is at least as likely as not (at least 50 percent likely) that it had its clinical onset during service. If there are objective symptoms that are not attributable to any known diagnosis, the examiner should indicate whether the Veteran's symptoms are related to a Gulf War undiagnosed illness. The examiner should provide a complete rationale for all conclusions reached in the report of examination. If the examiner is unable to provide the requested opinion without resort to undue speculation, he or she should explain why this is the case. 9. After completion of the above development, the Veteran's claims remaining on appeal should be readjudicated in light of all the evidence. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ STEPHEN L. WILKINS 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).