Citation Nr: 1317330 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 06-18 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for recurrent nephrolithiasis (claimed as kidney stones), to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for tinea versicolor, claimed as skin rash, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for sinusitis on a presumptive basis under 38 C.F.R. § 3.317. 5. Entitlement to service connection for right ear hearing loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 6. Entitlement to an initial compensable rating for left ear hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to April 1980 and from October 2004 to October 2005, including service in the Southwest Asia Theater of Operations from November 2004 to October 2005. He apparently also served on active duty from May 2009 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a decision in September 2010, the Board denied the issue of service connection for sinusitis, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, and remanded the issues of service connection for headaches, kidney stones, tinea versicolor claimed as skin rash, right ear hearing loss, and left ear hearing loss for further development, including provision to the Veteran of VA examinations. In October and December, 2010, the requested examinations were done. Unfortunately, additional evidentiary development is needed before a decision on the remanded issues of service connection for headaches, kidney stones, tinea versicolor claimed as skin rash, and right ear hearing loss can be reached. The Veteran appealed the Board's September 2010 decision insofar as it denied service connection for sinusitis to the United States Court of Appeals for Veterans Claims (Court), which in an August 2012 memorandum decision affirmed the Board's denial of service connection for sinusitis on a direct basis but vacated the Board's September 2010 decision based on the Veteran's claim of entitlement to service connection due to undiagnosed illness or medically unexplained chronic multi symptom illness on a presumptive basis under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. In a rating decision dated in November, 2011, the AMC granted service connection for left ear hearing loss with a noncompensable evaluation effective October 29, 2005. In December 2011 the Veteran filed a notice of disagreement regarding the assigned disability rating. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND In a letter to the Veteran dated December 14, 2011, the RO advised the Veteran that his VA benefits had been stopped beginning May 19, 2009, the date the Veteran had returned to active duty, until October 1, 2010, the day after he was released from active duty. See Electronic Claims File. The RO explained that the Veteran had been identified by the Department of Defense as being on active duty during that time period, and added that a veteran may not receive VA benefits while on active duty. Unfortunately, service records relating to this period of active duty, including service treatment records, a DD Form 214, and other service personnel records, have not been associated with the claims file. As noted in the Board's September 2010 remand, although the presumptive provisions of 38 C.F.R. § 3.317 do not apply to disorders that pre-existed a Veteran's service in the Persian Gulf, service connection may still be warranted if it is shown that a pre-service disorder was aggravated during service, which the Veteran is alleging. Therefore, before a decision on any of the pending claims for service connection can be reached, the Veteran's 2009-2010 active duty records must be obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(2). Additionally, with regard to the pending claim for service connection for sinusitis on a presumptive basis under 38 C.F.R. § 3.317, in its August 2012 Memorandum Decision the Court ordered that the Veteran be accorded a new VA examination to ascertain the nature and etiology of the Veteran's sinus complaints during his deployment to the Persian Gulf. In accordance with 38 C.F.R. § 3.159(c)(4) this issue is remanded for provision to the Veteran of the requested examination. In addition to the foregoing, in December 2011 the Veteran requested that VA obtain his August 2011 audiology report from his National Guard unit. He also submitted an authorization for release of medical records (pertaining to his headaches) from a private physician. On remand these records must also be requested and associated with the claims file. 38 C.F.R. § 3.159(c). Finally, and again in December 2011, the Veteran submitted a notice of disagreement regarding the assigned noncompensable rating for his newly service-connected left ear hearing loss disability. As a Statement of the Case has not been issued, remand for provision to the Veteran of said is warranted. See 38 C.F.R. § 19.26(d). See also Manlincon v. West, 12 Vet. App. 238 (1999) (providing that where a notice of disagreement has been filed with regard to an issue, and a Statement of the Case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a Statement of the Case). On remand all VA treatment records dating from June 2011 should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (providing that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body). Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran a Statement of the Case on the issue of an initial compensable disability rating for left ear hearing loss. The Veteran must be informed that in order to perfect an appeal on this issue, he must timely file a substantive appeal, following the issuance of the Statement of the Case. 2. Schedule the Veteran for a VA examination regarding the issue of service connection for sinusitis. The claims file must be made available to, and reviewed by, the examiner. All indicated tests should be done, and all findings reported in detail; and the Veteran must be given an opportunity to describe his symptoms and the circumstances of his service in the Persian Gulf, including his exposure to environmental hazards. The examiner is then requested to opine as to whether: a) please state whether is it at least as likely as not that the Veteran's sinus complaints are of attributable to a known clinical diagnosis. b) please state whether is it at least as likely as not that the Veteran's sinus complaints attributable to a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. See 38 C.F.R. § 3.317(a)(2)(ii). All findings and conclusions, together with a rationale, should be set forth in a legible report. 3. Request all service records, including the Veteran's DD-214, service treatment records, and service personnel records relating to the Veteran's period of active military service from May 19, 2009, until October 1, 2010. Also, contact the South Carolina National Guard Unit, STARC, Joint Force Headquarters at 2775 Fish Hachery Road in West Columbia, South Carolina (29169), for a copy of the Veteran's August 2011 audiology report. 4. Associate, with the claims file, VA medical records pertaining to the Veteran dating from June 2011. Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file following the receipt of any necessary authorizations from the Veteran, including records identified by the Veteran in his November 2011 authorization for records. 5. Schedule the Veteran for an appropriate VA examination with regard to the claim for service connection for headaches. All indicated tests should be done and all findings reported in detail; and the Veteran must be given an opportunity to describe, in detail, not only the symptoms of his headaches, but the environmental circumstances of his service in the Persian Gulf. The examiner should state the likelihood that any headache disorder disability found to be present existed prior to service. If the examiner concludes that a headache disorder found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having headache disorder that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. 6. Then schedule the Veteran for VA examination(s) on the issues of service connection for right ear hearing loss, a skin disorder, and recurrent nephrolithiasis (kidney stones). The claims file must be made available to, and reviewed by, the examiner. All indicated tests should be done and all findings, including audiometric findings, reported in detail. The examiner is then requested to opine as follows: a) with regard to the issues of service connection for a skin disorder (diagnosed as tinea versicolor), and service connection for recurrent nephrolithiasis (claimed as kidney stones), the examiner should state the likelihood that any such disability found to be present existed prior to service. If the examiner concludes that such disorder found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having such a disorder that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. b) with regard to the issue of service connection for right ear hearing loss, opine as to whether it is at least as likely as not that a current right ear hearing loss disorder, if found, was incurred during active military service or is related to some incident of active military service, to include noise exposure. In formulating this opinion, the examiner is asked to assume that the Veteran had acoustic trauma during service. 7. Then readjudicate the appeal. If any benefit sought remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case that includes the reasons and bases for all determinations and affords the appropriate time period to respond. Then return the case to the Board for appellate review, unless otherwise indicated. The Veteran 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). _________________________________________________ STEVEN D. REISS 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).