Citation Nr: 1323680 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-47 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for hypertension, including as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a disability manifested by tingling and numbness of the hands and feet, claimed as Gulf War Syndrome. 3. Entitlement to service connection for chronic fatigue syndrome. 4. Entitlement to service connection for diabetes mellitus, type II. 5. Entitlement to an initial, compensable rating for irritable bowel syndrome. 6. Entitlement to disability evaluation in excess of 20 percent for diffuse musculoskeletal arthralgia and myalgia. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1971, from October 1990 to May 1991, and from October 2003 to March 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran provided testimony at an RO hearing on appeal in April 2010. He also provided testimony at a videoconference before the Board in May 2013. A transcript of each hearing is of record. REMAND The Veteran seeks service connection for hypertension, to include as secondary to his service-connected PTSD. In this case, the Veteran has not been afforded a VA examination to determine the etiology of his hypertension. Specifically, a VA examination is warranted to determine whether the Veteran's hypertension is etiologically related to service or service-connected disability, such as PTSD. The Veteran also seeks service connection for a disability manifested by tingling and numbness of the hands and feet, claimed as Gulf War Syndrome. VA examinations have been provided for this claimed condition; however, the examination reports are not clear as to whether the Veteran currently has a disorder manifested by tingling and numbness of the hands and feet, and if so, whether it is related to service. In this case, a remand is necessary to obtain a clear opinion regarding the existence and etiology of the claimed disorder. The record reflects that the Veteran filed a timely notice of disagreement with a June 2012 rating decision denying service connection for chronic fatigue syndrome and diabetes mellitus, type II, and assigning a noncompensable rating for irritable bowel syndrome. Although the record reflects that the RO has responded to the notice of disagreement, the record does not reflect that the RO has issued a Statement of the Case in response to the notice of disagreement or provided the Veteran with the requested hearing before a Decision Review Officer in connection with these issues. Because the notice of disagreement placed these issues in appellate status, the issues must be remanded for the originating agency to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Moreover, these issues are inextricably intertwined with the claim for a TDIU. Therefore, these issues should be resolved before the Board decides the TDIU claim. Moreover, at the Board hearing, the Veteran contended that his service-connected musculoskeletal arthralgia and myalgia and his service-connected posttraumatic stress disorder had increased in severity since the most recent VA examinations of these disabilities. Therefore, the Veteran should be afforded current VA examinations to determine the current degree of severity of these disabilities and the impact of all of his service-connected disabilities on his employability. Moreover, the raised claim for an increased rating for PTSD should be fully developed and adjudicated before the Board decides the claim for a TDIU. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake all indicated development in response to the claim for an increased rating for PTSD, to include providing appropriate notice and affording the Veteran an appropriate examination. 2. The RO or the AMC should adjudicate the claim for an increased rating for PTSD and inform the Veteran of his appellate rights with respect to this issue. 3. The or the AMC should undertake any indicated development with respect to the issues of entitlement to a higher initial rating for irritable bowel syndrome and entitlement to service connection for chronic fatigue syndrome and diabetes mellitus type II, to include affording the Veteran a hearing before a Decision Review Officer if the Veteran has not withdrawn his request for such a hearing. The RO or the AMC should then readjudicate these issues. If the benefits sought are not granted to the Veteran's satisfaction, he and his representative should be provided a Statement of the Case and informed of the requirements to perfect an appeal with respect to the issues therein. 4. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertaining to treatment of the Veteran for hypertension and disability manifested by tingling and numbness in the hands and fingers. It should also undertake appropriate development to obtain any outstanding records pertaining to treatment or evaluation of the Veteran's service-connected disabilities during the pendency of the claims. 5. When all indicated record development has been completed, the Veteran should be afforded VA examinations by a physician with the appropriate expertise to determine the etiology of his hypertension. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. A notation to the effect that this record review took place should be included in the examination report. Any indicated testing should be completed. Based on review of the pertinent medical history, examination of the Veteran, consideration of the Veteran's lay statements, and with consideration of sound medical principles, the examiner should opine as to whether it is at least as likely as not (a 50 percent or better probability) that hypertension was caused or permanently worsened by any period of active service or his service-connected PTSD. The examiner must explain the rationale for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. 6. When all indicated record development has been completed, the Veteran also should be afforded VA examinations by a physician with the appropriate expertise to determine the nature and etiology of the disability claimed as tingling and numbness of the hands and feet. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. A notation to the effect that this record review took place should be included in the examination report. Any indicated testing should be completed. Based on review of the pertinent medical history, examination of the Veteran, consideration of the Veteran's lay statements, and with consideration of sound medical principles, the examiner should identify any disorders present during the period of the claim responsible for the Veteran's claimed symptoms. With respect to each such disorder, the examiner should opine as to whether it is at least as likely as not (a 50 percent or better probability) that the disorder is etiologically related to service or was caused or permanently worsened by service-connected disability. If the claimed symptoms are not attributable to a known clinical diagnosis, the examiner should so state and identify all objective indications of the claimed symptom. The examiner must explain the rationale for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. 7. When all indicated record development has been completed, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the current severity and manifestations of his diffuse musculoskeletal arthralgia and myalgia. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. A notation to the effect that this record review took place should be included in the examination report. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. 8. When all indicated record development has been completed, the Veteran should be afforded a VA examination by an examiner or examiner with sufficient expertise to determine the impact of all of his service-connected disabilities on his employability. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner(s). A notation to the effect that this record review took place should be included in the examination report. The examiner or examiners should provide an opinion as to whether the Veteran's service-connected disabilities are sufficient by themselves to preclude the Veteran from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. The rationale for all opinions expressed must also be provided. 9. The RO or the AMC should also undertake any other development it determines to be warranted. 10. Then, the RO or the AMC should readjudicate the claims for service connection for hypertension and disability manifested by tingling and numbness of the hands and feet, a rating in excess of 20 percent for diffuse arthralgia and myalgia, and for a TDIU (if it has not been rendered moot). If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided an appropriate supplemental statement of the case and afforded the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ Shane A. Durkin 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).