Citation Nr: 1329980 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 06-10 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for an irritable stomach. 3. Entitlement to service connection for erectile dysfunction. 4. Entitlement to service connection for a psychiatric disorder, to include depression and a sleep disorder. 5. Whether new and material evidence has been received to reopen the claim of service connection for left ear hearing loss. 6. Entitlement to an initial compensable disability evaluation for a healed scar of the left eyebrow (claimed as a facial laceration). (The issues of entitlement to service connection for cervical and lumbar spine disorders are the subject of a separate decision). ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from December 1970 to April 1974. With the exception of the issue for an initial compensable evaluation for a left eyebrow scar, which arises from a March 2004 rating determination, the remaining issues listed on the title page arise from a March 2005 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in San Juan, the Commonwealth of Puerto Rico. As it relates to the March 2005 rating determination, the Board of Veterans' Appeals (Board), in a June 2011 decision, in pertinent part, found that new and material had been received to reopen the previously denied claim of service connection for a psychiatric disorder. The Board also remanded the issue of whether new and material evidence had been received to reopen the claim of service connection for left hearing loss as well as the issues of service connection for erectile dysfunction, irritable stomach, headaches, and the newly reopened claim of service connection for a psychiatric disorder, for further development. In an April 2012 statement in support of claim, the Veteran raised numerous issues of service connection to include sinusitis, a deviated nasal septum, hypertension, coronary artery disease, hypertensive retinopathy, dyslipidemia, bilateral carpal tunnel syndrome, peripheral neuropathy, and bunions on the left foot. In the same letter, the Veteran also raised the issues of service connection for tinnitus, fatigue, and fevers, which the Board observes were denied by the Board in June 2011 and subsequently dismissed by the United States Court of Appeals for Veterans Claims as part of a February 2012 Joint Remand. The Veteran also noted the issues of service connection for those issues remanded by the Board in the June 2011 decision, which remain currently on appeal. In a November 2012 letter, the Veteran raised the issues of clear and unmistakable error in June 1998 and March 2004 rating determinations. As to the March 2004 rating determination, the Board notes that this decision addressed the left eyebrow scar issue. This issue is currently on appeal and cannot be the subject of a clear and unmistakable claim as it has not become final. As to the June 1998 rating determination, the issues addressed in that rating determination were whether new and material evidence had been received to reopen the claim of service connection for a left ear condition, entitlement to service connection for a left shoulder laceration, and entitlement to service connection for a face laceration. The above addressed issues, although now raised by the record by way of the Veteran's April and November 2012 letters, have not been adjudicated by the Agency of Original Jurisdiction (AOJ) subsequent to their being raised by the Veteran. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. As will be discussed in more detail below, the issues on the title page of this decision must be remanded for additional development. The Veteran has revoked his power of attorney for Disabled American Veterans. The Board notes that the Veteran has a private attorney for the issues listed on the title page of this decision which are the subject of a separate decision but the attorney's representation has been specifically limited to those issues which are the subject of the other decision. Therefore, the Veteran currently has no representation on those issues which are the subject of this decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND As it relates to the issues of service connection for headaches; irritable stomach; erectile dysfunction; and a psychiatric disorder, to include depression and a sleep disorder, as well as the issue of whether new and material evidence has been received to reopen the claim of service connection for left ear hearing loss, the Board remanded these issues for specific development in June 2011, however, it is unclear that any actions have been taken to comply with the Board's directives, as the Veteran's claims file was likely with the Court of Appeals for Veterans Claims since the remand was issued. Therefore, the development requested as part of the prior remand will once again be listed to ensure that it is completed. Finally, as it relates to the issue of an initial compensable disability evaluation for the left eyebrow scar, the last comprehensive VA examination afforded the Veteran occurred in 2002. The Veteran has since reported that his eyebrow scar is now tender and painful. Based upon the Veteran's statements there appears to have been a possible worsening of his left eyebrow condition. The Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). As such, an additional VA examination to determine the extent of the current left eyebrow scar is warranted. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a supplemental VCAA notice letter to comply with the Court's holding in Kent v. Nicholson, 20 Vet. App. 1 (2006). In particular, this letter must notify him of the specific reason(s) for the previous denial of his claim for service connection for left ear hearing loss in the most recent final decision; (2) apprise him of the type of evidence and information necessary to reopen this claim, i.e., explain what would constitute new and material evidence; and (3) explain what specific evidence is required to substantiate the elements needed to grant the underlying claim on the merits. 2. Schedule the Veteran for a VA psychiatric examination. The Veteran's claims file should be provided and a complete rationale should be provided for any opinion expressed. The examiner should diagnose any current psychiatric disorder, and then should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that a currently diagnosed psychiatric disability either began during or was otherwise caused by the Veteran's military service. In doing so, the examiner should specifically address the Veteran's service treatment records, particularly the separation examination report which notes that he had personal problems while stationed in Thailand, as well as the Report of Medical History in which the Veteran checked "Yes" next to "Depression or excessive worry." The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, the examiner should expressly indicate this and discuss why this is not possible or feasible. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his complaints involving headaches. The Veteran's claims file should be provided and a complete rationale should be provided for any opinion expressed. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. The examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a disorder manifested by headaches that was incurred in service, to include as a result of being hit by a pressure hose in April 1972 and getting knocked down. 4. Schedule the Veteran for an appropriate VA examination, or examinations, to determine the nature and etiology of his complaints involving an irritable stomach and erectile dysfunction. This examination(s) also should include any necessary diagnostic testing or evaluation. Based on an examination and a comprehensive review of the claims file, the examiner(s) is asked to indicate whether it is at least as likely as not (50 percent or more probable) that the Veteran's has a gastrointestinal disorder and/or erectile dysfunction as a result of his psychiatric disorder, including any medication required to treat such a condition. Specifically, the examiner should state whether either disability is proximately due to or has been chronically (meaning permanently) aggravated by his psychiatric disorder, to include medication required to treat this condition. It again is critically necessary that the examiner discuss the medical rationale of the opinion. 5. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected left eyebrow scar. The examiner should report the severity of the Veteran's scar, to include scar size (length and width), tenderness and/or pain, whether surface contour is elevated or depressed on palpation, and whether it is adherent to underlying tissue. The examiner should also report the size of any hypopigmentation, hyperpigmentation, abnormal skin texture, and any area where underlying soft tissue is missing or skin is indurated and inflexible. The examiner should further report whether there is any gross distortion or asymmetry of any features or paired sets of features (including nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, and lips). 6. After completing the above and any other development deemed necessary, readjudicate the claims in light of the additional evidence. If any claim is not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 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). _________________________________________________ MATTHEW W. BLACKWELDER Acting 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).