Citation Nr: 1331801 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-09 760A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for headaches, to include as secondary to service-connected corneal scar of the left eye, secondary to lacerations with hyperopia, and astigmatism. 2. Entitlement to service connection for a chronic disability manifested by chronic fatigue and joint pain, to include as due to undiagnosed illness, and to include as secondary to service-connected posttraumatic stress disorder (PTSD) with major depressive disorder. 3. Entitlement to an increased rating for a corneal scar of the left eye, secondary to lacerations with hyperopia, and astigmatism, rated noncompensable prior to August 4, 2009, and 10 percent from August 4, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1982 to January 1986 and from February 1986 to July 1991, to include service in the Persian Gulf. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the Veteran's claims folder rests with the RO in Detroit, Michigan, from which the appeal was certified. In May 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In July 1991, the Veteran submitted claims of entitlement to service connection for a right middle finger disability and a left knee disability. As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND A July 2010 rating decision denied entitlement to a compensable rating for the service-connected left eye disabilitiy for the rating period prior to August 4, 2009, and assigned a 10 percent rating for the left eye disabilitiy from August 4, 2009. The Board finds that a statement from the Veteran received in August 2010 may be reasonably construed as a notice of disagreement with that determination. However, the record does not reflect that the Veteran has been issued a statement of the case thereto, as required by 38 C.F.R. § 19.26(d) 2012. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). In July 2007, the Veteran underwent VA examination in connection with his claim of entitlement to service connection for headaches. The VA examiner diagnosed headaches without objective residuals. With respect to whether the Veteran's recurrent headaches were secondary to his left eye condition, the VA examiner found he could not resolve the issue without resorting to mere speculation. In May 2008, a VA examiner reported that it was unlikely that the Veteran's migraines were due to left eye trauma. The VA examiner did not provide a rationale for the opinion. However, the VA examiner also suggested that the Veteran patch his left eye if he felt the irregularities resulting from his cornea exacerbated his migraines. In May 2010, a VA examiner diagnosed migraine headaches but did not provide an etiological opinion. There are no other clinical opinions of record addressing the etiology of the Veteran's diagnosed migraine headaches. Upon review, the Board finds an additional examination is necessary to determine the nature and etiology of the Veteran's headaches, particularly in light of the May 2008 VA examiner's notation suggesting the possible aggravation of the Veteran's headaches by his service-connected corneal scar of the left eye. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002); 38 C.F.R. § 3.159 (2013). In July 2007, the Veteran underwent VA examination in connection with his claim of entitlement to service connection for a chronic disability manifested by chronic fatigue and joint pain. The VA examiner diagnosed subjective chronic fatigue without objective findings to support a diagnosis. The VA examiner opined that the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. In October 2008, a VA examiner diagnosed chronic fatigue but did not provide an etiological opinion. In addition, the VA examiner reported an unclear diagnosis related to joint pain and stated that although the Veteran was treated by multiple providers, there had been no work up to provide a diagnosis. Upon review, the Board finds that the VA examinations are inadequate for adjudication purposes. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the VA examiners did not provide opinions with respect to the actual etiology of the Veteran's chronic fatigue and joint pain and did not address whether the signs or the symptoms claimed by the Veteran were attributable to an undiagnosed illness associated with service in the Persian Gulf War. In addition, as the Veteran has asserted that his chronic fatigue may be related to his depression, a VA examination is necessary to address the claim as secondary to the Veteran's service-connected PTSD with major depressive disorder. Therefore, in order to satisfy VA's duty to assist, the Board finds a remand is warranted in order to afford the Veteran an additional VA examination with respect to the issue of entitlement to service connection for a chronic disability manifested by chronic fatigue and joint pain. 38 U.S.C.A. §§ 5103A, 5107(a); 38 C.F.R. § 3.159. In addition, the record indicates that the Veteran has previously applied for disability benefits from the Social Security Administration (SSA). Although the Veteran submitted the records he reportedly included in his claim for SSA disability benefits, the record does not contain a decision made thereon and there is no indication that VA has attempted to obtain complete records from the SSA. In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the United States Court of Appeals for Veterans Claims (Court) found that VA's duty to assist specifically included requesting information from other Federal departments. The Court has further held that VA must obtain SSA records which may have a bearing on claims for VA benefits. See Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). Moreover, the Court has determined that, "[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained." Hyatt v. Nicholson, 21 Vet. App. 390 (2007). The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claim for VA compensation. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). However, that possibility cannot be excluded under the circumstances presented here, and the RO should request the Veteran's SSA records. See Golz, 590 F.3d at 1321. Finally, at the May 2012 hearing, the Veteran testified that he had received treatment at the VA Medical Centers located in Ann Arbor, Michigan; Jacksonville, Florida; Pensacola, Florida; and Detroit, Michigan. In addition, a November 2009 letter from a VA physician, Dr. Lyubkin, appears incomplete. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators, regardless of whether those records are physically in the claims file. See Bell v Derwinski, 2 Vet. App. 611, 613 (1992). As it does not appear that all VA treatment records for the Veteran have been associated with the record and made available for review, a remand is necessary to obtain any outstanding VA treatment records, to include a complete copy of the November 2009 letter from Dr. Lyubkin. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a VCAA notice letter that explains how to substantiate his claim of entitlement to service connection for a disability manifested by chronic fatigue and joint pain, to include as due to undiagnosed illness, and to include as secondary to service-connected PTSD with major depressive disorder. Provide the Veteran and his representative with the appropriate amount of time to reply. 2. Obtain and associate with the Veteran's hardcopy or electronic claims file any outstanding VA treatment records, to specifically include all records from the VA Medical Centers in Ann Arbor, Michigan; Jacksonville, Florida; Pensacola, Florida; and Detroit, Michigan. All actions to obtain the requested records should be documented fully in the claims file. If any records cannot be located or no such records exist, the Veteran should be notified, and a memorandum of unavailability should be associated with the claims file. 3. Contact the Social Security Administration and request a copy of any decision made pursuant to a claim of the Veteran for disability benefits, as well as the medical records upon which any decision was based. All requests and responses, positive and negative, should be associated with the Veteran's claims file. Efforts to obtain these and any other Federal records must continue until the RO determines that the records sought do not exist or that further efforts to obtain the same would be futile. If it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) must be provided to the Veteran and his representative, and he must then be afforded an opportunity to respond. 4. Schedule the Veteran for an additional VA examination to determine the nature and etiology of his headaches. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. Following a review of the Veteran's claims file and with consideration of the Veteran's lay testimony, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's headaches are related to active duty. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's headaches are proximately due to, or chronically aggravated by, his service-connected corneal scar, left eye, secondary to lacerations with hyperopia, and astigmatism. If aggravation is found, the examiner should address the baseline level of disability before it was aggravated by the service-connected disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. In providing the opinion, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the examination report. 5. Schedule the Veteran for an examination for the purpose of determining the nature and etiology of any chronic disability manifested by chronic fatigue and/or joint pain, to include as due to an undiagnosed illness, and to include as secondary to service-connected PTSD with major depressive disorder. The claims file must be provided to the examiner for review in connection with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After review of the claims file and with consideration of the Veteran's lay testimony, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current disability manifested by chronic fatigue and/or joint pain was incurred in or due to active duty. The VA examiner should consider the Veteran's reports of experiencing symptoms of chronic fatigue in service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any disability manifested by chronic fatigue and/or joint pain is proximately due to or aggravated by the Veteran's service-connected psychiatric disability. If aggravation is found, the examiner should address the baseline level of disability before it was aggravated by the service-connected disability. For any of the above signs and symptoms which are not attributable to a known diagnosis, the findings should reflect all objective indications of chronic disability to include either objective medical evidence perceptible to a physician or other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2) (2013). In other words, if not attributable to a known clinical diagnosis, the examiner is asked to express an opinion as to whether the signs or symptoms claimed are attributable to an undiagnosed illness associated with service in the Persian Gulf War. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. In formulating the opinion, the term at least as likely as not does not mean "within the realm of possibility." Rather, it means the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the examination report. 6. A statement of the case, containing all applicable laws and regulations, on the issue of entitlement to an increased rating for corneal scar of the left eye, secondary to lacerations with hyperopia, and astigmatism, rated noncompensable prior to August 4, 2009, and rated 10 percent from August 4, 2009, must be issued. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran should be advised of the time period in which to perfect his appeal. Only if an appeal as to such issue is perfected within the applicable time period, should such issue be returned to the Board for appellate review. 7. After the development requested has been completed, the RO should re-adjudicate the claims of entitlement to service connection for headaches, to include as secondary to service-connected corneal scar of the left eye, secondary to lacerations with hyperopia, and astigmatism, and entitlement to service connection for a chronic disability manifested by fatigue and joint pain, to include as due to undiagnosed illness, and to include as secondary to service-connected PTSD with major depressive disorder. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board for appellate review. 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). _________________________________________________ U. R. POWELL 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).