Citation Nr: 1332969 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-41 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a chronic respiratory disorder. 2. Entitlement to an initial compensable rating for tendonitis of the right elbow. 3. Entitlement to an initial compensable rating for tendonitis of the right wrist. 4. Entitlement to an initial compensable rating for right leg shin splints. 5. Entitlement to an initial compensable rating for left leg shin splints. 6. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from November 2003 to August 2009. She also had a period of active duty for training from January 1981 to May 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Veteran testified at a videoconference Board hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with the claims file. Following the hearing, the Veteran submitted additional evidence in support of her claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c) (2013). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with this appeal. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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 Initially, the Veteran contends that she is entitled to service connection for a chronic upper respiratory disorder. She alleges that the upper respiratory disorder had onset in service. More recently, in a January 2011 statement, her representative asserted that the Veteran's claimed respiratory condition was secondary to the service-connected sleep apnea. The Board notes that she separately claimed service connection for sinusitis, which was denied. She did not appeal that decision and that condition is not part of her current appeal for a chronic upper respiratory disorder. The service treatment reports recorded respiratory complaints as well as treatment for upper respiratory infections. At the September 2011 personal hearing the Veteran testified that she had recently been treated for bronchitis. The episode lasted approximately 3 weeks. On VA examination in September 2009, the Veteran reported chronic respiratory infections associated with sinusitis. The examiner noted that the claims file was not available for review. Following an examination of the Veteran, the examiner noted no abnormal respiratory findings and diagnosed bronchitis; however, the examiner failed to address the etiology of the diagnosed bronchitis. As it remains unclear to the Board whether the Veteran currently suffers from an upper respiratory disorder that is related to service or service connected sleep apnea, a remand for another VA examination and opinion is necessary to fully and fairly assess the merits of her claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the Veteran should be provided with notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) concerning the claim for service connection for an upper respiratory disorder on a secondary basis pursuant to 38 C.F.R. § 3.159. Next, the Veteran seeks initial compensable disability ratings for tendonitis of the right elbow, tendonitis of the right wrist, bilateral leg shin splints, and GERD. Although her last VA examinations are not overly stale, review of the claims file shows that the claimed disabilities may have worsened since she was last examined in September 2009 and June 2010. In this regard, the Veteran was afforded a VA general examination in September 2009. She complained of bilateral leg shin splints that were painful and impaired her ability to walk or run. Similarly, on VA examination in June 2010 the Veteran complained of pain due to bilateral shin splints that limited her walking ability. On examination, the examiner noted extreme tenderness to very slight palpation over both shins. Subsequently, at the September 2011 personal hearing, the Veteran testified that she had been prescribed orthotics due to her bilateral shin splints. More recently in a statement submitted in December 2012, the Veteran reported that she had been prescribed a cane for ambulation which she alleges is due to the worsening bilateral shin splints. With regards to her claim for an increased rating for GERD, on VA general examination in September 2009 the examiner noted GERD with heartburn, but no regurgitation. She denied hematemesis, vomiting or weight loss. The condition was effectively treated with medication. On examination in June 2010, the Veteran reported nightly regurgitation with vomiting 3 times a week. She also endorsed occasional pyrosis. She denied melena or hematemesis. There were no signs of nutrition deficiency or anemia. After the most recent VA examination of record, a VA clinical treatment note in March 2011 reflects that the Veteran was experiencing increased epigastric pain, along with 2 episodes of rectal bleeding in the previous months. She also asserted that the condition had worsened as evidence by the fact that the medication dosage to treat GERD was increased in 2012. Next, the Veteran contends that her right wrist tendonitis is more disabling than currently evaluated and has worsened in severity since it was last examined. In this regard, the VA examination report in September 2009 recorded complaints of pain due to tendonitis in the right wrist. She reported problems with lifting and certain motions. On examination, range of motion of the wrist was essentially within normal limits with no objective evidence of painful motion. X-rays of the right wrist were normal. The examiner diagnosed recurrent tendonitis of the right wrist. On VA examination in June 2010, the examiner noted that the Veteran's right wrist symptoms remained unchanged. She endorsed flare-ups that were activity related. She took medication and used a wrist cockup splint with an ACE bandage. On examination, the right wrist had essentially normal motion. There was medial swelling on the right wrist with some tenderness. Similarly, the Veteran claims that her right elbow tendonitis is more disabling than currently evaluated and has worsened in severity since it was last examined. In this regard, the VA examiner in September 2009 noted complaints of pain, specifically, problems with lifting and certain motions, yet on examination range of motion of the elbow was essentially within normal limits with no objective evidence of painful motion. X-rays of the right elbow were also normal. The examiner diagnosed recurrent tendonitis of the elbow. On VA examination in June 2010, the examiner noted that the Veteran's right elbow symptoms remained unchanged. She endorsed flare-ups that were activity related. The Veteran used an ACE bandage for her elbow and heat as needed. On examination there was tenderness over the olecranon. Range of motion of the elbow was normal and no other related abnormalities were noted. A MRI revealed degenerative joint disease of the right elbow with findings suggestive of mild tendinosis at the distal aspect of the triceps tendon. At the September 2011 Board hearing, the Veteran testified that her right elbow and right wrist conditions had worsened. She described right arm pain, along with a burning sensation and numbness that caused her to drop objects. She related inability to fully extend her arm due to pain, as well as loss of function of the right wrist. A new examination is needed to fully and fairly evaluate the Veteran's claims for increased ratings. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Relevant ongoing VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter that advised the Veteran of the information and evidence necessary to substantiate a claim for service connection for a chronic upper respiratory disorder on a secondary basis. 2. Obtain, either electronically or physically, all relevant treatment records for treatment received at the Columbia, South Carolina VA Medical Center, dating since July 2010. 3. Schedule the Veteran for a VA respiratory examination to determine whether the Veteran suffers from a chronic upper respiratory disability (other than sinusitis), and if so, whether such is related to service. The examiner must review the claims file in conjunction with the examination. All indicated tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should address the following: a) Provide a diagnosis for any chronic respiratory disability found to be present. b) State whether it is as likely as not (50 percent probability or greater) that any respiratory disorder found to be present began in service or is otherwise related to the Veteran's service, including the upper respiratory infections noted in service. If no current disability is found, the examiner should indicate whether the bronchitis diagnosed on the September 2009 VA examination represents a chronic disability, or whether such was merely an acute condition that resolved without residuals. c) State whether it is at least as likely as not (50 percent probability or greater) that any respiratory disorder found to be present was caused by the service-connected sleep apnea. If not caused by the sleep apnea, the examiner should indicate whether the respiratory disorder was permanently worsened beyond normal progression (aggravated) by the sleep apnea. If the diagnosed respiratory disability is found to be aggravated by the sleep apnea, the examiner should provide an opinion concerning the degree of aggravation. 4. Schedule the Veteran for a VA esophagus examination to assess the current severity of her GERD. The Veteran's claims folder should be reviewed by the examiner. All tests and studies deemed necessary should be accomplished, and the results reported. The examiner should indicate all symptomatology resulting from the Veteran's GERD. 5. Schedule the Veteran for a VA lower leg examination to assess the current severity of her service-connected bilateral lower extremity shin splints. The Veteran's claims folder should be reviewed by the examiner. All tests and studies deemed necessary, and all findings should be reported. The examiner should identify any objective findings of the shin splints and address the functional impairment caused by such. Symptoms attributable to the separately service connected bilateral knee disability and plantar fasciitis should not be considered when addressing the functional impairment from the shin splints. 6. Schedule the Veteran for a VA wrist and elbow examination to determine the current nature and severity of her right wrist and right elbow tendonitis. The Veteran's claims folder should be reviewed by the examiner. All tests and studies deemed necessary should be accomplished, and the results reported. All findings relating to the wrist and elbow should be reported. If the Veteran reports neurological complaints in the right elbow or wrist, the examiner should indicate whether there are any objective findings supporting such complaints and whether such complaints are related to the service connected tendonitis versus a different etiology. The examiner should provide a rationale for any opinion expressed. 7. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant 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). _________________________________________________ K.A. BANFIELD 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) (2013).