Citation Nr: 1333028 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 08-23 107A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for asbestosis. 3. Entitlement to service connection for a respiratory disability, to include sarcoidosis, small airway disease, and chronic obstructive pulmonary disease (COPD), to include as due to hazardous chemical exposure in service. 4. Entitlement to a disability rating in excess of 30 percent for migraine headaches. 5. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbosacral spine. 6. Entitlement to a disability rating in excess of 20 percent for radiculopathy, right lower extremity, associated with DDD of the lumbosacral spine. 7. Entitlement to a disability rating in excess of 10 percent for radiculopathy, left lower extremity, associated with DDD of the lumbosacral spine. 8. Entitlement to a disability rating in excess of 10 percent for duodenal ulcer and hiatal hernia. 9. Entitlement to a disability rating in excess of 10 percent for hyperthyroidism. 10. Entitlement to an increased disability rating for dysthymic disorder with depressive features, evaluated as 10 percent disabling prior to September 24, 2010, and as 30 percent disabling therefrom. 11. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: Fleet Reserve Association WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran had active naval service from July 1972 to July 1976, and from May 1981 to May 1997. These matters came to the Board of Veterans' Appeals (Board) from a May 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the Board remanded the issues of entitlement to service connection for a bilateral knee disability, asbestosis, sarcoidosis, and bilateral leg disability; and remanded the issues of entitlement to increased ratings for migraine headaches, DDD of the lumbosacral spine, duodenal ulcer and hiatal hernia, hyperthyroidism, dysthymic disorder with depressive features; and, entitlement to a TDIU. In a March 2012 rating decision, the RO granted service connection for radiculopathy, right lower extremity, assigning a 20 percent rating, and radiculopathy, left lower extremity, assigning a 10 percent rating, both effective April 1, 2010. The ratings assigned for the radicular symptomatology are part and parcel of the rating assigned to DDD of the lumbosacral spine and are addressed in the Remand below. In a May 2012 rating decision, the RO assigned a 30 percent disability rating to dysthymic disorder with depressive features, effective September 24, 2010. Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned and the rating was not assigned during the entire appeal period. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Private treatment records The Veteran submitted a spiral bound notebook containing notations and copies of treatment records. It is not clear when the notebook was received as it was not date-stamped. In the notebook, several private medical providers are identified but there is no indication that the RO/AMC requested that the Veteran complete appropriate releases (VA Form 21-4142) pertaining to these medical providers. 38 C.F.R. § 3.159(c)(1) (2013). Social Security Administration (SSA) records In an October 2007 submission, the Veteran indicated that he had a claim pending for Social Security Disability benefits. It is not clear whether SSA benefits were awarded. The Veteran's SSA records should be requested and associated with the claims folder or Virtual VA. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c); see Murincsak v. Derwinski, 2 Vet. App. 363 (1992). VA outpatient treatment records A September 2010 VA mental health examination report reflects that the Veteran has undergone mental health treatment at the Jacksonville, Florida VA Medical Center (VAMC) from 2007 to the present. In a VA Form 21-4142 received from the Veteran, he reported seeking psychiatric treatment with a physician at the VA Northern Indiana Health Care System from January 1, 2011 to the present. In a submission from the Veteran received in August 2011, he reported that he was being treated for bipolar disorder. The evidence of record contains treatment records from the Gainesville, Florida VAMC dated from March 11, 2008 to August 10, 2010. Records from Jacksonville are essentially limited to 2008 to August 2009, and therefore appear incomplete. No records from the VA Northern Indiana Health Care System appear to be of record. Therefore, the entirety of the Veteran's treatment records from the Jacksonville VAMC and the VA Northern Indiana Health Care System must be associated with the claims folder or Virtual VA, and updated treatment records from the Gainesville VAMC dated from August 11, 2010 must be associated with the claims folder or Virtual VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). Increased ratings- VA examinations In September 2010, the Veteran underwent VA examinations to assess the severity of his migraines, DDD of the lumbosacral spine, duodenal ulcer and hiatal hernia, dysthymic disorder, and hypothyroidism. With regard to his dysthymic disorder, it is clear that he has continued to seek psychiatric treatment and he indicated that he is being treated for bipolar disorder. Likewise, it is clear that he has continued to seek medical treatment for his other disabilities. In light of the above, the Veteran should be afforded new examinations to assess the severity of his disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Asbestosis and sarcoidosis The Veteran asserts that he has a respiratory disability due to exposure to asbestos and other hazardous chemicals, such as jet fuel, oil, hydraulic fluid, methyl ethyle ketone, trichloroethylene, and beryllium. In March 2013, the Board requested an opinion from the Veterans Health Administration (VHA) with regard to the etiology of the Veteran's sarcoidosis, small airway disease, and COPD. In a May 2013 VHA opinion, the examiner indicated that the Veteran does not have evidence of asbestosis or asbestos related lung disease. The examiner also stated that the jet fuel, oil, hydraulic fluid, methyl ethyl ketone, and trichloroethylene would not cause lung disease. The examiner noted the Veteran's claimed exposure to beryllium, and indicated that a determination could not be made as to whether the Veteran has sarcoidosis or chronic beryllium disease (CBD). The examiner noted a diagnosis of sarcoidosis but it was unclear to him whether CBD was ever ruled out. The examiner explained that this is an extremely important issue due to the fact that if the Veteran has sarcoidosis then it is unlikely that his active duty and exposures contributed, but if he really has CBD then it would be more likely that his active duty and reported exposure to beryllium did indeed have a role. The examiner explained that histopathology of CBD is essentially identical to sarcoidosis as are the clinical features, radiographic features, and lung function features. Because of the significant similarities of these two diseases, some patients have been misdiagnosed with sarcoidosis based on the clinical and pathological findings until a history of beryllium exposure is identified, tested, and confirmed. The diagnosis of CBD is made when all of the following criteria are met: (1) a history of any beryllium exposure; (2) a positive blood or bronchoalveolar lavage (BAL) beryllium lymphocyte proliferation test (BeLPT); (3) noncaseating granulomas on lung biopsy. The examiner noted that the Veteran meets the criteria for (3). In light of the above, the Veteran should be afforded a VA examination with appropriate testing to determine whether he has CBD. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the period prior to April 1, 2010, the Veteran's service-connected disabilities do not meet the schedular requirements of § 4.16(a). As he fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also 38 C.F.R. § 3.321(b)(1) (providing for an extra-schedular disability when there is an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization). From April 1, 2010, the Veteran's service-connected disabilities do meet the schedular requirements of 38 C.F.R. § 4.16(a). While he does not have a service-connected disability rated 40 percent disabling, his DDD of the lumbar spine is rated 20 percent disabling, and his radiculopathy, right lower extremity, is rated 20 percent disabling, and his radiculopathy, left lower extremity is rated 10 percent disabling, effective April 1, 2010. For the purpose of a 40 percent disability in combination, disabilities resulting from common etiology will be considered as one disability. 38 C.F.R. § 4.16(a)(2). His radiculopathy is associated with his DDD of the lumbar spine, and these ratings combine to 42 percent. His overall combined rating is 90 percent from April 1, 2010. Thus, the schedular criteria per § 4.16(a) have been met from that date onward. In the May 2012 Supplemental Statement of the Case (SSOC), the AMC found that the Veteran's service-connected disabilities did not meet the schedular criteria per § 4.16(a) and that he was gainfully employed. However, the September 2010 VA examination reports of record reflect that the Veteran was employed as an Aviation Radar Teck and had been unemployed (not retired) between 2 to 5 years. On Remand, the Veteran should be requested to complete documentation pertaining to his employment and earnings since 2006. Once all outstanding medical evidence has been associated with the claims folders and the Veteran has been afforded VA examinations, the Veteran's claim for a TDIU should be readjudicated pursuant to § 4.16(b) for the period prior to April 1, 2010, and should be adjudicated pursuant to § 4.16(a) for the period from April 1, 2010. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he report his employment and earnings for the period since 2006, and that he complete appropriate releases (VA Form 21-4138) pertaining to the following private medical providers: (a) Dr. Rahul Kakkar; (b) Dr. Omar Figueroa, AN SV Office Spine and Brain; (c) Dr. J. Gary Evans; (d) Any other identified private medical providers. 2. Request the Veteran's SSA records and associate the records with the claims folder or Virtual VA. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 3. Associate the entirety of the Veteran's treatment records from the Jacksonville VAMC and VA Northern Indiana Health Care System, and obtain updated treatment records from the Gainesville VAMC for the period from August 11, 2010. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 4. AFTER all outstanding treatment records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to ascertain the severity of his migraine headaches. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests, should be accomplished if medically feasible. The examiner should indicate the frequency of any characteristic prostrating attacks, and whether he has prolonged attacks productive of severe economic inadaptability. The examiner should provide an opinion as to the impact the Veteran's migraine headaches have on his ability to work. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 5. AFTER all outstanding treatment records have been associated with the claims file, schedule the Veteran for an orthopedic examination to determine the severity of his lumbar spine disability. It is imperative that the claims file be made available to and reviewed by the examiner in connection with the examination. All clinical and special test findings should be clearly reported, and pertinent orthopedic and neurological findings should be reported. The examination of the spine should include range of motion studies. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination. The examiner should specifically state if ankylosis and muscle spasm are present. The examiner should also estimate any additional loss of function during periods of flare-up, expressed in degrees of lost motion. The examiner should report any specific information as to the frequency and duration of incapacitating episodes in the past 12 months, and a description of all neurologic manifestations, to include, but not limited to, radiating pain into an extremity, and bowel or bladder impairment. The examiner should opine whether the Veteran's service connected disabilities (DDD of the lumbar spine, radiculopathy of the bilateral lower extremities, migraines, duodenal ulcer and hiatal hernia, dysthymic disorder, and hypothyroidism, bilateral hearing loss, allergic rhinitis, maxillary sinusitis) in combination preclude gainful employment for which his education and occupational experience would otherwise qualify him, without consideration of any nonservice-connected disabilities. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 6. AFTER all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to assess the nature and severity of his left and right lower extremity radiculopathy. It is imperative that the claims file be made available to the examiner in connection with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should identify any neurological findings in the lower extremities related to the service-connected lumbar spine disability, and fully describe the extent and severity of those symptoms. The examiner should identify the specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of the nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). The examiner should also identify any muscular atrophy. The examiner should provide an opinion as to the impact the Veteran's bilateral radiculopathy has on his ability to work. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 7. AFTER all outstanding treatment records have been associated with the claims file, schedule the Veteran for VA examination to determine the current severity of his service-connected duodenal ulcer and hiatal hernia. The claims folder should be made available to the examiner(s) for review and all necessary testing should be conducted. All indicated studies and diagnostic testing should be performed. The examiner should specifically state whether any hernia is large or small, whether it is recurrent, well supported under ordinary conditions, readily reducible by truss or belt, an/or operable. The examination report should clearly address whether the veteran has recurrent epigastric distress with dysphagia; pyrosis; regurgitation; substernal or arm or shoulder pain; pain; vomiting; material weight loss; hematemesis; melena; anemia; or, any other symptom combinations productive of severe impairment of health. The examiner should provide an opinion as to the impact the Veteran's duodenal ulcer and hiatal hernia have on his ability to work. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 8. AFTER all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his service-connected hyperthyroidism. The claims file, to include a copy of this remand, must be reviewed by the examiner. All testing deemed necessary to diagnose current disability shall be undertaken. The examiner is requested to measure and record all subjective and objective symptomatology of the Veteran's hyperthyroidism, to include functional impairment. The examiner is requested to indicate whether any of the following are present (and attributable to the hyperthyroidism in this case): tachycardia, tremor, increased pulse pressure or blood pressure, emotional instability, fatigability, thyroid enlargement, eye involvement, muscular weakness, loss of weight, and/or symptoms of the sympathetic-nervous system, cardiovascular system or gastrointestinal system. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's disability, if any, on his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 9. AFTER all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA psychiatric examination with a psychologist or psychiatrist to determine the current severity of his service-connected dysthymic disorder. The examiner should be asked to comment on the severity of the Veteran's PTSD, and specify the degree of occupational or social impairment due to his service-connected PTSD. Examination findings should be reported to allow for evaluation of PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the examiner should specifically comment on any difficulty establishing and maintaining effective work and social relationships due to his PTSD. A GAF score and an analysis of its meaning should be provided. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 10. AFTER all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to undergo appropriate testing to assess whether he has chronic beryllium disease. All test results and an explanation of the test results should be associated with the claims folder. 11. After completion of the above, review the expanded record and readjudicate the claim of entitlement to service connection for bilateral knee disability; asbestosis; and, a respiratory disability, to include sarcoidosis, small airway disease, and COPD; entitlement to increased ratings for migraines; DDD of the lumbar spine; bilateral radiculopathy, lower extremities; duodenal ulcer and hiatal hernia; dysthymic disorder; and, hypothyroidism; and, entitlement to a TDIU pursuant to § 4.16(b) prior to April 1, 2010, and pursuant to § 4.16(a) from April 1, 2010. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have 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). _________________________________________________ ERIC S. LEBOFF 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).