Citation Nr: 1333585 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-19 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for chest pain and cardiac disease due to undiagnosed illness. 2. Entitlement to an increased evaluation for residuals of left biceps rupture with tenotomy, currently rated at 30 percent disabling. 3. Entitlement to an increased evaluation for status post greater tuberosity fracture, left upper extremity, rotator cuff tendonitis, currently rated at 30 percent disabling. 4. Entitlement to service connection for a left elbow disability, to include as due to the service-connected left biceps rupture with tenotomy. 5. Entitlement to service connection for short-term memory loss due to undiagnosed illness. 6. Entitlement to service connection for rash on body due to undiagnosed illness. 7. Entitlement to service connection for bilateral hearing loss. 8. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include adjustment disorder and mood disorder. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty with the Army Reserve from January 1993 to August 1993, and from December 2003 to December 2004, including service in the Southwest Asia theater of operations from February 2004 to June 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007, July 2007 and July 2008 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a December 2008 Decision Review Officer (DRO) hearing, and June 2010 hearing before the Board at the RO (Travel Board hearing) before the undersigned Acting Veterans Law Judge (AVLJ). Transcripts are of record. Relevant to the Travel Board proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U. S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the AVLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position. During the hearing, to this end, the presiding AVLJ noted the basis of the prior determination and the elements of the claims that were lacking to substantiate them. The presiding AVLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might help to substantiate the claims. Neither the Veteran nor his representative asserted during or since the hearing that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing. The hearing focused on the elements necessary to substantiate the claims and, consistent with Bryant, the presiding AVLJ complied with the duties set forth in section 3.103(c)(2). Apart from those issues listed above on the title page, there were several other claims previously on appeal, but now no longer before the Board. To this effect, a June 2008 RO rating decision granted service connection for a chronic disability of muscles of left side of the neck. The Veteran has not appealed from the initial rating or effective date, and hence this claim has been resolved. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Similarly, a June 2009 DRO rating decision granted service connection for tinnitus. Meanwhile, although the Veteran had perfected an appeal of the issues of entitlement to service connection for joint pain due to undiagnosed illness, and muscle pain due to undiagnosed illness, these issues were withdrawn from appeal at the June 2010 hearing. See 38 C.F.R. § 20.204 (2013). Upon initial consideration of this case in June 2011, the Board issued a grant of service connection for PTSD. This left for appellate consideration the remaining issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD. See e.g., Clemons v. Shinseki, 23 Vet. App. 1, 5 ( 2009) (holding that in light of the fact a claimant generally is not competent to provide a medical diagnosis, a claim for service connection for PTSD constituted a generalized claim for benefits based on a mental disorder where the evidence showed that the claimant did not have PTSD but suffered from a different mental disorder). The Board further deemed an informal claim for TDIU to be raised by the record, including the Veteran's recent hearing testimony, and assumed appellate jurisdiction of the issue of a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also VAOPGCPREC 6-96 (Aug. 16, 1996). The Board then remanded the remainder of the appeal including newly raised claims for service connection for a psychiatric disorder other than PTSD, and a TDIU, back to the RO (via the Appeals Management Center (AMC)) for specified evidentiary development. Thereafter, a November 2012 RO/AMC rating decision further granted claims then on appeal for service connection for obstructive sleep apnea, a lower back condition, and irritable bowel syndrome (IBS). The case is now back before the Board. In July 2013, additional evidence was received at the Board consisting of a VA Compensation and Pension examination report, and copies of VA outpatient records. As this evidence is essentially cumulative of that already on file, it is hereby accepted into the record without requirement of waiver of RO initial consideration (as the proper Agency of Original Jurisdiction (AOJ)). The Veteran and his representative have raised additional claims for: service connection for neurological complications of the left upper extremity (including decreased grip strength of the left hand) as secondary to a service-connected left shoulder disability; service connection for peripheral neuropathy of the lower extremities, secondary to a service-connected lumbar spine disability; and service connection for headaches as secondary to a service-connected cervical spine disability. The Board cannot adjudicate these claims until the RO does so in the first instance, and hence these matters are hereby referred to the RO for initial consideration. Presently, the Veteran's increased rating claims, claims for service connection for bilateral hearing loss and skin disorder, and TDIU claim are addressed in the REMAND portion of the decision below and are again REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. There is no cognizable diagnosed disability associated with the Veteran's manifestation of chest pain. 2. The Veteran does not currently have a short term memory loss disorder. 3. There is a muscle injury, affecting the left elbow region, associated with the in-service injury. 4. The Veteran has a mood disorder, NOS, originating due to and symptomatically indistinguishable from his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria are not met to establish service connection for chest pain and cardiac disease due to undiagnosed illness. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). 2. The criteria are not met to establish service connection for short-term memory loss due to undiagnosed illness. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). 3. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for a left elbow disability, muscle injury, as due to the service-connected left biceps rupture with tenotomy. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 4. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for a mood disorder, not otherwise specified, as due to service-connected PTSD. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Veteran The Veterans Claims Assistance Act of 2000 (VCAA), codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. The implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application, inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that he is expected to provide; and (3) that VA will obtain on his behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 C.F.R. § 3.159(b)(1) (2013). The Court has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As indicated below, the Board is granting the benefits sought on appeal of entitlement to service connection for a left elbow disorder, and a mood disorder. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of these matters, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). Regarding the remaining claims being decided herein, through VCAA notice correspondence dated in June 2006, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further advised the Veteran of the responsibilities for providing supporting evidence, and that VA and the Veteran had joint obligations to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The Veteran also received notice as to the downstream initial disability rating and effective date elements of his claims for service connection. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA correspondence in this case preceded issuance of the rating decision on appeal, and thus met the standard for timely notice. The RO/AMC has taken appropriate action to comply with the duty to assist the Veteran with his claim through obtaining extensive records of VA outpatient treatment, service treatment records (STRs) and service personnel records. The Veteran has further undergone several VA Compensation and Pension examinations in connection with his claims, to particularly include those evaluations relevant to his claimed manifestations of undiagnosed illness associated with Persian Gulf service. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Charles v. Principi, 16 Vet. App. 370 (2002). Pursuant to a prior Board remand directive, the RO/AMC has also taken appropriate measures to further assist the Veteran by ensuring that he underwent comprehensive VA examinations, obtaining updated VA treatment records, and obtaining records pertaining to the receipt of disability benefits from the Social Security Administration (SSA). Meanwhile, in furtherance of his claim, the Veteran has provided several personal statements, and various private treatment records. He testified at DRO and Travel Board hearings. There is no indication of any further relevant evidence or information that has not already been obtained. In sum, the record reflects that the facts pertinent to the claims being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Governing Law and Regulations Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). In addition to the foregoing, there is also presumptive service connection to consider, under which service connection is available for a claimed disability without competent evidence of a causal linkage back to an incident of military service. Pursuant to 38 U.S.C.A. § 1117, VA disability compensation is available to a Persian Gulf veteran with a qualifying chronic disability that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War; or, to a degree of 10 percent or more not later than December 31, 2016, and by history, physical, examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(2). The term "qualifying chronic disability" refers to a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower) (emphasis added), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, a "medically unexplained chronic multi symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). In addition, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). There is further available presumptive service connection for various infectious diseases associated with service in the Persian Gulf under certain circumstances. 38 C.F.R. § 3.317(c). Moreover, apart from direct service connection, a claim for service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. See 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). Background and Analysis Chest Pain and Cardiac Disease Service treatment history does not provide reference to any instances of chest pain, and/or a cardiac condition. The Veteran's pre-deployment questionnaire completed in January 2004 prior to his assignment to Kuwait (though apparently completed on a form labeled "post-deployment questionnaire") references his specific denial of chest pain or pressure. Post-service, a March 2005 private general practitioner's treatment summary indicates, in part, that the Veteran was concerned about some chest pain that occurred mid-axillary on the left side and extended to mid-clavicular on the left side below the nipple line. The area was not tender to palpation. He described it as sharp, somewhat shooting-type pain that improved with rest. He did get some shortness of breath initially when the pain came on. He was unsure if it was precipitated by activity. He had never had a cardiac workup. His cardiac risk factors were negative for diabetes, high blood pressure, and smoking. The relevant diagnostic assessment was of "chest discomfort, most likely related to chest wall discomfort, possibly an intercostal nerve." However, with his family history of cardiac disease, the Veteran was to be scheduled for a stress treadmill test with Cardiolite scan at his earliest convenience. A subsequent stress test was completed in March 2005, and the Cardiolite scan was normal and negative for induced ischemia. The Veteran was again noted to have infrequent chest pain that was chest wall pain below the left nipple area, lasting less than 10 seconds and a sharp shooting pain. The physician was unable to identify what precipitated this. The assessment was chest wall pain, use of anti-inflammatories encouraged, and of normal cardiac stress test. A June 2006 VA clinical record indicates a history of chest pain, but with a complete cardiac workup that was within normal limits. According to the evaluating physician, the condition was most likely complex pain syndrome following left shoulder surgery and brachial plexus blocks. Upon a December 2006 VA orthopedic examination, the VA examiner indicated in noting relevant medical history, that in 2005 when the Veteran was working as a locomotive engineer it was determined that he had "severe swelling of the left shoulder joint [the examination report says "right" shoulder, but all indication is it refers to the left shoulder] that extended in to the left neck and chest," and required the Veteran to give up his job. On VA Compensation and Pension examination of February 2012, the Veteran was found after physical examination to have no signs of cardiac disease. The March 2012 addendum to the VA Compensation and Pension examination one month earlier states that the Veteran's chest pain was less likely than not caused by injury that occurred during military service. The VA examiner indicated in this regard that the Veteran had a cardiac stress test in March 2005 that was negative, and his recent ECG was within normal limits. There also was no evidence of a current heart condition. Rather, his chest pain was better explained by his left shoulder and arm condition. In considering the foregoing, as to the claimed condition of chest pain and cardiac disease, under applicable law the Board is constrained to deny service connection. Whereas the Board does not materially doubt that the Veteran experiences chest pain, there is an essential precondition for recovery that a claimed disability involve tangible and objective physical impairment, and not reside under the spectrum of pain manifested, in and of itself. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Unfortunately, though chest pain has been found to exist, and has further been deemed by one or more medical evaluators to have originated secondarily from existing pathology of the left shoulder (as a type of referred pain), there is no definitive showing of a disability amenable to service connection under VA law. There would be reason to conclude otherwise if the Veteran had an underlying tangible condition, such as claimed cardiac disease, in this instance, which itself were shown to be related to service. In this instance, repeated medical testing and evaluation has shown the Veteran as fortunately being absent cardiac disease. As to the showing of chest pain alone, however, without attendant other disability, the criteria for service connection are not met. The Board also points out that the provisions of the undiagnosed illness statute under 38 U.S.C.A. § 1117, while clearly applicable here based on the Veteran's service in the Persian Gulf, nonetheless are a means of establishing etiology, and without an initial qualifying disability would not then independently provide a basis for recovery. For this reason, the Board is denying the claim for service connection for chest pain and cardiac disease. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Short Term Memory Loss On the Veteran's January 2004 in-service health questionnaire he denied having "difficulty remembering." In her April 2006 statement, the Veteran's spouse indicated that the Veteran was "forgetting things" lately, including some everyday type of things that were important to him. She recalled that he was such a punctual and task-oriented person when she first met him. In December 2008, the Veteran underwent a neuropsychological evaluation. It was observed in part that overall the Veteran evidenced intact performance across all neurocognitive domains with scores consistently in the average to very superior ranges. Moreover, he demonstrated clear strengths on a test of visual memory. No decay in memory was observed over time, indicating that the Veteran retained what he learned. The evaluating neurologist further reached the conclusion that there was no evidence of cognitive decline due to a mild acquired brain injury/concussion. Given the Veteran's essentially normal neuropsychological profile, his reported difficulties were most likely associated with psychiatric, multisite pain, and other situational factors. He likely demonstrated variable functioning based on the severity of his psychiatric and pain symptoms. It was observed on a December 2011 VA Compensation and Pension examination for mental disorders that the Veteran had subjective complaints of memory and concentration problems but objective evidence did not support impairment in these areas. The March 2012 VA Compensation and Pension examination addendum indicated that the Veteran's claimed short-term memory loss was less likely than not caused by injury that occurred during military service. According to the examiner, a neuropsychological assessment done in December 2008 showed no evidence of cognitive decline, with an essentially normal profile. Given this, the report of memory loss was most likely due to his psychiatric condition. The claim for service connection for memory loss, including as an undiagnosed illness, is being denied. Initially, there is some question as to whether the Veteran actually does manifest any type of tangible memory loss, particularly given the relatively normal December 2008 neuropsychological evaluation of record, and similar findings on a December 2011 VA examination for mental disorders. Under VA law, the first criterion to establish service connection is competent evidence of the current disability claimed. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."). The Board finds that memory loss of some kind does not appear to have manifested, the competent lay testimony to this effect notwithstanding, given that the objective findings and clinical testing results clearly rule against this condition. Nor for that matter does claimed memory loss appear to be a condition with its origin in military service. There was no reported memory loss incident during service, nor does the Veteran aver that he began experiencing lapses of memory in service. The primary alleged basis of recovery remains that of memory loss due to undiagnosed illness, again consistent with the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. To this effect, however, the extent of memory loss shown has been attributed by the March 2012 VA examiner to the Veteran's already service-connected psychiatric condition of PTSD (this being prior to the decision later below granting service connection for a mood disorder), which thereby brings the condition within the ambit of a known clinical diagnosis, and out of the purview of that which would comprise an undiagnosed illness, subject to compensation under 38 U.S.C.A. § 1117. In any event, the primary basis for consideration of this claim and its denial is that the Veteran does not manifest a memory loss disorder. Reviewing the report of the March 2012 VA examiner in context, he does not at any point identify a distinct and compensable memory loss disorder, and his ostensibly ascribing "the report" of memory loss to a psychiatric condition does not so much state a basis for secondary service connection, as merely attempt to explain why the Veteran would have claimed memory loss in the first place. Moreover, the Board emphasizes at this point that any future demonstration of memory loss that might be proven is inherently covered in the rating criteria found at 38 C.F.R. § 4.130 for evaluation of service-connected mental disorders, and therefore can receive appropriate consideration and compensation under those rating provisions. Accordingly, the claim for service connection for memory loss is denied. Since the preponderance of the evidence is unfavorable, the benefit-of-the-doubt doctrine does not apply. Left Elbow Disorder The Veteran's STRs recount in detail the occurrence of and subsequent treatment for a left shoulder injury pursuant to a fall, along with biceps tendon rupture. There are no references therein to symptoms of or treatment for a specific disorder involving the left elbow, as associated with the original injury. The Veteran currently has two distinct service-connected disabilities arising out of this in-service injury, those of service-connected residuals, left biceps rupture, status post left biceps tenotomy; and status post great trochanteric fracture, left upper extremity, rotator cuff tendonitis. A November 2005 VA outpatient treatment record indicates on evaluation of the residuals of an in-service left shoulder injury, the Veteran's report, in part, of pain in his left elbow, and complaint that if he palpated his left elbow he would have shooting pain into the left fourth and fifth fingers and into his left chest. A contemporaneous orthopedic consult indicated definitive weakness with elbow flexion, amongst other motions of the left upper extremity, all being 3+/5 strength level. Meanwhile, a December 2005 EMG study showed an impression of no significant peripheral nerve or radicular pathology in the left arm. A June 2006 clinical record denotes tenderness of the medial elbow as the ulnar nerve crossed. On further evaluation in October 2006, it was observed that though there were symptoms in the ulnar nerve distribution, the Veteran had no evidence of ulnar neuropathy by recent EMG, and that the symptoms were typical for thoracic outlet syndrome. Post-service, the Veteran underwent a December 2006 VA Compensation and Pension examination of the joints. It was objectively noted, in relevant part, that in the case of lateral abduction of the left arm, the Veteran felt a pain in the ulnar nerve distribution in the left arm and hand. Physical examination of the elbow on the left side reveals tenderness at the palpable ulnar nerve and ulnar nerve groove. There was no swelling or other tenderness. The left elbow flexes to 108 degrees, with normal flexion of the elbow being to 145 degrees. The strength and flexion/extension of the left elbow was believed to be reduced by 60 percent and further reduced by repetitive motion, but there was no change in actual range of motion with repetitive motion of the left elbow. There was considered to be muscle injury to muscle groups 1, 2, 3, 4, and 5, the last of which comprised the flexor muscles of the elbow, and included the biceps, which had been removed. The overall diagnosis was "status post arthroscopic surgery of left shoulder with posttraumatic left shoulder changes suggesting subacromial bursitis, tear of the supraspinatus muscle, anterior glenoid labrum tear, and infraspinatus tear. ...Associated with the left shoulder problem is muscle atrophy and weakness of the left shoulder muscles and posterior thigh muscles." There was no specific mention of a distinct left elbow diagnosis. A November 2008 VA outpatient clinical record indicates, in part, left arm with decreased superficial reflexes at radial wrist and left elbow. A July 2009 private EMG study indicated mild electrodiagnostic evidence of a left lateral antebrachial cutaneous neuropathy. The report of a February 2012 VA Compensation and Pension examination confirms the existence of muscle injury to Muscle Groups I through V, involving the left upper extremity. Otherwise, regarding the left elbow there was no degenerative or traumatic arthritis documented, and no other significant diagnostic test findings and/or results. Also noted was that the Veteran did have a remote history of left elbow strain during service. When stationed at Fort Gordon he developed a "popping" sound during push-ups. He also now had numbness of his left fourth and fifth fingers with pressure on the medial aspect of his left elbow. He continued to have crepitance of his left elbow, and neurological symptoms of the left fourth and fifth fingers. In a March 2012 addendum, the VA examiner indicated that left elbow strain was less likely than not caused by injury that occurred during military service. According to the examiner, although an EMG done in 2009 showed left ulnar nerve slowing, there were no current left elbow symptoms either in the medical record or reported by the Veteran. Based on the Veteran's medical history, his left elbow symptoms appeared to have been caused by left elbow strain, which had resolved. There was no evidence of chronic joint disease on either physical exam or radiographs. Rather, numbness of his left fourth and fifth fingers was most likely due to mild left carpal tunnel syndrome that developed during service in the Army Reserve. Based on the above, and with due application of VA's duty to resolve reasonable doubt in the claimant's favor where appropriate on a material issue, the Board will grant service connection for a muscle injury, congruent with the left elbow region. The record sufficiently demonstrates that there is a wide-ranging muscle injury that includes Muscle Group V (flexor muscles of the elbow), with attendant muscle weakness and functional loss. The preponderance of the evidence also indicates that this condition originated secondarily to the existing service-connected left shoulder/biceps injury. Hence, the evidence substantiates a grant of service connection on a secondary basis for muscle injury, involving the left elbow region. Acquired Psychiatric Disorder other than PTSD From review of STRs, the report of a January 2003 psychiatric evaluation indicates that the Veteran allegedly had a history of multiple emotional problems, though he certainly did not seem to have many at that particular time. According to the psychiatrist, the Veteran did have a marital problem because his wife wanted a divorce because of his vocation, but he was handling this in a "very mature, productive manner." The diagnosis was of a marital conflict. On an April 2003 entrance examination (prior to the Veteran's second period of active duty service), in the examiner's view there was "dominant immaturity displayed" possibly associated with stress from an unstable marriage, in which he had filed for separation. Thereafter, on a January 2004 questionnaire, the Veteran denied mental health symptoms such as nightmares, numbness and detachment from surroundings, and feeling down, depressed or hopeless. Also he denied that during the deployment he had sought, or intended to seek, mental health counseling or care. Post-service, a July 2006 VA clinical record of psychiatric treatment indicated a diagnosis of adjustment disorder, with mixed anxiety/depression. The Veteran at that time declined mental health treatment, and preferred to manage symptoms through non-pharmacologic means. On VA outpatient mental health psychological evaluation from May 2007, the diagnosis given was PTSD. A more in-depth psychological evaluation that month indicated a diagnosis of PTSD; and mood disorder, not otherwise specified, probably bipolar. A December 2007 clinical record observed that psychiatric distress continued, although he denied a referral to the mental health center. The assessment was in part, adjustment disorder continues. In January 2008 the diagnosis was revised to one of a mood disorder. Thereafter, in July 2011 the Veteran received a diagnosis of major depressive disorder, single episode, moderate without features of psychosis. His symptomatology at that time was associated with stressful life events connected to a marital conflict. The Veteran underwent a December 2011 VA Compensation and Pension examination for mental disorders, pursuant to which the diagnosis was PTSD and mood disorder, not otherwise specified (NOS). Pursuant to this evaluation, it was opined at the outset that "the Veteran's mood disorder NOS likely developed as a response to living with PTSD and the two conditions are too related to be reliably separated." The Board resolves reasonable doubt in the Veteran's favor in finding that his diagnosed mood disorder, NOS, originated secondarily to his already service-connected PTSD, based on the findings elucidated by the December 2011 VA examiner. Whereas there is minimal basis to associate the claimed condition with an incident of military service, the fact remains that service connection on a secondary basis is demonstrated. The December 2011 VA examiner specifically found that service-connected PTSD and mood disorder, NOS, were indistinguishable as to symptomatology, under which circumstances, the symptoms of the latter must be deemed as fully compensable manifestations of the former. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (where it is not possible to separate the effects of a service-connected disability from any nonservice-connected conditions by competent opinion, all symptoms must be attributed to the service-connected disability). See also, Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). The examiner further contended that mood disorder, NOS likely developed as a response to living with PTSD. The criteria are therefore met for service connection on a secondary basis. ORDER Service connection for chest pain and cardiac disease due to undiagnosed illness is denied. Service connection for short-term memory loss due to undiagnosed illness is denied. Service connection for a left elbow muscle injury, as due to the service-connected left biceps rupture with tenotomy, is granted. Service connection for a mood disorder, not otherwise specified, as secondary to PTSD, is granted. REMAND The Board in its prior June 2011 remand directed that the claims for increased evaluation for residuals of left biceps rupture, and status post left shoulder fracture undergo referral to the VA, Director Compensation and Pension Service for consideration of a potential extraschedular rating under 38 C.F.R. § 3.321(b)(1). The RO/AMC has not yet complied with this directive, and another remand for this purposes is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). Another VA medical examination and opinion is also necessary to ascertain the likely etiology of the Veteran's bilateral hearing loss. While prior VA audiologists' opinions ruled out a causal nexus to service, none of these opining treatment providers appear to have considered the evidence beyond what service records expressly do or do not state, particularly, the Veteran's own lay assertions of noise exposure despite lack of documentation as of yet. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). See also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). Similarly, the opinion provided regarding the Veteran's claimed skin disorder indicated that the skin rash the Veteran had was attributed to known diagnoses of tinea, drug reaction, and acne, but the examiner did not provide any rationale for why the diagnosed skin conditions (particularly the tinea and acne) were not related to the Veteran's military service. The examiner also did not address the Veteran's competent complaints of having skin rashes since military service. For this reason, another opinion is warranted with respect to the Veteran's service connection claim for skin rash. Moreover, the remaining claims on appeal are "inextricably intertwined" with the issue of a TDIU, and the disposition of the TDIU claim must therefore be deferred pending resolving these preliminary matters. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). See also Parker v. Brown, 7 Vet. App. 116 (1994). Accordingly, these claims are REMANDED for the following action: 1. Request from the VA Eastern Kansas Healthcare System (HCS) all treatment records for the Veteran, dated since June 2012. Then associate all paper records obtained with the claims file, or in the alternative associate an electronic copy of these records with the Veteran's "Virtual VA" claims folder. 2. Request any updated decision that has been made by SSA (as of 2011, the decision was still pending) and associate the decision with the claims file. 3. Thereafter, schedule the Veteran for a VA examination with an audiologist. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that bilateral hearing loss is etiologically related to military service, to specifically include consideration of the Veteran's own averred history of in-service noise exposure, as well as the documented in-service medical history. The VA examiner is also requested to consider in this regard the prior observation of the April 2009 VA audiological examiner that identified exposure to high risk noise in service (though not ultimately factoring this into an etiology determination). The VA examiner must provide a complete and thorough rationale for all conclusions reached. 4. Schedule the Veteran for a VA dermatology examination. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current skin disorder to include tinea and/or acne is etiologically related to any disease, injury, or event during military service, or whether it first manifested during service. The examiner is requested to consider the Veteran's competent complaints of a skin rash since his military service. The VA examiner must provide a complete and thorough rationale for all conclusions reached. 5. Refer the Veteran's claims for increased ratings for residuals of left biceps rupture, and status post left shoulder fracture to the VA, Director Compensation and Pension Service regarding consideration for an extraschedular rating under 38 C.F.R. § 3.321(b)(1). 6. Thereafter, schedule the Veteran for another VA general medical examination in regard to his TDIU claim. The claims folder must be made available for the examiner to review. The examiner is then requested to provide an opinion as to whether the Veteran is incapable of securing and maintaining substantially gainful employment due to the severity of his service-connected disabilities (including the recently granted service-connected disabilities of obstructive sleep apnea, lumbar disc herniation, and IBS). In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected physical or mental condition. The requested opinion must also take into consideration the relevant employment history and educational history, or lack thereof. Please note consideration of the March 2012 VA medical opinion already on file addressing the subject of employability. If an opinion cannot be rendered without resorting to pure speculation, please explain why this is not possible. 7. Then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall, supra. 8. Thereafter, readjudicate the claims for increased evaluation for residuals of left biceps rupture with tenotomy; increased evaluation for status post greater tuberosity fracture, left upper extremity, rotator cuff tendonitis; service connection for bilateral hearing loss; and a TDIU, based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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. 2013). ______________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs