Citation Nr: 1335265 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 03-18 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a skin disorder, other than chloracne. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disability. 3. Entitlement to service connection for hepatitis C. 4. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 5. Entitlement to an increased rating for a bilateral hydrocele, currently evaluated as 10 percent disabling since February 7, 2012, and evaluated as noncompensable prior to February 7, 2012. 6. Entitlement to an increased rating for back scarring, currently evaluated as 30 percent disabling since June 8, 2009, and evaluated as noncompensable prior to June 8, 2009. 7. Entitlement to an increased rating for chloracne, currently evaluated as 10 percent disabling. 8. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had military service from June 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. By way of history, the Veteran's claim for whether new and material evidence was received to reopen a claim of service connection for a skin disorder other than chloracne, as well as the claims for service connection for hepatitis C and for hypertension were remanded in an October 2006 Board decision. A subsequent October 2008 Board decision denied the claims. The Veteran appealed the Board's October 2008 decision to the U.S. Court of Appeals for Veterans Claims (Court). In an Order dated October 2012, the Court remanded the claims in keeping with a joint motion of the parties. In January 2013, the Board remanded the above claims as well as additional claims in appellate status for increased ratings for PTSD, for bilateral hydrocele, for back scarring, and for chloracne. It also remanded a claim for a TDIU. The Board otherwise denied a claim for an effective date earlier than February 16, 2001, for the grant of service connection for chloracne. It August 2013, the RO issued a supplemental statement of the case (SSOC) and thereafter returned the Veteran's appeal to the Board for further appellate review. With regard to the above, an issue presented on appeal to the Board in January 2013 was "Entitlement to a compensable rating for back scarring." In an August 2013 rating decision, the RO granted service connection for "painful scars on back" and awarded a 30 percent disability rating effective June 8, 2009. In the later issued August 2013 SSOC, the RO listed the issue on appeal as "compensable rating for back scarring." It found an increased rating was not warranted. It also noted that while the Veteran's scars had been identified as painful on the most recent VA examination, that aspect of the disability had been addressed in a separate rating. Notwithstanding the RO's most recent characterization of the Veteran's claim into separate issues, the Board notes that a higher rating for back scars remains a single issue in appellate status, based on the assignments of a noncompensable rating and a 30 percent rating during the appeal period. As such, the Board has recharacterized the issue, as is noted on the title page, above. Finally, the Board notes, as was previously noted in January 2013, that the Veteran's attorney withdrew his representation in May 2011. There is no valid VA Form 21-22 contained in the Veteran's claims file. Thus, the Veteran continues to remain unrepresented in the matters currently before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). As noted in the Board's January 2013 remand discussion, VA treatment records obtained through the CAPRI system, dating from December 2008 to October 2012, were added to the Veteran's virtual file in October 2012. These records were considered in an October 2012 statement of the case. As noted by the Board, the virtual file identified as containing the VA records instead contained a document with language from the RO rating adjudication. The records were not otherwise located in the virtual file system or in the paper claims folders. The Board's January 2013 remand discussion also noted that the October 2012 Joint Remand by the parties had questioned whether the most recent VA treatment records were associated with the claims folders, specifically records dated from June 2003. The Board's review of the claims folders reflects the Veteran's Social Security Administration (SSA) records include VA records dated to July 2004. Furthermore, apparently associated with the report of July 2009 VA PTSD examination are two VA outpatient psychiatric clinic records dated in June 2009 and July 2009. In its January 2013 remand instructions, the Board requested that the RO, "[o]btain and associated with the (virtual) claims file all VA treatment records dating from June 2003 which have not already been associated." The Board's review of the most recent SSOC dated in August 2013 reflects a reference to "[t]reatment records VAMC Chicago from February 2000 through July 2013 not previously associated with the claims file" as having been reviewed. The Board's review of the Veteran's Virtual VA electronic file, with regard to CAPRI records, reflects only the July 2013 PTSD DBQ as well as VA records dated from October 22, 2012 to June 12, 2013. Otherwise, as noted previously, the electronic file identified as containing CAPRI records dated from December 15, 2008 to October 10, 2012, actually contains a document with language from the RO rating adjudication. A review of the paper claims folders also does not contain any records dated from July 2004 to December 2008 (other than those records, noted above, dated in June 2009 and July 2009). Furthermore, there is no indication that the RO has attempted to obtain any VA records dated from July 2004 to December 2008. As such, a remand of the claims on appeal is necessary to allow for the association of the identified VA treatment records from CAPRI with the claims folders. In doing so, the RO should also conduct a search for all VA treatment records dated from July 2004 to December 2008. If a search does not reveal any VA treatment records during this period, a notation documenting this fact must be associated with the claims folders. The Board also notes that in its January 2013 remand instructions it requested that the RO schedule the Veteran for a VA examination by a specialist in liver disorders or a specialist in the field of infectious disease in order to determine the likely etiology of the Veteran's hepatitis C. In a July 2013 VA DBQ, a VA opinion was provided which was unfavorable to the Veteran's claim. The opinion was provided by an internal medicine physician and not a specialist in liver disorders or infectious diseases. In this case, the Board had requested a specialist opinion given the nature of the disease process associated with hepatitis C, and that a physician with medical expertise in livers disorders and/or infectious diseases would be better qualified to opine on the etiology of the Veteran's hepatitis C. Therefore, while the July 2013 opinion regarding the etiology of the Veteran's hepatitis C is adequate on its face, nonetheless, and in keeping with the Board's remand instructions, the Veteran should be scheduled for an additional VA examination, conducted by a specialist in liver disorders or infectious diseases, for the purposes of determining the etiology of the Veteran's hepatitis C and whether it is due to his active service. Additionally, the Veteran underwent a VA examination pertaining to his claim for service connection for hypertension. The examiner was requested to comment on whether the Veteran's hypertension was caused or aggravated by the service-connected PTSD. In a July 2013 VA disability benefits questionnaire (DBQ), the examiner commented that the Veteran's hypertension was not related to service in light of its onset 25 years after service, not related to PTSD as the disorder was not a cause for chronic sustained hypertension, nor was there other clinical evidence implicating PTSD as a causal agent. Thus, it was less likely that the Veteran's PTSD caused the Veteran's hypertension. Unfortunately, the examiner's opinion does not address whether the Veteran's PTSD aggravates his hypertension. While the examiner may have intended to convey this fact in his opinion, unfortunately, such a finding is not clearly stated. As such, remand is necessary for the examiner to address this question through an addendum opinion. Finally, with regard to the issue of TDIU, in a July 2013 VA PTSD DBQ, the examiner commented that from a mental health perspective, the Veteran could perform sedentary desk work. In this regard, the examiner noted that while symptoms of PTSD would make it difficult for the Veteran to work in a traditional full-time position, they did not render him incapable of all or even most employment. The Board notes that 38 C.F.R. § 4.16 does not require VA to identify a specific job that the veteran is qualified to perform, is available in the national or local economy, and/or exceeds the poverty threshold, in denying entitlement to a TDIU. See Smith v. Shinseki, 647 F.3d 1380, 1384 (Fed. Cir. 2011). Furthermore, medical examinations alone are sufficient to resolve the question of whether a veteran is entitled to a TDIU. See Id at 1382. Nonetheless, in making an employability determination, the examiner must consider and discuss the Veteran's level of education, other training, work experience, along with the disabling affects of, in this case, the Veteran's service-connected PTSD, on his ability to obtain or maintain substantially gainful employment. In this case, the Board notes that the July 2013 examiner's opinion does not answer the question of whether the Veteran is educationally and vocationally qualified to perform sedentary employment. See Weatherly v. Shinseki, U.S. Vet. App. No. 12-475 (March 27, 2013). (While the Board recognizes that a single-judge decision, such as Weatherly, carries no precedential weight, such a decision may be relied upon for any persuasiveness or reasoning it contains. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992).) Here, the record on appeal reflects that the Veteran reportedly did work at one time for the Chicago Transit Authority and that he has two years of college, as reported in the Veteran's VA Form 21-8940. The Veteran also has reported some part-time GED (general education diploma) tutoring from 1991 to 1996. Otherwise, with regard to the claim for a TDIU, in an application for unemployability (VA Form 21-8940), received in October 2008, the Veteran alleged that he was unemployable not only to his PTSD but also to his service-connected chloracne and to his service-connected tinnitus. In an August 2011 letter jointly signed by a VA attending psychiatrist and a VA licensed clinical social worker, the Veteran was noted as being unable to engage in substantially gainful employment and was found unemployable due to his service-connected disabilities. Later, in a February 2012 VA DBQ, an examiner commented that none of the non-psychiatric service-connected disabilities would prevent the Veteran from performing any sedentary work. The examiner noted that the opinion was ". . . made without regard to [the Veteran's] age or current employment status and with knowledge of his education and work history." Therefore, in light of the above, the claims folders should be referred back to the examiner, Dr. T. S, PsyD. for an addendum medical opinion prior to the Board's adjudication of the Veteran's claim for a TDIU. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folders VA treatment records dated from December 15, 2008 through October 10, 2012, as were identified and reviewed per the October 17, 2012 SOC. (A document with language from an RO adjudication is currently contained in the electronic (Virtual VA) file identified as containing the noted VA records.) 2. Associate with the claims folders all VA treatment records dated from July 2004 to December 2008. If a search does not locate any VA treatment records for this period, a notation documenting this fact must be associated with the claims folders. 3. After completion of the above (and allowing a reasonable amount of time to obtain any identified records), obtain a VA medical opinion from a specialist in liver disorders or infectious diseases in order to determine the likely etiology of the Veteran's hepatitis C. Known risk factors include an in-service tattoo, as well as reports by the Veteran of unprotected sex during service. (The examiner should also consider the Veteran's reported history, noted in a July 29, 2002 VA sexual dysfunction clinic note, of having unprotected sex with women every three to four months; a September 12, 2002 VA gastroenterology outpatient note in which the clinician noted that the Veteran's hepatitis C was probably the result of contact with human blood in Vietnam; and a July 2013 VA DBQ (disability benefits questionnaire), in which the clinician concluded that the Veteran's hepatitis C was not related to active service.) Following an examination of the Veteran and review of the pertinent medical evidence, the examiner should offer his/her opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), that the Veteran's hepatitis C had its clinical onset during service or is otherwise related to service. The examiner's report must include a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a thorough explanation as to why this is so. 4. Refer the claims folders back to the July 2013 VA examiners who provided the medical opinions pertaining to the Veteran's claims for service connection for hypertension and for PTSD/TDIU. The examiners should offer addendum medical opinions based on a thorough review of the evidence of record. A copy of this remand must be made available to the examiners for review in connection with the requested addendum opinions. A notation should be made in the examiner's report that the claims folders and a copy of the Board's remand were available for review. Hypertension The examiner should review his July 2013 VA DBQ, along with the other evidence of record, and opine as to whether the Veteran's hypertension is aggravated (permanent worsening of the underlying disability beyond natural progress) by his service-connected PTSD. If so, then the examiner should quantify the degree of such aggravation, if possible. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a thorough explanation as to why this is so. If the July 2013 VA examiner is not available to provide the addendum opinion, make arrangements for the claims folders to be reviewed by another examiner who should be requested to supply the opinion. (If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an examination and the necessary opinion requested.) Posttraumatic Stress Disorder/TDIU The examiner should review the claims folders, in particular, her report of July 2013 PTSD DBQ, the report of July 2009 VA PTSD examination, as well as an August 2011 letter jointly signed by a VA attending psychiatrist and a VA licensed clinical social worker attesting to the Veteran's unemployability (See tabbed document in volume #6 of the claims folders). The examiner should again provide an opinion regarding the Veteran's employability due to his service-connected PTSD. In making the requested employability determination, the examiner must consider and discuss the Veteran's level of education, other training, work experience, and the disabling affects of his service-connected PTSD on his ability to obtain or maintain substantially gainful employment, in particular, as noted by the examiner, gainful sedentary employment. (The record on appeal reflects that the Veteran reportedly did work at one time for the Chicago Transit Authority and that he also conducted part-time GED tutoring from 1991 to 1996. Also, the Veteran's VA application for unemployability (VA Form 21-8940), dated in October 2008, notes that the Veteran had two years of college.) The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. If the examiner cannot provide an opinion without resort to speculation, he or she must provide a thorough explanation as to why this is so. If the July 2013 VA examiner is not available to provide the addendum opinion, make arrangements for the claims folders to be reviewed by another examiner who should be requested to supply the opinion. (If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an examination and the necessary opinion requested.) 5. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the claims on appeal. If the benefit sought is denied, the Veteran must be provided an SSOC and given an 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 matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ J. A. MARKEY 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).