Citation Nr: 1335308 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-46 519A ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include asthma, upper respiratory infection, and acute respiratory disease, to include as due to exposure to asbestos and tear gas. 2. Entitlement to service connection for a sinus disability. 3. Entitlement to service connection for degenerative disc disease of the lumbar spine, to include on a secondary basis. 4. Entitlement to service connection for lumbar radiculopathy, claimed as a bilateral leg disability, to include on a secondary basis. 5. Entitlement to service connection for postoperative residuals of a cervical spine injury, status post fusion, to include on a secondary basis. 6. Entitlement to service connection for a disability involving the left arm and shoulder, to include on a secondary basis.. 7. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 8. Entitlement to service connection for bilateral third degree pes planus. 9. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). 10. Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Kenneth Lavan, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to March 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the VA RO in Cleveland, Ohio, that denied the first 9 issues listed on the cover page. In December 2007, a notice of disagreement (NOD) was filed with the denial of these claims. A statement of the case (SOC) was issued by the Atlanta, Georgia, RO (all subsequent references to the "RO" are to the Atlanta RO) with respect to the first 8 issues listed on the cover page in late September 2009. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in early December 2009 that was timely filed with consideration of the "mailbox rule" codified at 38 C.F.R. § 20.305 (2013). The Veteran was afforded a hearing at the RO before a Decision Review Officer in February 2008, and a transcript of this hearing is of record. In January 2013, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C.A. § 7107(e) (West 2002). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. A transcript of this hearing is contained in the electronic (Virtual VA) folder, and a copy of this transcript has been associated with the paper claims file. The undersigned directed that the record be held open for 60 days following this hearing for the submission of additional evidence, and the paper claims file reflects receipt of additional evidence in May 2013. With respect to the claim for service connection for an acquired psychiatric disability, the United States Court of Appeals for Veterans Claims has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given the fact that the Veteran claimed entitlement to service connection PTSD in his December 2007 NOD and in light of the holding in Clemons, the Board has recharacterized (as reflected on the cover page) the originally filed claim with respect to service connection more broadly, to include a consideration of service connection for PTSD or any other acquired psychiatric disorder to allow for the most liberal interpretation of the Veteran's claim. See Kowalski v. Nicholson, 19 Vet. App. 171, 180 (2005), Sondel v. Brown, 6 Vet. App. 218, 220 (1994); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993) (Board is obligated to review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal, including all documents or oral testimony submitted prior to the Board decision.) As for the issue of entitlement to service connection for bilateral pes planus, this claim was previously denied in an unappealed October 1981 rating decision. However, this rating decision did not have the benefit of all the service treatment reports (STRs). Subsequent to that time, additional STRs have been received, to include the reports from the December 1975 service entrance examination that did not reveal pes planus or any other foot disability, the relevance of this fact to be explained below. As such, rather than determining whether new and material evidence has been received since the October 1981 rating decision, this issue (listed accordingly on the cover page) must be reconsidered, to include deciding whether a retroactive grant of service connection may be assigned from the date of the filing of the original claim for service connection for pes planus, based on a de novo review of the entirety of the evidence of record. 38 C.F.R. § 3.156(c) (2013). For reasons expressed below, the matters on appeal are being remanded to the RO for further action. VA will notify the Veteran when further action, on his part, is required. REMAND Based on a review of the claims file and the contentions of record, the Board finds that further RO action on the claims listed on the cover page is warranted. As a preliminary matter, the record reflects the receipt of additional VA and private clinical records since the September 2009 SOC that has not been addressed in a supplemental SOC (SSOC). As such, while the Veteran's attorney in January 2013 submitted a waiver of RO consideration of all evidence receive "after issuance of the Statement of the Case or Supplemental Statement of the Case," it is not clear, given the fact that an SSOC has not been completed addressing any of the evidence received since the September 2009 SOC, whether this waiver is operative, or what the scope of this waiver consists of. In any event, given the necessary development discussed below, this remand will afford the RO the opportunity to conduct the initial consideration of the evidence received since the September 2009 SOC so as to ensure that the Veteran has not been prejudiced or denied due process in the consideration of his appeal. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). First with respect to the claim for service connection for bilateral pes planus, while this claim has been denied by the RO on the basis that this condition was not aggravated by service, it has not done so on the basis of the proper standard of review. In particular, the presumption of soundness is applicable to this claim due to the fact that the December 1975 entrance examination of the feet was negative, and to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that (1) the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003) (emphasis added). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 Fed. Cir. 2004). This rebuttal standard has not been considered by the RO. Moreover, a VA examination to determine if the Veteran's bilateral pes planus was incurred in or aggravated by service, as requested by the Veteran's attorney in his January 2013 brief, has not been afforded the Veteran. Given the contentions and relevant evidence as set forth above, the Board finds that a VA examination and opinion-with consideration of the rebuttal standard with respect to claims based on aggravation of disabilities not shown at entrance to service-addressing the claim for service connection for bilateral pes planus is necessary in this case in order to fulfill the duty to assist the Veteran. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claims for service connection for the claimed lumbar and cervical spine disabilities and disability involving the left arm and shoulder, the Board interprets the Veteran's contentions with respect to these matters to be that his lumbar spine disabilities are the result of pes planus; that his cervical spine disability is either the result of pes planus or lumbar spine disability; and that the left arm and shoulder disabilities are the result of either pes planus or cervical spine disability (the Board does not view the Veteran as contending that a psychiatric disability is warranted on a secondary basis but instead is the result of alleged unfair treatment by his chain of command with respect to how his visits to sick call during service were evaluated.) In short, as these claims are dependent on the resolution of the claim for service connection for bilateral pes planus, the adjudication of these claims must be deferred pending the completion of the development and adjudication requested herein with respect to the claim for service connection for bilateral pes planus. Harris v Derwinski, 1 Vet. App. 80 (1991). This will also afford the RO the opportunity to afford the Veteran VA examinations with respect to these claims. Turning to the claim for service connection for a psychiatric disability, the July 2007 notification letter did not provide the Veteran with the particular notice required for claims for service connection for PTSD, nor has he otherwise been provided such notice. The matter of entitlement to service connection for PTSD has also not been formally adjudicated by the RO (as relevant to this matter, the list of evidence set forth in the July 2013 rating decision contained in the Virtual VA Folder makes reference to December 23, 2009, "Memorandum of Formal Finding on a Lack of Information Required to Verify Stressors in Connection to a Post Traumatic Stress Disorder Claim" but this memorandum is not physically of record or contained in the Virtual VA Folder). As such, upon remand, the RO will be directed to provide the Veteran with the proper notice required for claims for service connection for PTSD and formally adjudicate this issue. Addressing the claim for service connection for a respiratory disability, claimed in part as due to exposure to asbestos and tear gas, at the outset, the Board points out that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA's Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006). A July 2007 notification letter reflects some consideration of these instructions, to include requesting that the Veteran provide details as to exposure to asbestos during service and the nature of his work prior to and after service, with no specific information received from the Veteran in response. However, this letter (due to no fault of the RO as the Veteran only clarified in a statement received after this letter in August 2007 that he was claiming in-service exposure to tear gas, and not mustard gas) requested that the Veteran supply information as to alleged exposure to mustard gas, rather than tear gas, during service. In addition to the above theories of entitlement to service connection, it has been asserted by the Veteran's attorneys, to include in a January 2013 brief and statements to the undersigned at the January 2013 hearing, that current respiratory disability, to include sinusitis, is etiologically related to an in-service illness in January 1976 in which the Veteran attained a fever of 104 degrees and was diagnosed with acute respiratory disease. The Veteran has not been afforded a VA examination in connection with the claims for service connection for a respiratory disability, including sinusitis, and the Veteran's attorney requested such an examination in his January 2013 brief. Given the contentions and relevant evidence as set forth above, the Board finds that a VA examination and opinion-with consideration of the in-service illness describe above and claimed exposure to asbestos and tear gas-addressing the claims for service connection for a respiratory disability and sinusitis is necessary in this case in order to fulfill the duty to assist the Veteran. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon, supra. This remand will also afford the RO the opportunity to provide the Veteran with the proper notice with respect to the alleged in-service exposure to tear gas, and ensure that all the instructions with respect to claims for service connection based on exposure to asbestos contained in VA's Adjudication Procedure Manual are complied with. Finally with respect to the issues of entitlement to TDIU and service connection for erectile dysfunction, a timely NOD, as set forth above, was filed with respect to the denial of TDIU in December 2007 following the November 2007 rating decision that denied this claim, and following a July 2013 rating decision (contained in the Virtual VA Folder) that denied service connected for erectile dysfunction, a timely NOD was received with respect to this decision from the Veteran's attorney on his behalf in July 2013. However, to date, the RO has not yet issued an SOC with respect to the claims for TDIU or service connection for erectile dysfunction, the next step in the appellate process. See 38 C.F.R. § 19.29 (2013); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, these matters must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of these issues that are not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200 , 20.201, 20.202 (2013). Prior to arranging for the Veteran to undergo VA examinations, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims that have been remanded, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims that have been remanded. Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish to the Veteran and his attorney an SOC with respect to the issues of entitlement to TDIU and service connection for erectile dysfunction, along with a VA Form 9, and afford them the appropriate opportunity to submit a substantive appeal perfecting an appeal as to either issue. The Veteran and his attorney are hereby reminded that to obtain appellate review of either issue not currently in appellate status, a timely appeal must be perfected-as regards the matter of TDIU, within 60 days of the issuance of the SOC-and as regards the issue of entitlement to service connection for erectile dysfunction, within60 days of the issuance of the SOC or one year of the July 24, 2013, notice (contained in the Virtual VA folder) of the July 2013 rating decision. 2. Provide the Veteran and his attorney with a proper notification letter with respect to claims for PTSD and with respect to the claimed exposure to asbestos and tear gas (with respect to asbestos, the RO should ensure that the notice complies with the relevant VA Adjudication Procedure Manual provisions.). This letter should also request that the Veteran provide sufficient information, and if necessary, authorization, to enable the RO to obtain any additional evidence pertinent to the matters that have been remanded. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. The RO should also associate with the record the December 23, 2009, "Memorandum of Formal Finding on a Lack of Information Required to Verify Stressors in Connection to a Post Traumatic Stress Disorder Claim." 4. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all available records and/or responses from each contacted entity are associated with the claims file, or, the time period for the Veteran's response has expired, arrange for the Veteran to undergo VA examinations, at a VA medical facility, to address the foot, cervical and lumbar spine, left arm and shoulder, psychiatric, and respiratory disabilities for which service connection is claimed. The entire claims file, to include a complete copy of this REMAND, and copies of relevant Virtual VA records must be made available to each physician designated to examine the Veteran, and each examination report should reflect consideration of the Veteran's documented medical history and assertions. Following a physical examination of the Veteran, and review of the claims file, each examiner should provide appropriate opinion, as follows. Each examiner should set forth the complete rationale for the conclusion(s) reached in a printed (typewritten) report. Foot Examiner: With respect to each currently diagnosed foot disability, to include pes planus, the examiner should provide an opinion, consistent with sound medical principles, as to whether: (a) (1) The disability clearly and unmistakably existed prior service entrance, and, if so (2) whether the disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. (b) If there is no clear and unmistakable evidence of a preexisting foot disability, for each disorder the examiner should opine as to whether it is at least as likely as not (i.e., there is a 50 percent probability or greater probability) that the disability was incurred during service. In rendering the requested opinions, the examiner must consider the Veteran's sworn testimony with respect to pre-service foot disability. (January 14, 2013, hearing transcript, page 23). Lumbar/Cervical Spine Left Arm and Shoulder Examiner: With respect to each currently diagnosed lumbar spine, cervical spine, left arm or shoulder disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not that any such disability: (a) Had its onset during service, or is/was otherwise medically related to service; or, if not (b) Was caused or is aggravated (worsened beyond natural progression) by any other disability, to include pes planus. If aggravation is found, the examiner should attempt to quantify the extent of disability resulting from aggravation, if possible. Psychiatric Disability Examiner: The psychiatric examiner should clearly identify all current psychiatric disability(ies), to include PTSD, if it is present. If PTSD is diagnosed, the examiner should clearly identify the stressor(s) supporting the PTSD diagnosis, and comment upon the relationship between the stressor(s) and the Veteran's symptoms. With respect to each such diagnosed disability other than PTSD, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not that such disability had its onset in, or is otherwise medically-related to service, to include the claimed "unfair" treatment by the Veteran's chain of command during service associated with the manner in which they viewed the "numerous" (as characterized by the chain of command) sick call visits on the Veteran's willingness to perform his duties. Respiratory Disability Examiner: The physician should clearly identify all current pulmonary/respiratory disability(ies), to include asbestosis. The physician should specifically indicate whether the Veteran actually exhibits radiographic changes indicative of asbestos exposure (consistent with M21-1, Part VI, 7.21(a)(1), p. 7-IV-3). Then with respect to each currently diagnosed respiratory disorder, to include sinusitis, the examiner should provide an opinion, consistent with sound medical principles, as to whether any such disability judgment, as to whether it is at least as likely as not that the disability is medically-related to service, in particular, the result of in-service asbestos exposure as opposed to any post-service occupational asbestos exposure; exposure to tear gas during service; or the in service illness that resulted in the Veteran attaining a temperature of 104 degrees and diagnosis of acute respiratory disease. 6. If the Veteran fails to report to any scheduled VA examination(s), obtain and associate with the claims file a copy of any notice of the date and time of any such examination(s) sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent medical evidence (to include any added to the record since the last adjudication of the claims) and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate SSOC that documents review of all evidence added to the paper claims file and Virtual VA folder since the September 2009 SOC and includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).