Citation Nr: 1335720 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-21 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for metatarsalgia, bilateral feet, (previously claimed as muscle pain). 2. Entitlement to service connection for a lumbosacral spine disability. 3. Entitlement to service connection for an acquired psychiatric disorder, to include symptoms of memory loss. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 1, 1981 to July 29, 1981, from January 1991 to September 1991, and from September 2004 to February 2006. This matter comes to the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2012, the Veteran testified before the undersigned Veterans Law Judge at the local RO. A copy of the transcript of that hearing has been associated with the claims file. During the course of the Veteran's October 2012 Board hearing, the Veteran clarified that his claim for entitlement to service connection that had been classified as for "muscle pain" actually should be considered as "muscle pains [] from the tip of my toes to the bottom of my feet, the ball of my feet." The Veteran also stated that these symptoms were separate and distinct from his joint pain and muscle aches that were associated with his service-connected fibromyalgia. As such, the Veteran's claim has been reclassified as listed on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). During that same hearing, the Veteran indicated that his claim for entitlement to service connection for memory loss also included other psychiatric symptoms, such as anger. As such, the Veteran's claim has been recategorized as listed above. See id. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems to ensure review of the totality of the evidence. The issues of entitlement to service connection for a lumbosacral spine disability, an acquired psychiatric disorder, headaches, and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Service connection is in effect for metatarsalgia, bilateral feet. CONCLUSION OF LAW There being no justicable case or controversy, the Veteran's claim of entitlement to service connection for metatarsalgia, bilateral feet, (previously claimed as muscle pain) is dismissed. 38 U.S.C.A. § 7105 (West 2002). REASONS AND BASES FOR FINDING AND CONCLUSION In a March 2012 rating decision, service connection for metatarsalgia, bilateral feet (to include calluses) was established. Although not currently of record, the Veteran also appears to have perfected a claim for entitlement to service connection for muscle pain. As discussed above, during his October 2012 Board hearing the Veteran clarified that the basis for this claim was pain that ran from his toes through his bilateral feet. The Board recognizes that the Veteran's claims file has been partially rebuilt, but with numerous documents not currently of record. Moreover, a previous November 2009 rating decision severed service connection for muscle pain for the Veteran's bilateral feet. That said, VBMS indicates that the Veteran currently is service connected for metatarsalgia, bilateral feet, with a 10 percent disability rating assigned. As such, his claim of entitlement to service connection for muscle pain (redesignated as metatarsalgia, bilateral feet) is moot as the benefit sought on appeal is already in effect. See, e.g., Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). ORDER The appeal with respect to the issue of entitlement to service connection for metatarsalgia, bilateral feet, (previously claimed as muscle pain) is dismissed. REMAND The Veteran also seeks entitlement to service connection for a lumbosacral spine disability, an acquired psychiatric disorder, headaches, and sleep apnea. Although the Board regrets any further delay in adjudicating the Veteran's claims, a remand is required to allow further development and reconstruction of the Veteran's claims file. Outstanding Records The Board notes at the outset that this case involves a rebuilt claims file. Specifically, the file indicates that the original three volume claims file was rebuilt on July 16, 2013, after the October 2012 Board hearing discussed above. According to VACOLS, the rebuilt claims file subsequently was mailed to the Board on July 25, 2013. However, there is no indication in the rebuilt claims file that such rebuilding efforts were undertaken in accordance with the instructions of the Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1MR, Part III, Subpart ii, Chapter 4, Section D. The Board finds the efforts to rebuild the claims file particularly problematic, given that no Statements of the Case (SOCs) or Supplemental Statements of the Case (SSOCs) have been associated with the rebuilt file. Moreover, the February 2008 rating decision of record indicates that multiple VA examinations were afforded the Veteran with respect to the claims on appeal, yet the sole VA examination report incorporated in the rebuilt claims file was a VA audiology examination, which is not applicable to the current claims. This oversight calls into serious question whether all VA medical treatment records have been associated with the claims file from CAPRI. Also, the February 2008 rating decision notes that private treatment records from Dr. Rick Schmidt, Dr. McKinney, and Dr. McCown were of record, yet no effort appears to have been made to obtain new copies of such records from the private treatment providers. In addition, during the October 2012 Board hearing, the Veteran noted additional treatment with institutions and/or individuals that included the Moore Medical Center in Norman, Oklahoma, the Sleep Study Center in Norman, Oklahoma (although the Board notes that the February 2008 rating decision tangentially suggests that records from this institution were associated with the original claims file), and the Purcell Municipal Hospital in Purcell, Oklahoma. In addition to the foregoing, the February 2008 rating decision referenced multiple written statements from the Veteran's wife, as well as a statement from Gary Campbell. The statement from Gary Campbell appears to have been related to the Veteran's sleep apnea claim. Should additional efforts to obtain the original claims file prove unsuccessful, the Veteran should be contacted and offered an opportunity to provide additional statements from these individuals. In that regard, the Board notes that the Veteran's wife provided testimony during the October 2012 Board hearing and, therefore, some portion of her previous written statements may already be of record. Finally, the February 2008 rating decision states that the Veteran's service treatment records could not be located by the NPRC. The RO/AMC should take the opportunity to make additional requests to obtain the Veteran's service treatment records. VA Medical Examinations The February 2008 rating decision indicates that the Veteran was afforded VA examinations for his low back, psychiatric, headache, and sleep apnea claims. However, and as noted above, the associated examination reports are not currently of record. That said, even were these examination reports located, based on the findings reported in the February 2008 rating decision the Board finds that additional VA examinations are required. As to the Veteran's low back claim, there is evidence that the Veteran had a pre-existing low back disability that he claims was permanently aggravated beyond its natural progression as a result of his military service. Specifically, during his October 2012 Board hearing the Veteran reported that beginning in September 2004 multiple incidents worsened his back problems, including an injury during training exercises, carrying duffel bags up three flights of stairs, riding in a helicopter, and as a result of incidents while stationed in Iraq. The February 2008 rating decision did not indicate that the VA examination of the low back included any opinion as to the etiology of his low back problems. As such and in light of the Veteran's contentions, a new examination is required. As to the Veteran's sleep apnea claim, the February 2008 rating decision indicated that the examiner could not reach an opinion because the service treatment records had not been associated with the claims file. There is no evidence from this statement that the examiner considered the Veteran's or any other lay contentions of record. The Veteran's claim for entitlement to service connection for a psychiatric disorder previously has been considered based solely on the Veteran's reports of memory loss or increased memory problems. During the October 2012 Board hearing, however, the Veteran and his wife testified that his psychiatric symptoms also included problems with anger and that these symptoms had started during the Veteran's military service or shortly thereafter. As such, the Board concludes that an additional VA psychiatric examination is required to consider these symptoms. Finally, the February 2008 rating decision indicated that the VA examination report had included a diagnosis of headaches. However, there is no indication that the examination report included an opinion as to the etiology of those headaches. In addition, during the October 2012 Board hearing the Veteran reported that his headaches began during service or shortly after his return from service. The Board also notes that the Veteran is separately service connected for fibromyalgia and that a March 2012 rating decision of record suggested that the Veteran's 40 percent disability rating for fibromyalgia was based on headache symptoms. It is unclear from the evidence of record whether the Veteran's claimed headaches currently on appeal are the same type of headaches contemplated in the fibromyalgia disability rating, such that service connection and a separate rating would constitute impermissible pyramiding as contemplated by 38 C.F.R. § 4.14 (2013). The Board concludes that a VA examination is required to clarify the issue. Accordingly, the case is REMANDED for the following action: 1. Take all procedurally appropriate actions to locate the Veteran's original claims file or rebuild the claims file in accordance with M21-1MR, Part III, Chapter 4, including associating all past rating decisions, statements of the case, supplemental statements of the case, prior Board decisions, Court Orders, Joint Motions for Remand, Briefs, powers of attorney, VA treatment records, VA examination reports, and other evidence with the rebuilt claims file. Associate all pertinent documentation and inquiries with the claims file. Document all attempts to secure the Veteran's original claims file. Notify the Veteran and his representative of all efforts and (a) identify the specific records VA is unable to obtain (see Remand narrative above for some specific examples); (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. For any unavailable U.S. Government records, to include the Veteran's service treatment records, VA must indicate in writing that further attempts to locate or obtain such records would be futile. The Veteran and his representative must then be given an opportunity to respond. 2. After the above is complete, schedule the Veteran for appropriate VA medical examination for his low back. The claims file must be provided to the examiner for review and the examiner must note that it has been reviewed. Following a review of the relevant evidence in the claims file, obtaining a complete history from the Veteran, a clinical evaluation, and any tests that are deemed necessary, the examiner is asked to provide an opinion on the following: a.) As to any diagnosed low back disability, to include any diagnosed degenerative joint disease, state whether such disability is the result of an injury, congenital defect, or congenital disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)]. Please provide a complete explanation for the opinion. b.) For each current diagnosed low back disability that is best categorized as a congenital defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease during the period of active duty that resulted in additional disability of the low back. Please provide a complete explanation for the opinion. c.) For each current diagnosed low back disability that is best categorized as a disease (or injury, such as residuals of the pre-service L1 fracture), state whether there is clear and unmistakable evidence (obvious, manifest, and undebatable) that it pre-existed the Veteran's active duty service. Please provide a complete explanation for the opinion. d.) If there is clear and unmistakable evidence that any low back disability pre-existed service (see c.) above), state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing disease (or injury) WAS NOT aggravated (i.e., permanently worsened) during military service, or whether it is clear and unmistakable that any increase was due to the natural progress of the disease (or injury). Please provide a complete explanation for the opinion. e.) For each current low back disability that did not pre-exist military service, is it at least as likely as not that the Veteran has a current low back disability that was incurred in or otherwise related to his military service. Please provide a complete explanation for the opinion. Review of the whole rebuilt file is required; however, attention is invited to the Veteran's October 2012 hearing testimony, pages 2-9. 3. After 1. above is complete, schedule the Veteran for appropriate VA examination for his psychiatric problems, specifically to include memory loss and anger issues. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a history directly from the Veteran, and conducting a thorough examination, as well as any studies deemed necessary, the examiner should offer an opinion as to whether any diagnosed psychiatric disorder had its onset during military service or is otherwise related to service. As to any observed memory loss not attributable to a specific diagnosed psychiatric disorder, indicate to what extent such symptoms affect or inhibit the Veteran's functioning. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete explanation for any opinion provided. Review of the whole rebuilt file is required; however, attention is invited to the Veteran's October 2012 hearing testimony, pages 21-26. 4. After 1. above is complete, schedule the Veteran for appropriate VA examination for his headache problems. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a history directly from the Veteran, and conducting a thorough examination, as well as any studies deemed necessary, the examiner should offer an opinion as to whether any diagnosed headache disorder had its onset during military service or is otherwise related to service. As to any headaches or headache disorder noted, indicate to what extent such symptoms were caused or aggravated by the Veteran's service-connected fibromyalgia. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete explanation for any opinion provided. Review of the whole rebuilt file is required; however, attention is invited to the Veteran's October 2012 hearing testimony, pages 13-17. 5. After 1. above is complete, schedule the Veteran for appropriate VA examination for his claimed sleep apnea. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a history directly from the Veteran, and conducting a thorough examination, as well as any studies deemed necessary, the examiner should offer an opinion as to whether any diagnosed sleep apnea had its onset during military service or is otherwise related to service. As to any observed sleep problems not attributable to a specific diagnosed sleep apnea disorder, indicate to what extent such symptoms affect or inhibit the Veteran's functioning. Review of the whole rebuilt file is required; however, attention is invited to the Veteran's October 2012 hearing testimony, pages 17-21. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete explanation for any opinion provided. 6. After the above is complete, readjudicate the Veteran's claims. If one or more of the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs