Citation Nr: 1336280 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-38 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for residuals of a burn to the left forearm. 2. Entitlement to service connection for degenerative joint disease of the lumbosacral spine. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for chronic urinary tract infections (UTIs). 6. Entitlement to service connection for an acquired psychiatric disorder, to include major depression, adjustment disorder, and posttraumatic stress disorder (PTSD), and to include as secondary to the service-connected prostrating headaches. 7. Entitlement to an initial compensable disability rating for the service-connected prostrating headaches, from October 27, 2009, to January 25, 2011. 8. Entitlement to an initial disability rating in excess of 30 percent for the service-connected prostrating headaches, since January 26, 2011. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1981. The Veteran's forearm, lumbar spine, knees, and UTIs claims come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the benefits sought on appeal. Another rating decision dated in March 2010 again denied the Veteran's lumbar spine claim. The Veteran filed a Notice of Disagreement (NOD) in March 2010. The RO issued a Statement of the Case (SOC) in September 2010. In September 2010, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of these issues. The Veteran's headaches appeal comes before the Board on appeal from a March 2010 rating decision of the RO in Philadelphia, Pennsylvania, which granted service connection for the prostrating headaches and assigned an initial disability rating of 0 percent, retroactively effective from October 27, 2009, the date of the Veteran's service connection claim. The Veteran filed NODs in March 2010 and January 2011, appealing the initial disability rating assigned. The RO did not issue a SOC in response. Instead, the RO issued another rating decision in May 2012, which increased the rating for the headaches to 30 percent. The 30 percent rating was made retroactively effective from January 26, 2011, the date of a VA examination that reflected findings sufficient to establish entitlement to a higher evaluation. This rating decision created staged ratings, and the title page has been adjusted accordingly. In March 2013, the Veteran submitted another NOD, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a Veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). To date, the RO has not issued a SOC on this appeal. The Veteran's acquired psychiatric disorder claim comes before the Board on appeal from a June 2011 rating decision of the RO in Philadelphia, Pennsylvania, which denied the benefit sought on appeal. The Veteran filed a NOD in March 2010. The RO issued a SOC in September 2010. In September 2010, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. In July 2012, the Veteran was afforded his requested Board hearing before the undersigned Veterans Law Judge at the local RO (Travel Board hearing). A copy of the hearing transcript has been associated with the claims file. The RO certified this appeal to the Board in June 2012. Subsequently, additional medical evidence was added to the record. However, the Veteran's representative waived the Veteran's right to have the RO initially consider this evidence in a statement dated in August 2013. 38 C.F.R. §§ 20.800, 20.1304 (2013). The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision and remand, along with his paper claims file. With the exception of the forearm claim, the remaining issues on appeal 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 In July 2012, following the September 2010 Substantive Appeal, but prior to the promulgation of a decision on the appeal, the Board received notification from the Veteran that a withdrawal of the appeal pertaining to the claim of entitlement to service connection for residuals of a burn to the left forearm was requested. CONCLUSION OF LAW The criteria for withdrawal of the appeal pertaining to the claim of entitlement to service connection for residuals of a burn to the left forearm have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal pertaining to residuals of a burn to the left forearm claim in a July 2012 statement, following the September 2010 Substantive Appeal that perfected his appeal. Hence, there remain no allegations of errors of fact or law for appellate consideration on this issue. Accordingly, the Board does not have jurisdiction to review the issue, and it is dismissed. ORDER The appeal pertaining to the claim of entitlement to service connection for residuals of a burn to the left forearm is dismissed. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the remaining claims can be properly adjudicated. Initially, at his Board hearing, the Veteran testified that he would be seeking medical treatment from the VA Medical Center (VAMC) in the near future for the disorders on appeal. Here, the most recent outpatient treatment records from the VAMC in Philadelphia, Pennsylvania, are dated from February 2012. On remand, all pertinent VA treatment records since this date should be obtained and added to the claims file. Upon remand, the Veteran's private treatment records currently contained in the claims file should also be updated. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2002); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Additionally, the Board notes that under McLendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). Headaches Claims The Board has determined that the Veteran filed timely NODs in March 2010 and January 2011 in response to the March 2010 rating decision that granted service connection for the Veteran's prostrating headaches. The Veteran then filed another timely NOD in March 2013, in response to the May 2012 rating decision, which increased the disability rating for the headaches to 30 percent, retroactively effective from January 26, 2011. To date, the RO has not issued a SOC in response to these NODs. Thus, the RO must now respond to the Veteran's timely NODs with a SOC addressing the appeal. Manlincon v. West, 12 Vet. App. 238 (1999). Psychiatric Claim Initially, the record documents that the Veteran has a current PTSD diagnosis. See VA treatment record dated in January 2011 and VA examination dated in February 2011. To date, the Veteran has not been provided with a proper duty-to-assist notice letter for his PTSD claim (which is included as part of his acquired psychiatric disorder claim), to include proper notice on the new PTSD regulations. See 38 C.F.R. § 3.304(f) (2013). His previous notice letters have only dealt with his other psychiatric diagnoses claim. The Veteran must be provided with this requisite notice before his claim can be decided on the merits. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); see Dingess v. Nicholson, 19 Vet. App. 473 (2006). Second, the Board finds that a VA addendum medical opinion is needed before the claim can be decided on the merits. The Veteran was afforded a VA examination and medical opinion in February 2011. The examiner provided a negative nexus opinion regarding secondary service connection. However, the Board finds this VA medical opinion to be inadequate because the examiner did not address the aggravation aspect of secondary service connection. 38 C.F.R. § 3.310 (2013). The United States Court of Appeals for Veterans Claims (Court) held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection. Allen v. Brown, 7 Vet. App. 439, 449 (1995). The Veteran asserts that his acquired psychiatric disorder was caused by or aggravated by his service-connected prostrating headaches. Therefore, this VA medical opinion is essential to the Veteran's acquired psychiatric disorder claim, and must be obtained. Further, a VA medical opinion on the issue of direct service connection (i.e., whether the Veteran's current acquired psychiatric disorder was incurred in or related to his active military service) has not been obtained. 38 C.F.R. § 3.303 (2013). At his Board hearing, the Veteran testified that his acquired psychiatric disorder may also be related to his in-service head injury in August 1979, which is documented in his service treatment records (STRs). To date, the Veteran has not been afforded a VA medical opinion on direct service connection. The Board finds that a VA medical opinion on the issue of direct service connection is also necessary to the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Back Claim The Veteran was afforded a VA examination and medical opinion in March 2010. The examiner provided a negative medical nexus opinion. However, the Board finds this VA medical opinion to be inadequate. In forming his medical opinion, the VA examiner addressed the July 1981 in-service documentation of back pain and corresponding diagnosis of muscle strain. However, the examiner did not address the Veteran's Military Occupational Specialty (MOS) of Clerk, in which the Veteran testified at his Board hearing that he was required to lift heavy items throughout his active military service. The Veteran stated that this repeated lifting put stress on his back and caused his current lumbar spine disorder. Additionally, the VA examiner did not address the Veteran's in-service sports activities and their effects on the Veteran's current lumbar spine disorder. In April 1995, the Veteran submitted several lay statements describing the Veteran's complaints of back pain since service, to include a statement from his mother who indicated that the Veteran injured his back while playing sports in service. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Another VA examination is necessary before a decision on the merits may be reached. Knees Claims Under McLendon, a remand is required in order to afford the Veteran a VA examination to determine the nature and etiology of his current bilateral knee disorders. 20 Vet. App. at 81-85. Here, regarding a current diagnosis, the Veteran was diagnosed with degenerative changes in each knee following X-rays taken by the VAMC in February 2012. Regarding an in-service incurrence of this disorder, the Veteran's STRs do not document any complaints of or treatment for his bilateral knees. However, at his Board hearing, the Veteran testified that his current bilateral knee disorders were incurred during his active military service, primarily from his MOS of Clerk, in which the Veteran testified that he was required to lift heavy items throughout his active military service. The Veteran stated that this repeated lifting put stress on his knees and caused his current bilateral knee disorders. The Veteran reported that he went to sick call on several occasions during service and was treated with medication for his knees. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., his military duties and his in-service and post-service symptomatology. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Therefore, the claims file contains medical and lay evidence of current disorders, an in-service incurrence of these disorders, and an indication that the disorders are related to in-service events. To date, the Veteran has not been provided a VA examination and medical opinion for these claims. Thus, a remand to obtain a VA examination and medical opinion addressing the etiology of the Veteran's bilateral knee disorders is necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). UTIs Claim Under McLendon, a remand is required in order to afford the Veteran a VA examination to determine the nature and etiology of his current UTIs. 20 Vet. App. at 81-85. Here, regarding a current diagnosis, the Veteran was diagnosed with probable chlamydia urethritis by the VAMC in March 2010. At his Board hearing, the Veteran testified that that he currently experiences a burning sensation, a tight or squeezing feeling in his testicles, and UTIs. Regarding an in-service incurrence of this disorder, the Veteran's STRs document that the Veteran was treated for a urethral discharge and diagnosed with chronic prostatitis in April 1980. At his Board hearing, the Veteran also testified to being diagnosed with gonorrhea on several occasions during service, and being treated by the sick call. The Veteran stated that the gonorrhea left a residual burning sensation. These treatment visits are not documented in the STRs. Nonetheless, the claims file contains medical and lay evidence of a current disorder, an in-service incurrence of this disorder, and an indication that the disorder is related to in-service events. To date, the Veteran has not been provided a VA examination and medical opinion for this claim. The Board notes that the Veteran was scheduled for a VA examination in April 2012, but the Veteran failed to report for the examination. 38 C.F.R. §§ 3.158, 3.655 (2013). However, the claims file does not contain notice of the examination being scheduled, and at his Board hearing, the Veteran testified that his absence was a miscommunication regarding the scheduled examination. Therefore, the Board finds that another attempt must be made to obtain a VA examination and medical opinion addressing the etiology of the Veteran's claimed chronic UTIs. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following actions: 1. Issue a SOC addressing the Veteran's appeal concerning entitlement to an initial compensable disability rating for the service-connected prostrating headaches, from October 27, 2009, to January 25, 2011, and an initial disability rating in excess of 30 percent for the service-connected prostrating headaches, since January 26, 2011. Advise the Veteran and his representative of the date on which the time allowed for perfecting a timely substantive appeal expires. If the Veteran and/or the Veteran's representative perfects his appeal by submitting a timely and adequate Substantive Appeal, then the agency of original jurisdiction (AOJ) should return the appeal to the Board for the purpose of appellate disposition, if the appeal remains denied. 2. Send the Veteran a duty-to-assist notice letter pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes, but is not limited to, an explanation as to what information or evidence is needed to substantiate a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In particular, notify the Veteran of the requirements for establishing service connection for PTSD under the old and revised regulations. See 38 C.F.R. § 3.304(f). Additionally, this letter must inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 3. Obtain all pertinent VA outpatient treatment records from the Philadelphia, Pennsylvania, VAMC since February 2012 that have not been secured for inclusion in the record. All attempts to secure this evidence must be documented in the claims file. If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 4. Obtain and update all private treatment records currently contained in the claims file. If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 5. After obtaining the above records, the AOJ shall ask the February 2011 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for an appropriate VA psychiatric examination to ascertain the nature and etiology of his currently diagnosed acquired psychiatric disorder, to include depression, adjustment disorder, and PTSD. The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's PTSD is related to service, to include any verified PTSD stressors or fear of hostile military or terrorist activity? b) For any psychiatric diagnosis other than PTSD, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed acquired psychiatric disorder was incurred during his active military service, to include the documented August 1979 head injury? c) Is it at least as likely as not that any currently diagnosed acquired psychiatric disorder is aggravated (made permanently worse beyond the natural progression of the disease) by his service-connected prostrating headaches? Of note, the Veteran is competent to report his in-service symptoms and his post-service symptoms. Therefore, in forming his or her opinion, the VA examiner must ask the Veteran about his symptoms during his active military service and since his active military service. The examiner must also comment upon and consider these lay statements in forming his or her medical opinion. 6. After obtaining the above records, the AOJ shall ask the March 2010 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for an appropriate VA joints examination to ascertain the nature and etiology of his currently diagnosed degenerative joint disease of the lumbosacral spine. The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed degenerative joint disease of the lumbosacral spine was incurred during his active military service, to include the documented low back complaint in July 1981? Of note, the Veteran is competent to report his in-service military duties related to his MOS of Clerk, to include lifting heavy items, his in-service sports, his in-service symptoms, and his post-service symptoms. Therefore, in forming his or her opinion, the VA examiner must ask the Veteran about his symptoms during his active military service and since his active military service. The examiner must also comment upon and consider these lay statements in forming his or her medical opinion. 7. After obtaining the above records, schedule the Veteran for an appropriate VA joints examination to ascertain the nature and etiology of his currently diagnosed degenerative changes of each knee. The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed bilateral knee disorders were incurred during his active military service? Of note, the Veteran is competent to report his in-service military duties related to his MOS of Clerk, to include lifting heavy items, his in-service symptoms, and his post-service symptoms. Therefore, in forming his or her opinion, the VA examiner must ask the Veteran about his symptoms during his active military service and since his active military service. The examiner must also comment upon and consider these lay statements in forming his or her medical opinion. 8. After obtaining the above records, schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of his claimed chronic UTIs. The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: a) Does the Veteran have a current diagnosis pertaining to his claimed chronic UTIs, to include prostatitis? b) If so, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current diagnosis was incurred during any period of his active military service, to include the documented diagnosis of chronic prostatitis in April 1980? Of note, the Veteran is competent to report his in-service symptoms of gonorrhea on multiple occasions and his post-service symptoms, to include a burning sensation. Therefore, in forming his or her opinion, the VA examiner must ask the Veteran about his symptoms during his active military service and since his active military service. The examiner must also comment upon and consider these lay statements in forming his or her medical opinion. 9. After the above actions have been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs