Citation Nr: 1337396	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  08-36 079	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for an upper gastrointestinal disability, to include gastroesophageal reflux disease (GERD) and hiatal hernia.  

2.  Entitlement to service connection for a left shoulder disability.

3.  Evaluation of posttraumatic stress disorder (PTSD), rated as 30 percent disabling from July 30, 2009 and as 50 percent disabling from September 1, 2012.

4.  Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disability.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESSES AT HEARING ON APPEAL

Appellant and his Mother


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from November 1987 to November 1991 and from November 1996 to September 1997.  He also had Reserve service to include active duty training from May 1996 to August 1996.
 
This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2006, April 2010 and January 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  

In December 2009, the Veteran presented testimony at a Decision Review Officer (DRO) hearing as to the left shoulder issue.  

In September 2012, a Central Office hearing was held before the undersigned Veterans Law Judge (VLJ).  In November 2012, the Board remanded the appeal for additional development.  

This appeal was processed using the VBMS and Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to TDIU is inferred herein and will be discussed in further detail below.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

The issues of entitlement to service connection for a left shoulder disability and for an upper gastrointestinal disability to include GERD and hiatal hernia 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.


FINDINGS OF FACT

1.  Throughout the appeal period, the Veteran's PTSD has caused occupational and social impairment with deficiencies in most areas, to include work, school, family relations, judgment, thinking and mood.  

2.  The Veteran meets the schedular criteria for TDIU and his service-connected PTSD is of sufficient severity to produce unemployability.


CONCLUSIONS OF LAW

1.  The criteria for an initial 70 percent evaluation, and no more, for service-connected PTSD are met.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.130, Diagnostic Code 9411.  

2.  The criteria for an award of TDIU are met.  38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. § 4.16 (2013).  







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  The appeal regarding an increased evaluation for PTSD is a "downstream" issue in that it arose following the initial grant of service connection for PTSD.  VA notified the Veteran in August 2009 correspondence, prior to the rating decision in question, of the information and evidence needed to substantiate and complete a service connection claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  This letter also provided notice of how disability ratings and effective dates are determined.  The Veteran has been advised of the applicable rating criteria throughout the appeal and following additional development, the claim was most recently readjudicated in the July 2013 Supplemental Statement of the Case.

VA has also satisfied its duty to assist with regard to the issues decided herein.  The claims folder contains extensive evidence, to include VA records (from facilities in Richmond, District of Columbia, Martinsburg, and Baltimore), Social Security Administration (SSA) records, and prison mental health records.  

The Veteran was provided a VA psychiatric examination in March 2010.  In the September 2013 informal hearing presentation, the representative argued that the Veteran believes his PTSD has worsened.  The Board acknowledges this argument, but notes that the claims folder contains extensive medical evidence pertaining to the Veteran's psychiatric treatment, to include recent hospitalization records.  On review, the evidence is sufficient to evaluate the Veteran's current disability level and thus, additional examination is not considered necessary.  

The Veteran was afforded an opportunity to present testimony at a hearing before the Board.  The actions of the VLJ during the hearing supplement the VCAA and comply with any related duties owed during a hearing. 


As discussed below, the issue of TDIU is being inferred by the Board and granted herein.  Thus, the Veteran is not prejudiced by any VCAA notice or assistance errors.  Bernard v. Brown, 4 Vet. App. 384 (1993).

On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  See 38 C.F.R. 
§ 3.159.

Analysis

Evaluation for PTSD

In January 2011, the RO granted service connection for PTSD and assigned a 30 percent rating from July 30, 2009.  The Veteran disagreed with the decision and perfected this appeal.  In his July 2011 VA Form 9, the Veteran argued that his PTSD symptoms fell in the 50 to 70 percent range.

In August 2012, the RO granted a temporary 100 percent evaluation based on hospitalization effective June 1, 2012.  See 38 C.F.R. § 4.29 (2013).  A 50 percent evaluation was assigned from September 1, 2012.  

In a statement received in October 2013, the Veteran's mother argued that the findings from SSA were extremely compatible with a 100 percent rating under the General Rating for Mental Disorders.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).  As set forth, the RO assigned staged ratings.  In this case, however, and as explained below, with the exception of the total rating under § 4.29, a uniform rating is warranted for the remainder of the appeal period.  

When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

PTSD is evaluated pursuant to the General Rating Formula for Mental Disorders.  A 30 percent evaluation is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, Diagnostic Code 9411.  

A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and the inability to establish and maintain effective relationships.  Id.

A 100 percent evaluation is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

As the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently explained, evaluation under § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013).  The symptoms listed in Diagnostic Code 9411 are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  

In the context of determining whether a 70 percent disability evaluation is warranted, the diagnostic code requires "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"- i.e., "the regulation ... requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; see 38 C.F.R. § 4.130, Diagnostic Code 9411.

The Global Assessment of Functioning (GAF) scale reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).  A score of 31 to 40 indicates that the examinee has some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed person avoid friends, neglects family, and is unable to work).  A score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51-60 is appropriate where there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers).  Scores between 61 and 70 reflect some mild symptoms (e.g. depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV) 47. 

Records from the VA Medical Center in Richmond show that the Veteran underwent a mental health consult in February 2010.  He complained of sleeplessness, poor concentration, trust and hypervigilance.  The Veteran was separated and reported problems in his marriage.  The Veteran was homeless and lived an isolated lifestyle.  On mental status examination, he was poorly groomed and speech was rapid, emotional, and loud.  His mood and affect were anxious and his judgment and insight were fair.  It was noted that his PTSD has severely limited his social interactions.  GAF was reported as 60.  

The Veteran underwent a VA psychiatric examination in March 2010.  He reported significant and ongoing issues with anxiety and sleep and he continues to feel lost and lonely.  The symptoms are constant and affect his functioning such that he cannot hold a job or maintain healthy relationships.  The Veteran was married but his symptoms affect their relationship and they were currently separated.  He reported good relationships with his 6 children and parents.  On mental status examination, appearance, hygiene and behavior were appropriate.  Affect and mood showed anxiety.  Communication and speech were normal, but he spoke rapidly and with intensity regarding his traumatic stressor and ongoing symptoms.  No panic attacks or psychoses were noted.  He has obsessional rituals (i.e., checking locks) but not severe enough to interfere with routine activities.  His thought processes were appropriate.  Judgment was not impaired, memory and thinking were normal, and there was no suicidal or homicidal ideation.  Diagnosis was PTSD.  GAF score was 41.

The examiner indicated that the following changes had occurred to the Veteran's psychosocial functional status and quality of life following the traumatic exposure: unable to hold a job and he struggles to find and maintain close and emotionally based relationships.  The examiner further remarked that "[t]he effects of PTSD symptoms on claimant's employment and overall quality of life include struggles due to his anxiety, fatigue, and overwhelming anxiety and anger."  Mentally, the Veteran did not have difficulties with the activities of daily living.  The examiner further stated that the best description of current psychiatric impairment was "psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self care, and normal conversation." 
 
SSA records show that the Veteran underwent a psychiatric evaluation in April 2010.  On mental status examination, the Veteran was clean and eye contact was good.  Speech was clear.  He lacked persistence due to distractibility and his pace was slow.  Thought content contained no preoccupations, but some specific symptoms of paranoia and ideas of reference.  He had no delusions or hallucinations.  He had experienced psychotic symptoms while taking PCP in the past.  Without medication he can be hostile and retaliatory.  He appeared anxious but not depressed.  He did not have suicidal ideation but "would care less" if he were to die.  Insight and judgment appeared to be somewhat impaired and he continued to be paranoid and carry weapons with him.  The examiner stated that the Veteran had a moderately impaired ability to deal with normal stressors and demands encountered in competitive employment because of impairment in areas of social and occupational functioning and in the areas of mood, thinking and judgment.  Diagnoses were PTSD and polysubstance dependence.  GAF was reported as 40.  

SSA records also include a Mental Residual Functional Capacity Assessment dated in June 2010, which indicates that the Veteran was markedly limited in his ability to complete a normal workweek without interruptions from psychiatric symptoms.  
A form completed by B.M., Ph.D., indicates the Veteran was seen on a weekly basis from May through June 2010 and was noted to have rapid speech, racing thoughts and flight of ideas, poor concentration, poor impulse control and judgment, and insight was poor to fair.  

As noted, the claims folder contains voluminous VA medical records.  Review of these records shows extensive psychiatric treatment from approximately 2009 to the present, with the exception of an approximately one-year period of incarceration.  Although symptoms vary, outpatient records document continued sleep difficulties, problems with substance abuse, panic attacks, anxiety and relationship issues.  The Veteran participates in group therapy and takes multiple medications in an effort to control his symptoms.  

The Veteran was incarcerated from approximately April 2011 to March 2012.  Prison records show that he underwent a psychiatric evaluation in April 2011.  He complained of anxiety and intense fear of demons in his head.  Medications were increased to reduce psychotic symptoms.  Subsequent notes, also dated in April 2011 indicate continued paranoid and delusional thinking.  Notes dated in June 2011 indicate that psychotic symptoms had resolved on Thorazine.  The Veteran again reported hearing voices in October 2011, but denied suicidal or homicidal ideation and reported his mood was pretty good.  In January 2012, he reported increased symptoms after his Thorazine was decreased.  It appears that the Veteran was released in March to follow up with VA.  

The Veteran underwent 8 weeks of inpatient residential treatment at the VA Medical Center in Baltimore from approximately June through July 2012.  This appears to have been court ordered treatment following his incarceration for drug possession.  The June 2012 psychosocial assessment noted significant anxiety, including panic attacks several times a weeks, significant sleep problems, periods of significant depression, and intermittent auditory hallucinations.  Mood was anxious, but insight and judgment were reportedly good.  The June 2012 treatment plan notes a history of PCP abuse secondary to PTSD.  Records dated in July noted that the Veteran had been cutting his arm with a knife (self-harm as a PTSD symptom).  On discharge, GAF was 48.  

In September 2012, the Veteran was admitted to the VA Medical Center in Martinsburg, West Virginia.  He had thoughts of harming his neighbor who reminded him of his previous assailant.  He was going to stab the neighbor and then overdose.  GAF was 45.  The Veteran was discharged the following day, with a GAF of 55.  

At the September 2012 hearing, the Veteran testified that he has problems sleeping and panic attacks.  He does not have a job or friends and does not trust anybody.  He also reported problems with family relationships.  

A November 2012 statement from a VA psychiatrist indicates that the Veteran is being treated for PTSD and various other Axis I disorders.  It was noted that his PTSD, hypomania and ADHD all contribute to his PCP abuse and thus he requires integrated treatment.  He started participating in a 25 week group for Veteran's with PTSD and substance abuse problems.  

Following review of the evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the disability picture more nearly approximates the criteria for a 70 percent evaluation during the entirety of the appeal period, with the exception of the period where he was receiving a 100 percent temporary rating based on hospitalization.  See 38 C.F.R. § 4.29.  In making this determination, the Board notes that despite assigning a GAF of 41 (which indicates serious symptoms), the March 2010 examiner suggested the symptoms were consistent with the criteria for a 30 percent evaluation.  The SSA evaluation approximately one month later indicates impairment in functioning in several areas, to include mood, thinking, and judgment.  

Considering all evidence of record, the Veteran's PTSD causes occupational and social impairment with deficiencies in most areas, to include work, school, family relations, judgment, thinking and mood.  Evidence of record shows that the Veteran's PTSD symptoms, particularly his sleep disturbance, significantly interfere with his ability to hold a job.  While the Veteran was supposedly attending college through vocational rehabilitation, it appears that his family was completing the coursework online for him.  Evidence of record shows intermittent suicidal ideation and some obsessional rituals.  The Veteran also experiences panic attacks and overwhelming anxiety.  The overall evidence suggests significant psychiatric symptoms which cause difficulty in adapting to stressful circumstances, including work, and impair relationships.  Throughout the appeal period, the Veteran has been assigned numerous GAF scores and while they vary somewhat, most indicate serious symptoms or serious impairment in social and occupational functioning.  

In considering whether a 100 percent evaluation is warranted, the Board acknowledges there is some evidence of impaired thought processes, delusions or hallucinations, and danger of hurting self or others.  Such symptoms, however, are not persistent and appear largely controlled with medication.  The Veteran does not demonstrate grossly inappropriate behavior, his hygiene is generally appropriate, and he is able to complete the activities of daily living independently.  Overall, the Veteran does not exhibit disorientation to time or place, or memory loss.  The disability picture does not more nearly approximate total occupational and social impairment.  

In reaching this decision, the Board has also considered whether the Veteran may be entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321 (2013).  In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration.  Step one, is to determine whether the schedular rating adequately contemplates a claimant's disability picture.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, then no referral to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating is required.  If the schedular criteria do not contemplate the claimant's level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the claimant's disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria.  If the disability picture meets the second step, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether an extraschedular rating is warranted. 

Regarding the first step of Thun, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology.  Most of the symptoms reported are specifically set forth in the rating criteria and the Board has considered the occupational and social impairment resulting from the Veteran's service-connected disability.  Here the rating criteria clearly contemplate the Veteran's disability picture and a higher schedular evaluation is available for greater levels of disability.  Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis, that is, whether the disability picture is exceptional.  As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).

TDIU

At the hearing, the representative indicated that the Veteran already had a claim for TDIU pending.  On review, it does not appear that this has been adjudicated.  Regardless, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is "part of," and not separate from, a claim of entitlement to an increased rating.  Id. at 453.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a). 

Entitlement to a total compensation rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to keep and maintain substantially gainful work.  See 38 C.F.R. §§ 3.340, 3.341, 4.16. 

The question in a claim of entitlement to a TDIU rating is whether a veteran is capable of performing the physical and mental acts required by employment and not whether a veteran is, in fact, employed.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  In making this determination, the Board notes that the pertinent inquiry is whether service-connected disabilities individually or in combination are of sufficient severity to produce unemployability - not whether a veteran is unemployable solely due to his service-connected disabilities.  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). 

As discussed above, the Board is granting an initial 70 percent evaluation for PTSD.  Thus, the schedular requirements for TDIU are met.  The Board also notes that the Veteran is service-connected for right ankle disability (10 percent from November 10, 1999; 100 percent from October 26, 2007 (38 C.F.R. § 4.30); and 20 percent from December 1, 2007); status post gunshot wound left thigh (10 percent from February 26, 2010); and right ankle surgical scar (noncompensable from February 26, 2010).  

A June 2010 Mental Residual Functional Capacity Assessment completed in connection with the Veteran's SSA claim indicates that the Veteran had severe limitations due to his mental disorder and did not appear able to sustain substantially gainful activity without interruption from psychiatric symptoms.  SSA ultimately found the Veteran disabled beginning in January 2009 based on a primary diagnosis of anxiety disorders and a secondary diagnosis of substance addiction.  

Review of VA records suggests that the Veteran was laid off from work sometime in 2009.  Although he apparently made some efforts to find another job, it does not appear that he was able to find one and he remains unemployed.  

Statements from the Veteran's fiancée and his ex-wife dated in 2009 both indicate that the Veteran had significant sleep problems which affected his ability to maintain employment.  

In his August 2012 VA Form 21-8940, the Veteran reported that he last worked full-time in January 2009.  He also reported employment from May to June 2009, with 5 days lost from illness.  He indicated that he could not work due to PTSD and mental health problems.  He also reported that he was in vocational rehabilitation from 2006 to 2010 and that when he took his first class, he saw that he could not handle college so his wife and kids took the classes online for him.  

As discussed above, the Veteran has numerous symptoms due to his PTSD that affect his ability to work.  He gets extensive VA treatment and it appears he spends significant time in group therapy.  On review, the preponderance of the evidence shows that the Veteran's service-connected PTSD is of sufficient severity to produce unemployability.  Accordingly, TDIU is warranted.  


ORDER

Entitlement to an initial 70 percent evaluation, and no more, for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits.

TDIU is granted, subject to the laws and regulations governing the award of monetary benefits.  

REMAND

Service connection for left shoulder disability

In May 2006, the RO denied service connection for a left shoulder disability.  The Veteran disagreed with the decision and perfected this appeal.  

In March 2013, the Veteran's mother submitted a statement indicating she was attaching a power of attorney to conduct her son's legal matters.  The actual power of attorney is not attached in the virtual record.  In an undated statement received in March 2013, the Veteran's mother informed VA that he would like to withdraw his appeal for a left shoulder injury.  She further stated that VA should have her power of attorney on file.  Review of the claims folder includes a May 2011 medical power of attorney in favor of the Veteran's parents.  The Board, however, is unable to locate the power of attorney for legal matters.  

On remand, VA should contact the Veteran and his representative to determine whether he wishes to withdraw the appeal of entitlement to service connection for a left shoulder disability.  See 38 C.F.R. § 20.204 (2012) (Only an appellant, or an appellant's authorized representative, may withdraw an appeal).  

Service connection for an upper gastrointestinal disability

In April 2010, the RO denied service connection for a hiatal hernia with GERD.  The Veteran disagreed with the decision and perfected this appeal.  

Pursuant to the November 2012 remand, VA was to make additional efforts to obtain complete service treatment records.  On review, it appears that various requests were made to obtain these records.  The most recent response appears to be a VA Form 3101 received in August 2013, which states "[w]e are mailing [service treatment records] found on microfiche.  We have no information as to where the other [service treatment records] are presently or even if they still exist."  

It does not appear that a formal finding of unavailability was completed or that the Veteran was notified that VA was unable to obtain complete records.  This should be accomplished on remand.  See 38 C.F.R. § 3.159(c)(2); M21-1MR, Part III.iii.2.I.59.B.  

Records from the VA Medical Center in Indianapolis dated in March 1998 show that the Veteran was seen with complaints of heartburn for 8 months.  Assessment was dyspepsia.  

In June 2009, the Veteran underwent esophagogastroduodenoscopy (EGD).  This showed esophagitis in the lower 1/3 of the esophagus with small hiatal hernia.  Normal stomach and duodenum.  

In an October 2013 statement, the Veteran's mother argued that the March 1998 record shows he had heartburn for 8 months and that during that time period, he was on active duty with the Reserves.  

Evidence of record suggests current disability and the March 1998 VA treatment records suggest symptoms of heartburn during the Veteran's last period of service.  On review, a VA examination is needed.  See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO/AMC should contact the Veteran and his representative to confirm whether or not he wishes to withdraw his appeal for service connection for a left shoulder disability.  

2.  The RO/AMC should complete a formal finding of unavailability as concerns service treatment records.  The Veteran should be advised of this finding and offered an opportunity to submit any additional service records in his possession.  

3.  Thereafter, the RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of any current upper gastrointestinal disability, to include GERD and hiatal hernia.  The claims folder should be made available for review by the examiner. Additionally, all relevant medical records should be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then 
via paper copies.  

The examiner is specifically requested to identify all current upper gastrointestinal disabilities, to include GERD and/or hiatal hernia, and for each disorder, opine as to whether it is at least as likely as not related to active military service.  In making this determination, the examiner should consider the March 1998 VA medical records documenting complaints of heartburn for 8 months.  (Note the Veteran was on active duty from November 1996 to September 1997).  

A complete rationale for any opinion expressed should be provided.  

4.  After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  If the report is deficient in any manner, the RO/AMC should implement corrective procedures.

5.  The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655 (2013).

6.  Upon completion of the above development, and any additional development deemed appropriate, the RO/AMC should readjudicate any remaining appeal issues.  If the benefits sought on appeal remain denied, the appellant and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

The appellant 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).

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).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs