Citation Nr: 1417637 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 10-32 453 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for sores. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a sinus condition. 4. Entitlement to service connection for a disability of the knees. 5. Entitlement to service connection for a disability of the shoulders. 6. Entitlement to service connection for a disability of the hips. 7. Entitlement to service connection for a disability of the elbows. 8. Entitlement to service connection for a disability of the lumbar spine. 9. Entitlement to service connection for memory loss. 10. Entitlement to a rating in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD). 11. The propriety of the reduction of the rating for the service-connected bilateral hearing loss disability from 30 percent to 10 percent, effective on December 1, 2009. 12. Entitlement to a rating in excess of 30 percent for the service-connected bilateral hearing loss. 13. Entitlement to a total disability rating due to individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1974 to July 1977, and from November 1990 to May 1991. His second period of active duty include service in Southwest Asia. Additionally, the Veteran served on various periods of inactive duty training (IDT), including service from December 1, 1984 to December 2, 1984; July 11, 1992 to July 12, 1992; and other periods not currently identified in the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 and September 2009 rating decisions of the RO. The Veteran requested a videoconference hearing in conjunction with his appeal, but withdrew that request in April 2011. 38 C.F.R. § 20.704(e) (2013). The July 2010 Statement of the Case listed as one of the issues on appeal, "[w]as new and material evidence received to reconsider service connection for arthritis of multiple joints, including arthritis of both elbows and low back." The claim of service connection, identified variously in rating decisions since 1994, had been previously denied in May 2004, August 2001 and November 1994. In March 2008, during the pendency of the current appeal, the RO received the Veteran's service treatment records from his second period of active duty, as well as some medical records from IDT. As the notes are relevant to the claim, and specifically include evidence of multiple lumbar spine injuries, VA must reconsider the original claim. 38 C.F.R. § 3.156(c) (2013). There is no need to determine whether the Veteran has submitted "new and material" evidence in order to reopen a previously denied claim. The Board notes, however, that for purposes of clarity, as the Veteran has diagnoses of arthritis in the knees, shoulders and hips, which are also on appeal, the back and elbow claims have been separated in this remand. The appeal is being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND Unfortunately, all issues on appeal must be remanded for further development. Initially, the record of the Veteran's inactive duty training is incomplete. Personnel information is especially relevant in this case, as two treatment records from the Veteran's inactive duty training suggest separate back injuries that could be related to his pending claim. VA is obligated to obtain the complete service personnel file in this matter. 38 U.S.C.A. § 5103A(c) (West 2002). New examinations are warranted for many of his claims. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that where there is evidence of a current disability, and an indication that the current disability may be related to an event or injury in service, but insufficient competent evidence on file to make a decision on the claim, an examination is warranted). With regard to the claim for sores, although the Veteran has failed to present any evidence relating his sores to active duty, an examination is warranted to include consideration as to whether the Veteran has an undiagnosed illness manifested by skin symptoms under 38 C.F.R. § 3.317, related to his service in the Persian Gulf War. Concerning his claims for sinus problems and hypertension, the treatment records from July 1991, shortly after his separation from his last period of active duty, indicate diagnoses of chronic sinusitis and possible hypertension; the diagnoses shortly after service suggest a possible incurrence during active duty. Id. The sinus disability claim must also be considered under 38 C.F.R. § 3.317, related to service in the Persian Gulf. New examinations are also warranted for his claims of service connection for disabilities of the shoulders, knees and hips. Although the RO provided a July 2010 examination, the resulting opinion only addressed whether his diagnosed arthritis disabilities were related to an undiagnosed illness, secondary to exposures while serving in the Persian Gulf. The examiner failed to address the issue of whether any disability was incurred or aggravated in service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). The RO must reconsider the claims of service connection for arthritis of the back and elbows, in the first instance, based on the March 2008 receipt of the service treatment records. 38 C.F.R. § 3.156(c). As to the claims for increased ratings for the service-connected hearing loss and PTSD, the Veteran has asserted that the disabilities have worsened since his last examination. Under such circumstances, a new examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). The issues of service connection for memory loss and the propriety of the reduction of the rating for hearing loss from 30 percent to 10 percent, must be remanded for the issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App 238, 240 (1999). The Veteran submitted a Notice of Disagreement concerning his memory loss claim in October 2009, but the RO never issued an SOC on the matter. Concerning hearing loss, the Veteran's October 2009 statement included his disagreement with the September 2009 decision that reduced his rating from 30 percent to 10 percent. Thereafter, the RO issued a February 2010 SOC that, without explanation, inaccurately identified the issue as "[e]valuation of bilateral hearing loss currently evaluated as 30 percent disabling," and failed to address the reduction issue. Thus, as the RO has failed to provide a Statements of the Case with regard to with issue, the appeals are not ready to be perfected, and an appropriate SOC must be issued on remand. Finally, the issue of entitlement to a TDIU rating, inferred as aspects of his claims for increased ratings per Rice v. Shinseki, 22 Vet. App. 447 (2009) and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) based on the fact that he has claimed that the disabilities make him unemployable, is inextricably intertwined with the other issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Although at present the Veteran does not meet the criteria for a TDIU rating on a schedular basis at this time, see 38 C.F.R. § 4.16(a) (2013), the RO must also consider TDIU on an extraschedular basis, if warranted following the adjudication of the remaining issues on appeal. 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's entire service personnel file, to include the dates of his inactive duty training. 2. Have the Veteran scheduled for a VA Gulf War examination. The examiner is to be provided access to the claims folder, a copy of this remand, and any relevant records in Virtual VA. In accordance with the latest worksheets for disease associated with exposures during the Persian Gulf War, including undiagnosed illnesses, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability. The examiner must address the following: a) whether, at any time since March 2009, the Veteran had a disease of the skin, including an undiagnosed illness manifesting in sores of the skin; b) whether it is at least as likely as not (a 50 percent probability or greater) that a current disease of the skin manifested by sores (if any) began during service, is due to an event or injury during service (including exposures while serving in the Southwest Theater of Operations), or otherwise is etiologically related to active duty service; c) whether, at any time since March 2009, the Veteran has had a disability of the upper respiratory system, including an undiagnosed illness manifesting in sinus symptoms; and d) whether it is at least as likely as not (a 50 percent probability or greater) that a current disease of the upper respiratory system (if any) began during service, is due to an event or injury during service (including exposures while serving in the Southwest Theater of Operations), or otherwise is etiologically related to active duty service. The examiner must provide a complete rationale in support of any opinions proffered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 3. Have the Veteran scheduled for a VA cardiovascular examination. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. In accordance with the latest worksheets for cardiovascular disease, including hypertension, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability. Thereafter, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that hypertension began during service, is due to an event or injury during service, became manifest to a compensable degree (i.e., evidence of diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more and requiring continuous medication for control) within the first post-service year, or otherwise is etiologically related to active duty service. The examiner must provide a complete rationale in support of any opinions proffered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 4. Have the Veteran scheduled for a VA orthopedic examination. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. In accordance with the latest worksheets for orthopedic disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability of the shoulders, elbows, lumbar spine, hips or knees. Thereafter, with separate opinions for the shoulders, elbows, lumbar spine, hips, and knees, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any identified orthopedic disability began during service, is due to an event or injury during service, became manifest within the first post-service year, or otherwise is etiologically related to active duty service. The examiner must provide a complete rationale in support of any opinions proffered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 5. Have the Veteran scheduled for a VA psychiatric examination. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. In accordance with the latest worksheets for rating the service-connected PTSD, the examiner is to provide a detailed review of the Veteran's pertinent psychiatric history, current complaints, and the nature and extent of any disability. A complete rationale for any opinions expressed must be provided. 6. Have the Veteran scheduled for a VA hearing loss examination. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. In accordance with the latest worksheets for rating hearing loss, the examiner is to provide a detailed review of the Veteran's pertinent history, current complaints, and the nature and extent of any disability. A complete rationale for any opinions expressed must be provided. 7. The Veteran is hereby notified that it is his responsibility to report for the examinations 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. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 8. Undertake all appropriate steps to issue the Veteran an SOC addressing the issues of (a) entitlement to service connection for memory loss, and (b) the propriety of the reduction of the rating for hearing loss from 30 percent to 10 percent. Thereafter, only if the Veteran files a timely substantive appeal (VA Form 9) concerning either or both of those issues, should the Agency of Original Jurisdiction undertake any indicated development, readjudicate the claim(s) in light of the entire evidentiary record, and then issue a Supplemental Statement of the Case, if appropriate. 9. After completing all indicated development, the other issues remaining on appeal should be readjudicated in light of all the evidence of record. With regard to the claim for a TDIU rating, the Agency of Original Jurisdiction should consider whether referral to the Director for extraschedular consideration is warranted. If any benefit sought on appeal remains denied, the Veteran and the representative should be furnished a fully responsive Supplemental statement of the case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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. 2013). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).