Citation Nr: 1428071	
Decision Date: 06/20/14    Archive Date: 06/26/14

DOCKET NO.  08-34 769	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for panniculitis.  

2.  Entitlement to service connection for bilateral shin splints.  

3.  Entitlement to an initial compensable disability rating for left knee retropatellar pain syndrome.  

4.  Entitlement to an initial disability rating in excess of 10 percent for prostatitis.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from December 1986 to May 2007.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

This case was previously remanded by the Board in December 2009 to provide a hearing before a member of the Board.  The Veteran testified at a hearing at the RO before the undersigned Acting Veterans Law Judge of the Board (Travel Board hearing) in April 2010.  A transcript of that hearing has been associated with the claims file.  

In September 2010, the Board remanded the claims for service connection for panniculitis and bilateral shin splints and an initial rating for the left knee.  The Board also denied claims for service connection for abnormal cholesterol and a positive PPD skin test for tuberculosis and granted a claim for an initial rating for the lumbar spine, and thus, these issues are no longer in appellate status. 

The Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems reflect that additional medical and procedural records have been added to the present appeal and these records have been reviewed.

The issues of service connection for panniculitis, an initial compensable disability rating for left knee retropatellar pain syndrome and an initial disability rating in excess of 10 percent for prostatitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Resolving all doubt in favor of the Veteran, his bilateral shin splints were incurred during his active service.


CONCLUSION OF LAW

The criteria for the establishment of service connection for bilateral shin splints are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA.  See 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159 (2013).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision.  

Analysis

After a careful review of the record, and resolving all doubt in favor of the Veteran, the Board has determined, based upon the probative evidence of record, that the Veteran has a current disability of bilateral shin splints which were incurred during his active service.  Therefore, service connection is warranted for shin splints.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection requires competent evidence showing:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

In statements and testimony throughout the duration of the appeal, the Veteran has maintained that his bilateral shin splints first appeared while he was on active duty and have continued since that time, persisting with increased activity.  

The Board finds that the Veteran's lay statements that his bilateral shin splints have continued since his active service are competent, credible and ultimately probative.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see Baldwin v. West, 13 Vet. App. 1 (1999).  

Service treatment reports reflect the Veteran was treated for shin splints on several occasions in service, including in March 1997, May 1997 and June 1997.  An August 2007 VA examination reflects that the Veteran was diagnosed with bilateral shin splints, characterized as resolved.  The examiner also diagnosed the Veteran with bilateral pes planus, which was noted as contributing to shin splints and plantar fasciitis.  A December 2010 VA joints examination reflects the Veteran was diagnosed with shin splints, characterized as quiescent.  In an October 2011 VA addendum, the December 2010 VA examiner found that the Veteran's complaints of shin splints in service were related to his military service.  He explained that the Veteran was seen twice in the military for shin splints in March and May 1997 and that shin splints usually resolved once the precipitant was resolved, in this case the Veteran's running in service with marching gear.  The examiner also noted the Veteran had been walking two miles, twice a day, for recreational purposes and to stay fit, with no complaints of shin splints.  

The Board finds that the Veteran's lay statements, the VA examinations and the October 2011 VA addendum, taken together, place the evidence in relative equipoise.  Therefore, the Board resolves all doubt in favor of the Veteran, and finds the probative evidence of record demonstrates he has a current shin splint disability that had its onset during active service.  Thus, service connection for bilateral shin splints is warranted.  38 C.F.R. §§ 3.102, 3.303 (2013).  See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for bilateral shin splints is granted.  


REMAND

Supplemental Opinion Needed for Claim for Service Connection for Panniculitis

Once VA undertakes the effort to provide an examination in response to a claim of entitlement to service connection for a particular disability, irrespective of whether statutorily obligated to do so, VA must ensure the examination is adequate, else, notify the claimant why an adequate examination cannot or will not be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

In the September 2010 remand, the Board instructed the RO to schedule the Veteran for a VA gastroenterology examination to determine the etiology of his panniculitis.  The examiner was specifically asked to determine all of the Veteran's current gastroenterology disabilities and opine as to whether it is at least as likely as not that any currently diagnosed gastrointestinal disorder is related to the Veteran's military service.  In addition, the remand instructed that the examiner offer a complete rationale, citing pertinent in-service and/or post service evidence if necessary, for any opinion expressed.  

In a December 2010 VA examination of the intestines, the VA examiner provided diagnoses of irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD).  The Board observes that the Veteran is already service-connected for IBS.  The examiner opined that GERD was not present in service and not related to service, however, no explanatory rationale for this opinion was provided.  Therefore, a remand for a supplemental opinion with accompanying rationale is necessary regarding the diagnosis of GERD.  In addition, it appears that the Veteran has been diagnosed with diverticulosis throughout the period of the appeal, and a supplemental opinion and rationale are also necessary for this disability.   

New VA Examination for the Left Knee Disability

As the Veteran was last provided a VA examination for his service-connected left knee disability in December 2010, approximately three and a half years ago, another examination is needed reassessing the severity of this disability.  Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPCGPREC 11-95; see also 38 C.F.R. § 3.327.

An Initial Disability Rating in Excess of 10 Percent for Prostatitis

As for the claim for an initial disability rating in excess of 10 percent for prostatitis, the Board observes that the Virtual VA and VBMS virtual claims processing systems both indicate that the Veteran filed a timely notice of disagreement (NOD) in January 2013, in response to a November 2012 rating decision, which granted service connection for prostatitis and assigned an initial noncompensable disability rating.  See Virtual VA and VBMS paperless claims processing systems.  The January 2013 NOD has not been associated with the record.  In an April 2014 Decision Review Officer (DRO) decision, the Veteran's prostatitis was awarded an initial 10 percent disability rating.  The decision stated that the award of 10 percent constituted a full grant of the benefits sought on appeal for this issue, as the Veteran reported in his NOD that he should have received a 10 percent evaluation for this disability.  

As there is no copy of the January 2013 NOD in the paper claims file or in the virtual claims processing systems, it is unclear from the record whether the Veteran specifically requested a 10 percent disability rating only for his prostatitis, or whether he intended to seek a disability rating higher that the 10 percent assigned.  Therefore a copy of the January 2013 NOD must be associated with the claims file for review.  

If the January 2013 NOD cannot be located, a statement of the case (SOC) concerning this claim should be issued, providing the Veteran with an opportunity to also file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of this claim to the Board.  See Manlincon v. West, 12 Vet. App. 238 (1999).

Obtain Additional Private and VA Medical Records

Lastly, as the file reflects that the Veteran has received continuing treatment from VA and that the most recent VA medical records in the file date up to January 2014, the records of his more recent evaluation and treatment also need to be obtained and considered.  38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Per his statement in an October 2008 VA outpatient treatment report, the Veteran has reported receiving private medical treatment by his primary care physician through TRI Care, and the last private medical records associated with the claims file are from 2008.  Therefore, an attempt should be made to obtain these records.  38 C.F.R. § 3.159(c)(1).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies, including especially concerning VA medical records from January 2014 and private medical records from 2008 and thereafter.  

2.  Upon receipt of these additional records, if available, arrange for the VA examiner who performed the December 2010 examination of the Veteran's gastrointestinal disorders, or someone else with the necessary qualifications, to review the claims file and provide a supplemental explanation for the diagnoses of GERD (diagnosed in the December 2010 VA examination) and diverticulosis (diagnosed in VA medical records).  The claims file, including a copy of this remand, must be made available for review.

In particular, the examiner is asked to address the following:  

(a).  Please discuss the past diagnoses in the VA medical records related to the Veteran's diverticulosis and whether it is at least as likely as not that this disability: (a) was incurred during the Veteran's active service; or (b) caused by or otherwise related to any incident during the Veteran's active service.  

(b).  Please also discuss whether it is at least as likely as not that the currently diagnosed GERD: (a) was incurred during the Veteran's active service; or (b) caused by or otherwise related to any incident during the Veteran's active service.  

It is absolutely essential the examiner discuss the underlying rationale for his/her opinions, whether favorable or unfavorable to these claims, if necessary citing to specific evidence in the file supporting conclusions.  In so doing, the examiner is asked to please consider the service treatment records, the post-service medical evidence, the findings in the report of the December 2010 VA examination, the examiner's personal medical expertise and the history the Veteran recounts (which he is competent to report).  

3.  Thereafter, schedule the Veteran for a VA examination of the left knee.  The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination.  The examination report is to contain a notation that the examiner reviewed the claims file.  

All necessary testing should be performed, including x-rays.  

The examiner asked to comment on the degree of severity of the Veteran's service-connected left knee disability, and its effect on his employment and activities of daily living.  

The examiner is also asked to comment on the following:  

(a).  The range of motion of the knee and where pain begins with flexion and extension; identify whether there is objective evidence of painful motion.  

(b).  Whether there is any additional limitation of range of motion with resulting limitation of motion or function due to weakness, fatigability, incoordination, etc.; and

(c).  Whether arthritis/degenerative joint disease is present.

Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence.

4.  Ensure the examiners' opinions are responsive to these determinative issues of the levels of current severity of the disabilities on appeal.  If not, return the report(s) for all necessary additional information.  38 C.F.R. § 4.2.

5.  Locate and associate with the claims file, a copy of the January 2013 NOD.  

If the January 2013 NOD cannot be located, a statement of the case (SOC) concerning the claim for an increased initial disability rating for prostatitis should be issued.  

If, and only if, the Veteran files a timely substantive appeal with respect to the claim for an increased initial disability rating for prostatitis should the claim be returned to the Board for further appellate consideration.  

6.  Then readjudicate the claims in light of this and all other additional evidence.  If the claims continue to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims.  

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. 2013).




______________________________________________
SARAH B. RICHMOND
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs