Citation Nr: 1516145 Decision Date: 04/14/15 Archive Date: 04/21/15 DOCKET NO. 10-13 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to restoration of a 60 percent rating for service-connected hyperparathyroidism, rated as noncompensably disabling beginning on August 1, 2011, to include whether the reduction was proper. 2. Entitlement to service connection for a back disorder (including the lumbar, thoracic, and cervical spine) to include as secondary to service-connected hyperparathyroidism. REPRESENTATION Appellant represented by: John S. Berry, Private Attorney ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from December 1987 to August 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from August 2010 and May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Detroit, Michigan that denied the benefits sought on appeal. The Veteran appealed those decisions and the case was referred to the Board for appellate review. In a February 2013 decision, the Board determined that the reduction of the Veteran's hyperparathyroidism from 60 percent to noncompensable was proper, reopened a previously denied claims for service connection for posttraumatic stress disorder (PTSD), and also denied service connection for chronic fatigue syndrome, a sleep disorder, and a back disorder. At such time, the Board also remanded the issues of entitlement to service connection for bilateral hearing loss and an acquired psychiatric disorder (to include the reopened claim for PTSD) as well as a claim for a total disability rating based on individual unemployability (TDIU) for additional development. Thereafter, the Veteran appealed the portion of the decision that denied restoration of a 60 percent rating for the Veteran's rating for hyperparathyroidism and denied service connection for a back disorder to the United States Court of Appeals for Veterans Claims (Court). In an April 2014 Memorandum Decision, the Court vacated the February 2013 decision with respect to the hyperparathyroidism and back disorder issues. Notably, in the February 2013 decision, the Board found that issue of entitlement to service connection for a gastrointestinal disorder had been raised by the record but the Board did not have jurisdiction of it. As such, this issue was referred to the Agency of Original Jurisdiction (AOJ). However, as discussed in the April 2014 Memorandum Decision, as the diagnostic code for hyperparathyroidism provides that post-surgery residuals (to include digestive symptoms) be rated under an appropriate diagnostic code, the Board now finds that it does have jurisdiction of the claim for service connection for a gastrointestinal disorder as part of the hyperparathyroidism issue currently on appeal. Relevant to the Veteran's claim of entitlement to service connection for a back disorder, the Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Significantly, the April 2014 Memorandum Decision notes the Veteran's argument that, pursuant to Clemons, his claim for benefits for a back condition encompassed a claim for benefits for two cervical spine disorders diagnosed by VA examiners in 2010, which the Board failed to adjudicate. In light of the Court's decision in Clemons as well as the Veteran's allegations regarding the cervical spine, the Board has recharacterized the issue on appeal as entitlement to service connection for a back disorder (including) the lumbar, thoracic, and cervical spine. Furthermore, in a December 2014 statement, the Veteran's representative argued that the Veteran's back disorder is secondary to the residual effects of 12 years of untreated hyperparathyroidism prior to corrective surgery. Significantly, the Veteran's representative wrote that a 2003 bone scan, which was taken within two years of his surgery to remove his parathyroid adenoma, revealed bone deterioration of the lumbar spine sufficient to result in a diagnosis of osteopenia in a male at the young age of 35 years. As such, the claim for a back disorder has been broadened to include as secondary to service-connected hyperparathyroidism. Relevant to the issues remanded in February 2013, the Board notes that the development ordered has not yet been completed and they have not been recertified to the Board. Therefore, those issues are not properly before the Board at this time. The Board notes that, in addition to the paper claims file, there are two separate paperless claims files associated with the Veteran's claim, a Virtual VA file and a Veterans Benefits Management System (VBMS) file. A review of the documents in Virtual VA reveals VA treatment records dated through December 2013 as well as a VA psychiatric examination report dated in June 2014 a review of the documents in VBMS also reveals the June 2014 VA psychiatric examination report. The remaining documents in both Virtual VA and VBMS are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, the April 2014 Memorandum Decision indicates that a remand is required in this case due to perceived deficiencies within the Board's analysis in the February 2013 decision. With regard to the hyperparathyroidism issue, by way of background, the Veteran's service treatment records show treatment for renal calculi. He was diagnosed with hyperparathyroidism in approximately 2000 and a VA examiner related the post-service diagnosis of hyperparathyroidism to the Veteran's in-service gastrointestinal complaints. As such, by rating decision dated in November 2001, the RO granted service connection for hyperparathyroidism, assigning a 60 percent disability rating effective January 31, 2001. The Veteran subsequently underwent parathyroidectomy surgery in December 2001 and, by rating decision dated in April 2004, the RO continued a 60 percent disability rating for hyperparathyroidism. In June 2009, the Veteran submitted claims for service connection for several other disorders and, based on examination reports obtained pursuant to these claims, the RO proposed to decrease the Veteran's hyperparathyroidism from 60 percent to noncompensable by rating decision dated in August 2010. This reduction was effectuated by rating decision dated in May 2011. The Veteran's service-connected hyperparathyroidism has been rated under 38 C.F.R. § 4,119, Diagnostic Code (DC) 7904. DC 7904 provides for the assignment of a 10 percent rating where continuous medication is required for control. A 60 percent rating is warranted where there are gastrointestinal symptoms and weakness. A 100 percent rating is warranted where there is generalized decalcification of bones, kidney stones, gastrointestinal symptoms (nausea, vomiting, anorexia, constipation, weight loss or peptic ulcer), and weakness. A note accompanying that diagnostic code indicates that following surgery or treatment, hyperparathyroidism is to be evaluated as digestive, skeletal, renal or cardiovascular residuals or as endocrine dysfunction. Significantly, in August 2010 the Veteran underwent VA examination for his thyroid condition. During that examination the Veteran reported numerous diffuse symptomatologies. Physical examination did not reveal any neck mass or nodule. The examiner noted that no body systems were affected by an endocrine disorder. There was mild tenderness over the right lower quadrant. The Veteran reported daily bouts of nausea and occasional vomiting, but there was no evidence of constipation, indigestion or heartburn. Bowel sounds were normal and there was no palpable mass or abdominal guarding. A hemic/lymphatic examination was entirely normal. The examiner stated that the Veteran's hyperparathyroidism was completely cured, that there was no related bone decalcification, that there was no evidence of impaired renal function and that there were no effects from that condition on occupational capacity or usual daily activities. Based, in part, on the findings in the August 2010 thyroid examination, the Board determined that the reduction of the Veteran's hyperparathyroidism from 60 percent to noncompensable was proper as the Veteran's hyperparathyroidism had been cured. The Veteran does not dispute that part of the Board's decision. Rather, he argues that he should be rated on his residual digestive, skeletal, renal, and endocrine problems pursuant to the note following 38 C.F.R. § 4.119, DC 7904 ("Following surgery or treatment, hyperparathyroidism is to be evaluated as digestive, skeletal, renal or cardiovascular residuals or as endocrine dysfunction."). The April 2014 Memorandum Decision notes that a July 2010 VA examination report noted some "complications of [the Veteran's hyperparathyroidism] disease," including, inter alia, joint pain, nausea, and vomiting. Furthermore, as above, the April 2014 Memorandum Decision notes that, in the February 2013 Board decision, the Board referred an issue of entitlement to service connection for a gastrointestinal disorder, finding that it lacked jurisdiction over that matter. The Court was unclear why the Board found that had no jurisdiction over a claim for a gastrointestinal disorder, particularly given that DC 7904 provides that postsurgery residuals should be rated under the appropriate diagnostic codes. Given the above, the Board finds that a remand is necessary to afford the Veteran a VA examination to determine whether the Veteran has any residuals of his hyperparathyroidism disorder. With regard to the back disorder issue, the Veteran's service treatment records show that he was diagnosed with a mild thoracic strain in May 1990 but are, otherwise, negative for a chronic back disorder. Private treatment records from December 1997 indicate that the Veteran was negative for any costovertebral angle tenderness. Right flank pain was reported, but this was found to be related to kidney stones and hyperparathyroidism. Records from January 2003 indicate that the Veteran reported pain in his upper back and neck. Records from the Social Security Administration from January 2003 indicate findings of lumbar osteopenia. In written statements submitted in February 2005, the Veteran's wife and mother reported that the Veteran was healthy before he entered service and that he has had continuous health problems since his release from service. Significantly, in his June 2009 claim for service connection for a back disorder, the Veteran wrote that he injured his back in service and has experienced back pain since this in-service injury. In July 2010 the Veteran was afforded a VA examination in support of his claim. During that examination the Veteran stated his belief that his physical symptoms are due to receiving the anthrax vaccine in service. The Veteran stated that he experienced intermittent lower lumbar pain and weakness. The examiner found that there was no cause and effect relationship between the anthrax vaccine and any of the Veteran's chronic symptoms. Physical examination revealed tenderness over the right scapular area. Range of motion studies of the lumbar spine revealed flexion to 90 degrees, extension to 30 degrees, bilateral rotation to 30 degrees and bilateral lateral flexion to 30 degrees. There was no pain on motion. Radiographic imagery revealed cervical spondylosis and degenerative disc disease. There was mild narrowing of L4-L5 and L5-S1 disc interspaces and small osteophyte arising from the anterior margin of the L4 and L5 lumbar vertebrae. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine with associated spinal pain. In an August 2010 addendum a the VA examiner stated that the Veteran's degenerative disc disease of the lumbar spine was not caused by or a result of active service, noting that there was no evidence of an ongoing back condition during service, that the Veteran did not develop chronic back pain until 1995, that the Veteran sustained a post-service back injury in 1999 and that the Veteran's current lumbar condition is due to his advancing age and the post-service injury to the spine. In the April 2014 Memorandum Decision, the Court noted that the Board failed to take into account and consider the Veteran's lay statements that he continued to suffer from problems with his back since his in-service injury in May 1990. In this regard, the Veteran is competent to report symptoms that he experienced and continuity of these symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Furthermore, the Court noted that, according to the Veteran, his claim for benefits for a back condition encompassed a claim for benefits for two cervical spine disorders diagnosed by VA examiners in 2010. Finally, as above, in a December 2014 statement, the Veteran's representative argued that the Veteran's back disorder is secondary to the residual effects of 12 years of untreated hyperparathyroidism prior to corrective surgery. Accordingly, the Board finds that on remand, the Veteran should be afforded a new VA examination to obtain an adequate medical opinion regarding the nature and etiology of his back disorders. The Board specifically notes that the Veteran is competent to report a continuity of back symptomatology since his separation from active service. See Washington v. Nicholson, 19 Vet. App. 363 (2005). Thus, the Board is primarily concerned with whether there is a continuity of symptoms since the incurrence of a claimed injury or disease in service, rather than with a continuity of treatment. See 38 C.F.R. § 3.303(b). Therefore, on remand, the VA examiner should recognize this lay evidence as potentially competent to support the presence of disability even where it is not fully corroborated by contemporaneous medical evidence, and must comment on this reported continuity of symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, a review of the record shows that the most recent VA treatment records are dated in December 2013. Given the need to remand for a new examination and the Memorandum Decision's concern regarding gastrointestinal residuals of the Veteran's service-connected hyperparathyroidism, any outstanding VA medical records dated after December 2013 should be obtained for consideration in the Veteran's appeal. Finally, while on remand, the Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for his claimed disorders. Thereafter, all identified records should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any VA or non-VA healthcare provider who has treated him for his claimed residuals of hyperparathyroidism and back disorder. After securing any necessary authorization from him, obtain all identified treatment records, to include all outstanding VA treatment records dated from December 2013 to the present. All reasonable attempts should be made to obtain any identified records. For private records, after obtaining any necessary authorization from the Veteran, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, if any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above, the Veteran should be afforded an appropriate VA examination to determine the current nature of his hyperparathyroidism. The record, to include a copy of this Remand, must be made available to, and be reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify all current diagnoses referable to residuals of hyperparathyroidism, particularly digestive, skeletal, renal, or cardiovascular residuals. The examiner should also indicate whether the Veteran experiences endocrine dysfunction as a result of his hyperparathyroidism. In offering such opinion, the examiner should consider the July 2010 VA examination report noting some "complications of [the Veteran's hyperparathyroidism] disease," including, inter alia, joint pain, nausea, and vomiting. 3. After the above development has been completed and all outstanding treatment records have been associated with the claims file, the Veteran should be afforded an examination with an appropriate medical professional to ascertain whether any current back disorder (to include the lumbar, thoracic, and cervical spine) is related to service or a service-connected disability . The claims file must be made available for review of his pertinent medical and other history, particularly the records of any relevant treatment. The examination should include any necessary diagnostic testing or evaluation. Based on a physical examination and comprehensive review of the claims file, the examiner is asked to opine whether it is at least as likely as not any back disorder the Veteran has (to include the lumbar, thoracic, and cervical spine) is related to his military service, to include his documented in-service mild thoracic strain in May 1990, as well as whether such back disorder is caused or aggravated by his service-connected hyperparathyroidism. In providing any opinion, the examiner should acknowledge and discuss the significance, if any, of the evidence of record that the Veteran was noted to suffer a mild thoracic strain during his service, and that he has competently reported having a continuity of back symptomatology since his separation from service. The examiner should also consider the January 2003 findings of lumbar osteopenia, the July 2010 VA examination report along, and the August 2010 addendum report. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).