Citation Nr: 1521873 Decision Date: 05/21/15 Archive Date: 06/01/15 DOCKET NO. 13-19 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for vocal cord dysfunction. 3. Entitlement to service connection for celiac disease. 4. Entitlement to service connection for asthma. 5. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to May 1991, including service in Southwest Asia from January 1991 to May 1991. He also served in the Utah Army National Guard and had a period of active duty for training from June 1987 to November 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2012 and December 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2015. At the hearing, the Veteran submitted additional evidence with a waiver of RO review. See 38 C.F.R. § 20.1304(c) (2014). 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 for TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. During the January 2015 hearing, the Veteran's unemployability was raised. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue on appeal. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system. Any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND The claims on appeal are being remanded for outstanding records and additional VA examinations and medical opinions. Outstanding Records The Veteran's electronic folder in Virtual VA includes VA treatment records dated from April 2002 to June 2013. See CAPRI records received on June 3, 2013. These records reference outside medical records that were scanned into VistA imaging dated from April 2002 to August 2011. See id. at 593-599. These records have not been associated with the claims file. Therefore, pursuant to the duty to assist, the Board finds that a remand is required so that these records can be associated with the claims file. See 38 C.F.R. § 3.159(c)(2) (2014). In addition, while on remand, any outstanding treatment records should be obtained. PTSD The Veteran has contended that his service-connected PTSD warrants a higher rating. He was last examined for PTSD in September 2012. At that time, the Veteran denied having suicidal ideation; the diagnoses were PTSD and bipolar affective disorder and a global assessment of functioning (GAF) score of 60 was assigned. During the Board hearing, he testified that he has had thoughts of hurting himself and had attempted suicide twice and been hospitalized. See Board Hearing Transcript (Tr.) at 17. Because there is evidence suggesting a possible worsening, the Board finds that an additional VA examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected PTSD. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Lumbar Spine Disorder The Veteran has contended that his current low back disorder is related to carrying heavy equipment and injured people during his service as a combat medic. See Board Hearing Tr. at 23-25. He has stated that he first began having back problems in 1991 or 1992 and has denied having any back problems prior to his active duty service. See, id., at 25, 31. The Veteran's service treatment records indicate that he reported having a history of recurrent back pain and seeing a chiropractor for low back problems. See Reports of Medical History dated in October 1986, March 1991, April 1991, and May 1991. However, at each examination, his spine was clinically normal. See Reports of Medical Examination dated in October 1986, March 1991, April 1991, and May 1991. After separating from active duty service in May 1991, the Veteran's records from the Social Security Administration (SSA) indicate that he reported that his back problems began in 2005 and that his symptoms were insidious in onset and progressively worsened. See June 2007 record from Dr. S.W. He had a lumbar discectomy in August 2006, and multiple surgeries since then. The Veteran was medically evaluated in June 2012 at which time the diagnosis was degenerative disc disease of the lumbar and thoracic spine. Another VA examiner provided a medical opinion in November 2012. The examiner opined that the Veteran's back condition clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression during service. The Board finds that this opinion lacks rationale. There are no findings of degenerative disc disease prior to or during the Veteran's active duty service. In fact, on clinical evaluation, his spine was normal. Accordingly, VA requires a medical opinion regarding direct service connection rather than aggravation. Thus, the Board finds that an additional opinion is needed. Celiac Disease, Vocal Cord Dysfunction, and Asthma The Veteran has contended that his celiac disease is etiologically related to his deployment to the Southwest Asia theater of operation and that he had no problems with his digestive tract prior to deployment. See Board Hearing Tr. at 45. In addition, he has contended that his vocal cord dysfunction and asthma are a result of exposure to oil well fires during his deployment. See Board Hearing Tr. at 36. The Veteran was medically evaluated in June 2012, and the diagnoses were celiac disease (since June 2007), asthma (since April 2011), and vocal cord dysfunction (since 2010). Another VA examiner provided medical opinions in November 2012. The examiner opined that the Veteran's asthma and vocal cord dysfunction were less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner also opined that the Veteran's celiac disease was not caused by an episode of gastroenteritis that occurred in March 1991. In support of each opinion, the examiner stated that "Per literature search of UpToDate, VA archives, and Pub Med, there is no objective evidence of [the claimed disorders] being caused by a specific exposure event experienced by the Veteran during service in Southwest Asia." The Board finds that the foregoing rationale is inadequate, as it does not address the Veteran's lay statements that he was exposed to oil fires during service or his ongoing subjective complaints. Therefore, the Board finds that a remand is needed for supplemental opinions. TDIU Lastly, as noted above, the issue of entitlement to TDIU has been raised. Under these circumstances, the AOJ should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his PTSD, low back, vocal cord dysfunction, celiac disease, and asthma. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. The AOJ should also associate with the claims file the outside medical records that were scanned into VistA imaging dated from April 2002 to August 2011. See Virtual VA, CAPRI records received on June 3, 2013, pages 593-599. The AOJ should also obtain any outstanding and relevant VA treatment records, including from the VA Salt Lake City Health Care System dated from April 2014 to the present. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected PTSD. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD and depressive disorder under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. In particular, he or she should indicate whether the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or, total occupational and social impairment. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should refer the Veteran's claims file to the November 2012 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for supplemental opinions as to the nature and etiology of the Veteran's lumbar spine disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. The Veteran has contended that his degenerative disc disease is related to carrying heavy equipment and injured people during his service as a combat medic. See Board Hearing Tr. at 23-25. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current lumbar spine disorder is causally or etiologically related to his active service from November 1990 to May 1991. In rendering this opinion, the examiner is reminded that the Veteran is presumed to have been sound condition at entry into service except as to the defects, infirmities, or disorders noted at the time of such entry. There is no evidence that degenerative disc disease preexisted service or was noted at entry. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The AOJ should refer the Veteran's claims file to the November 2012 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for supplemental opinions as to the nature and etiology of the Veteran's celiac disease, asthma, and vocal cord dysfunction. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A. Celiac Disease The Veteran has contended that his celiac disease was incurred in or is etiologically related to his deployment to the Southwest Asia theater of operations. See Board Hearing Tr. at 45-48. The examiner should state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's celiac disease was incurred in or is otherwise causally or etiologically related to his active service from November 1990 to May 1991, including any environmental exposures during his service in Southwest Asia, such as oil fires. In so doing, the examiner should address any prior diagnoses of record, including acid peptic disease, gastroenteritis, and hiatus hernia, and the Veteran's specific contentions. B. Asthma and Vocal Cord Dysfunction The Veteran has contended that his asthma and vocal cord dysfunction were incurred in or are etiologically related to exposure to burning oil wells during his deployment to the Southwest Asia theater of operations. See Board Hearing Tr. at 36-40. The examiner should state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's asthma and vocal cord dysfunction were incurred in or are otherwise causally or etiologically related to his active service from November 1990 to May 1991, including any environmental exposures during his service in Southwest Asia, such as oil fires. In so doing, the examiner should address any prior diagnoses of record, to include reactive airway disease, and the Veteran's specific contentions. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The AOJ should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the AOJ may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).