Citation Nr: 1531932 Decision Date: 07/28/15 Archive Date: 08/05/15 DOCKET NO. 08-24 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of the Hanta Virus. 2. Entitlement to service connection for irritable bowel syndrome (IBS). 3. Entitlement to service connection for anemia (claimed as blood thinning). 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a right hip disability. 6. Entitlement to service connection for a thoracolumbar spine disability. 7. Entitlement to service connection for a right shoulder disability. 8. Entitlement to service connection for a left ear disability. 9. Entitlement to service connection for a skin disability. 10. Entitlement to service connection for a bilateral ankle disability. 11. Entitlement to service connection for a leishmaniasis. 12. Entitlement to a total disability rating due to individual unemployability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2004 to January 2006 with prior Reserve service. His decorations include a combat action badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal of the June 2007 and June 2009 rating decisions of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's appeals for service connection for a right ear disability and Gulf War Syndrome - Fibromyalgia were granted in a June 2014 rating decision. As these decisions were complete grants for the benefit sought, there remains no issue on appeal. The issues of entitlement to service connection for a right knee disability, right hip disability, thoracolumbar spine disability, right shoulder disability, and a bilateral ankle disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On September 2011, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran, through his authorized representative, that a withdrawal of his appeals for entitlement to service connection for Hanta Virus, irritable bowel syndrome (IBS), anemia (claimed as blood thinning), left ear disability, skin disability, and leishmaniasis was requested. 2. The Veteran is unemployable due to his service-connected disabilities. CONCLUSION OF LAW 1. The criteria for withdrawal of the appeals with respect to the issues of entitlement to service connection for Hanta Virus, irritable bowel syndrome (IBS), anemia (claimed as blood thinning), left ear disability, skin disability, and leishmaniasis by the Veteran (or his authorized representative) have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Appeals An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, in September 2011, the Veteran, through his authorized representative, submitted a written withdrawal of his appeals for Hanta Virus, irritable bowel syndrome (IBS), anemia (claimed as blood thinning), left ear disability, skin disability, and leishmaniasis. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of service connection for these issues and the appeals as to these issues are therefore dismissed. TDIU Since the Board is granting the Veteran's claim for TDIU there is no need to discuss whether the Veteran has received sufficient notice with regard to this claim, given that any error would be harmless. Total Disability Rating Due to Individual Unemployability TDIU is governed by 38 C.F.R. § 4.16 , providing that such a rating may be assigned where the scheduler rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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 (2014). Merits The Veteran's occupational history includes work at the Ohio Department of Corrections since July 1993. The Veteran's educational history includes completion of high school and the requisite training to be a licensed practical nurse (LPN). The Veteran filed his claim for TDIU in July 2008. Here, the Veteran has met the schedular criteria for a TDIU since 2008. In July 2008, he was service-connected for posttraumatic stress disorder (PTSD) at 50 percent, migraine headaches associated with residuals of traumatic brain injury at 30 percent, tinnitus at 10 percent, and residuals of TBI at 10 percent. The Veteran's total disability rating in July 2008 was 70 percent with one disability rated at more than 40 percent, PTSD. The only remaining issue is whether the Veteran was able to secure or follow a substantially gainful occupation as a result of service connected disabilities during the period from July 2008. During this time, the VA examiner provided Global Assessment of Functioning (GAF) scores in the range of 45 to 51. A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 is defined as 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). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). It follows that the Veteran scores have ranged from 45 to 51 a range that either falls within the range that the Veteran would be unable to keep a job. Most recently, the Veteran underwent an evaluation of his PTSD symptoms in a December 2013 VA examination. This VA examiner wrote that the Veteran's PTSD symptoms would have a significant impairment on the Veteran's occupation functioning. Likewise, in a February 2012 VA examination, a VA examiner wrote that the Veteran's migraines headaches would keep the Veteran from driving. This was expounded upon in a December 2013 wrote that the Veteran would have to cease all activity and rest when a bad episode appears, and most recently in April 2014 a VA examiner found that the Veteran headaches are at times to painful to drive a car to go to work and too painful to perform job while at work. In a May 2009 TBI VA examination, a VA examiner wrote that the Veteran used to work as a correction officer in Chillicothe Correctional Institution, but left because of inability to communicate with staff member and inmates, outbursts of anger, and aggressiveness. The Veteran stated in this examination that he handled a couple situations in an inappropriate manner and he was too aggressive and belligerent. The Board reasons that the combination of the Veteran's disabilities during this appeal period, namely his PTSD and migraine headaches and TBI have rendered him unemployable. The VA examiner GAF scores over this time are in average those that reflect an inability to keep a job. This follows the VA examiner's statements that the Veteran's PTSD symptoms cause a significant impact on occupational ability. The Veteran migraines render him incapable of transporting himself or working and the need to leave work because of the severity of the headaches which have only increased in frequency and duration preclude prospects of gainful employment. Therefore, the Board finds that a total disability rating due to individual unemployability is appropriate. ORDER The claim for service connection for Hanta Virus, irritable bowel syndrome (IBS), anemia (claimed as blood thinning), left ear disability, skin disability, and leishmaniasis are dismissed. Entitlement to TDIU is granted, subject to the statutes and regulations governing the payment of monetary benefits. REMAND The Veteran has not been provided a VA examination in connection with his claims for a right knee, right hip, thoracolumbar spine, right shoulder, and bilateral ankle disabilities. The Board finds that this was an error and such examination should have been provided to the Veteran. The Board notes that in the most recent August 2014 Supplemental Statement of the Case (SSOC) the AOJ seems to rely on the fact that the Veteran is service connected fibromyalgia to deny his claim for service connection for his joint disabilities. This conclusion is contradictory to the medical evidence provided in a June 2014 VA addendum opinion, wherein the VA examiner wrote that the joint stiffness was not likely fibromyalgia as fibromyalgia affects the muscles primarily. Outside of this VA opinion on the distinction between the Veteran's fibromyalgia and his joint pain, there has been no VA examination provided to the Veteran to address his contentions that his joint pain is related to his service. The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third element could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the instance case there is competent evidence of disabilities as noted a private May 2007 examination, which includes diagnosis of mild rotator cuff tendinosis, with lateral tears and distal clavicular osteolysis of right shoulder; minor degenerative changes of the thoraolumbar spine; large medial meniscal tear with right knee, with quadriceps tendinosis and mild bicompartmental OA; right hip degenerative changes along with post traumatic changes; and bilateral ankle sprain with post traumatic changes. The proximity of the May 2007 private examination and the Veteran's January 2006 separation from active service coupled with his statements in May 2006, June 2006, and March 2010, that the injuries were incurred in service raise the possibility of a connection between the Veteran's service and his current disabilities. The Board thus finds VA examinations for the Veteran's diagnosed conditions related to the right knee, right hip, thoracolumbar spine, right shoulder, and bilateral ankles are warranted. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. Regardless of the Veteran's response, VA treatment records from the Chillicothe VA Medical Center from 2006 to present should be obtained and associated with the claims file. 2. After the above development is accomplished, schedule the Veteran for an appropriate VA examination(s) with an appropriate VA examiner(s) to determine the etiology of the Veteran's mild rotator cuff tendinosis, with lateral tears and distal clavicular osteolysis of the right shoulder; minor degenerative changes of the thoraolumbar spine; large medial meniscal tear with right knee, with quadriceps tendinosis and mild bicompartmental OA; right hip degenerative changes along with post traumatic changes; and bilateral ankle sprain with post traumatic changes or any other diagnosed conditions related to the right knee, right hip, right shoulder, thoracolumbar spine or bilateral ankles that are identified at the examination(s). The examiner(s) should review the service treatment records (STRs), any post-service records contained in the claims file, and take a detailed history from the Veteran regarding the onset of his mild rotator cuff tendinosis, with lateral tears and distal clavicular osteolysis of the right shoulder; minor degenerative changes of the thoraolumbar spine; large medial meniscal tear with right knee, with quadriceps tendinosis and mild bicompartmental OA; right hip degenerative changes along with post traumatic changes; and, bilateral ankle sprain with post traumatic changes and any continuity of symptoms since that time. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. (A). After considering the pertinent information in the record in its entirety, the examiner is asked to provide individual opinions as to WHETHER IT IS AT LEAST AS LIKELY AS NOT (I.E. 50 PERCENT PROBABILITY OR GREATER) THAT ANY of THE FOLLOWING DISABILITIES WERE INCURRED OR AGGRAVATED BY HIS ACTIVE DUTY: (i). Mild rotator cuff tendinosis, with lateral tears and distal clavicular osteolysis of the right shoulder, and any other diagnosed right shoulder condition; (ii). Minor degenerative changes of the thoraolumbar spine, and any other diagnosed thoracolumbar condition; (iii). Large medial meniscal tear with right knee, with quadriceps tendinosis and mild bicompartmental OA, and any other diagnosed right knee condition; (iv). Right hip degenerative changes along with post traumatic changes, and any other diagnosed right hip condition; (v). Bilateral ankle sprain with post traumatic changes, and any other diagnosed bilateral ankle condition. In providing an opinion the VA examiner(s) should comment on the May 2007 private examination, a March 11, 2005, STR wherein the Veteran complains of back pain, a June 1990 Line of Duty (LOD) report which documents an injury to the Veteran's legs and knee. For any negative opinion, the examiner must identify the medical reasons as to why the evidence does not provide sufficient proof of a relationship between the Veteran's current identified disabilities and his period of military service. If the examiner(s) determines that an opinion cannot be provided without resorting to speculation, the examiner(s) should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner(s) is undertaken so that a definite opinion can be obtained. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to service connection for a right knee disability, right hip disability, thoracolumbar spine disability, right shoulder disability, a bilateral ankle disability. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. 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 that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs