Citation Nr: 1610763 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 12-13 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for pain in multiple joints, to include as due to an undiagnosed illness. 3. Entitlement to an evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) and anxiety disorder, with traumatic brain injury (TBI) residuals, to include cognitive disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 2003 to January 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction of the appeal now resides with the RO in Seattle. In January 2014, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. This appeal was processed in part, using the Virtual VA and the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, 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 appellant if further action is required. REMAND PTSD and Anxiety Disorder with TBI Residuals, to include Cognitive Disorder The Board notes that the Veteran's most recent VA examination for his service-connected PTSD and anxiety disorder with TBI residuals, to include cognitive disorder was conducted over three years ago, in July 2012. In his December 2012 VA Form 9, the Veteran reported that his memory loss, due to his PTSD/TBI prevented him from obtaining gainful employment. He also reported that he believed his cognitive assessment was incomplete, and that his cognitive skills were lower than he was rated. In a January 2013 Statement of Accredited Representative, the Veteran's representative noted that it was the Veteran's contention that the rating for his psychological/cognitive disorder was "no longer commensurate with the severity of the condition." Additionally, in an April 2013 statement, the Veteran reported that his TBI and PTSD prevented him from seeking and retaining employment, and prevented him from performing some activities of daily living. In this regard, he also reported that his wife had to handle their domestic responsibilities and had to remind him to take care of himself. The Board also notes that the Veteran has recently been granted entitlement to a total disability rating, based on individual unemployability (TDIU), due to his service-connected disabilities, including his service-connected PTSD and anxiety disorder with TBI residuals. See November 2013 rating decision. Social Security Administration records also show that he is unable to work due to his service-connected disabilities, including his psychological/cognitive disorder. As such, the Board has an obligation to have the Veteran reexamined to reassess the severity of his psychiatric/cognitive disorder. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007) (when a veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment). Low Back The Veteran contends that he has joint pain, including low back pain, related to heavy lifting and walking while carrying a large amount of weight during active duty in the Persian Gulf. Service treatment records do not show complaints, treatment, or diagnosis of a back disorder. However, the Veteran's DD-214 shows that he served for 5 years and 8 months, as an Infantryman during his active military service. This position would have required the Veteran to carry heavy equipment and ammunition. Thus, the Board finds that the conditions of his service are consistent with his reports of injuring his back during active service. 38 U.S.C.A. § 1154(a). On VA examination in October 2009, the Veteran complained of intermittent, mild to moderate low back pain, which he reported started in service, around 2004 to 2005, which gradually increased. Physical examination revealed evidence of normal thoracolumbar spine structures overall. Range of motion testing revealed forward flexion to 90 degrees, and combined range of motion to 240 degrees. Repetitive motion testing failed to reveal evidence of associated pain, lack of endurance, fatigue, weakness, or incoordination, with any observed degree of a functional loss of motion. Testing of neurological functioning failed to substantiate evidence of an associated neurological dysfunction, to include evidence of diminished sensation, muscle atrophy, fine motor dysfunction, gross motor dysfunction, hyposensitive reflexes or hypersensitive reflexes affecting either the upper or lower extremities. The only diagnosis made was mechanical low back pain. On VA examination in March 2011, he reported that prior to and during service, he experienced occasional mild low back aches during strenuous activities, which he treated by stretching and with Motrin. He also reported that in March 2010, he was seen at the VA Medical Center in Central Texas, with complaints of back pain that he developed two months prior, while pushing his daughter on a swing, and that he had to crawl back to his house and felt sore for weeks. He complained of mild stiffness and achiness every morning. On physical examination, he had full and pain-free range of motion. The examiner diagnosed a low back strain, which he opined was unrelated to the Veteran's military service. The examiner did not give a rationale for his negative opinion, and therefore, the Board finds that it lacks probative value. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that a remand for a new examination and medical opinion as to the etiology of any currently diagnosed low back disability is necessary. 38 C.F.R. § 4.2 (2015). The Board notes that in his July 2011 notice of disagreement, the Veteran reported that the incident with his daughter in March 2010 just exacerbated the back pain he was already experiencing prior to that injury. Pain in Multiple Joints The Veteran contends that he has joint pain in his knees, ankles, wrists and feet, due to an undiagnosed illness, as a result of his service in the Persian Gulf. He also contends that his joint pain is related to heavy lifting and walking while carrying a large amount of weight during active duty. The Board notes that the Veteran has been granted service connection for retropatellar pain syndrome of the bilateral knees. See January 2014 Board decision. Therefore, further consideration of this issue is not necessary. Furthermore, the Veteran was noted on examination in 2009 to have mild flat feet. Therefore, as there is a confirmed diagnosis of a bilateral foot disability of record, there is no basis to grant service connection for a disability of the feet, due to an undiagnosed illness. However, the record does not reflect that the Veteran has ever been diagnosed with an ankle or wrist disability. On VA general medical examination in April 2009, the examiner noted that the Veteran had very mild flat feet, without pronation, deformity, malalignment, or plantar arch tenderness. Bilateral knees and ankles were found to have full range of motion without complaints. On VA examination in March 2011, the Veteran reported a history of knee pain that began with marching, running, and military training. The examiner diagnosed retropatellar pain syndrome, bilateral knee, related to service training and duties. There were no complaints noted on examination involving the ankles, feet, or other joints. Treatment records from the Central Texas VA Health Care System show complaints of ankle and knee pain in June 2009. In April 2011, the Veteran reported knee pain and in August 2011, complaints of occasional arthralgia in all joints, mainly in wrists, ankles, and knees were reported. No definitive diagnosis related to the reported wrist or ankle pain has been made. Service connection may be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117 (West 2014); 38 C.F.R. § 3.317(a)(1) (2015). A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). Service records show that the Veteran served in Iraq from November 15, 2003 to October 15, 2004 and from June 29, 2006 to September 12, 2007. There is no medical opinion of record that addresses whether the Veteran's ankle and wrist pain are the result of an undiagnosed illness, related to the Veteran's active duty in the Persian Gulf. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). In light of the Veteran's status as a Persian Gulf Veteran with complaints of pain in the ankle and wrist joints, and the absence of determination of any known clinical diagnosis attributed to the claimed ankle and wrist symptoms, the Board finds that a VA examination report and medical opinion should be afforded to properly adjudicate this claim on appeal. The appellant is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Accordingly, the case is REMANDED for the following action: 1. With any required assistance of the appellant, obtain any outstanding VA and/or private medical records and associate them with the claims file/e-folder. 2. Following completion of the above, the Veteran should be scheduled for VA examinations to determine the current severity of his PTSD and anxiety disorder with TBI residuals. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. The examiner should specifically provide the following: (a) Provide a full multiaxial diagnosis with a global assessment of functioning score. (b) Specifically discuss the effects of the Veteran's PTSD and anxiety disorder with TBI Residuals, to include cognitive disorder on his occupational and social functioning. A complete rationale should be given for all opinions and conclusions expressed. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed low back disability and pes planus. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. All medically indicated tests, including X-rays, should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed low back disability and pes planus is related to service. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed ankle and wrist disabilities. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. All medically indicated tests, including X-rays, should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner should thoroughly address the following: a). State whether the Veteran has a clinically diagnosed ankle or wrist disability. If not, the examiner is requested to comment as to whether the Veteran's symptomatology represents signs and symptoms of, or a manifestation of, an undiagnosed illness or a chronic multisymptom illness, or whether it is attributable to a known clinical diagnosis. b). If the symptomatology of the claimed ankle and wrist disabilities are attributable to a known clinical diagnosis, the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's ankle or wrist disabilities are related to service. c). If the Veteran's claimed ankle and/or wrist symptoms are not due to a specific disease entity, opine as to whether they represent an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's Persian Gulf War service, or a medically unexplained chronic multisymptom illness, which is defined by a cluster of signs or symptoms. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Thereafter, the issues on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case (SSOC) which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto. 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 2014). _________________________________________________ GAYLE E. STORMMEN 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) (2015).