Citation Nr: 1611049 Decision Date: 03/18/16 Archive Date: 03/23/16 DOCKET NO. 10-29 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include cervical intervertebral disc syndrome (IVDS) with degenerative arthritic changes and herniated nucleus pulposus (HNP) affecting the right arm, hand, and fingers. 2. Entitlement to service connection for Hepatitis B. 3. Entitlement to a compensable rating for allergic rhinitis prior to October 10, 2014 and to a rating in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from August 1984 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A December 2009 rating decision confirmed and continued a noncompensable rating for allergic rhinitis. A May 2011 rating decision denied service connection for cervical spine disorder, to include cervical IVDS with degenerative arthritic changes and HNP affecting the right arm, hand, and fingers. A May 2014 rating decision denied service connection for hepatitis B. During this appeal a September 2015 rating decision granted an increase from a noncompensable rating for allergic rhinitis to 30 percent, effective October 10, 2014. The Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) sitting at Washington, D.C. and a transcript is of record. Additional evidence was received at the hearing with a waiver of initial RO consideration thereof. However, the record was also held open for 30 days for the submission of additional evidence. See pages 3 and 4 of the transcript. Additionally, at the hearing the service representative indicated that as to one or more effective dates the RO had not initially requested the Veteran's STRs and after they were received the effective date was not set in accordance with the provisions of 38 C.F.R. § 3.156(c). However, the service representative did not identify which rating decision or rating decisions he was referring to, or even which disability or disabilities had been assigned an erroneous effective date. The presiding VLJ, by citing the decision in Rudd v. Nicholson, 20 Vet App 296 (2006), indicated that there was no freestanding claim for an earlier effective date and that the means of challenging an effective date was by a motion for revision alleging clear and unmistakable error (CUE). However, this matter was first asserted at the hearing, it has not been adjudicate, and had not been denied much less appealed to the Board. Thus, the Board had no jurisdiction and at the hearing it was indicated that the matter(s) would be referred to the RO for appropriate action. See pages 26 through 29 of the hearing transcript; see also 38 C.F.R. § 19.9(b) (2015). Parenthetically, the Board notes that a May 2011 rating decision denied an earlier effective date for service connection for sinusitis. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Because this appeal is being remand, in part for examinations, relevant background material is set forth herein to facilitate any review conducted by examiners. Service Records The service treatment records (STRs) show that in March 1998 the Veteran had back and neck pain, and headaches. He denied any injury of his back and neck. The back and neck pain had been constant for the last 2 weeks. An examination of his neck revealed no abnormality. The assessment was possible tension headaches and mechanical low back pain. STRs show that the Veteran received "HEP B (B-SHOT SERIES" with the last of three shots given in December 1998. However, other than inoculations to prevent hepatitis, the STRs are negative for the Veteran's actually having hepatitis B. In June 1990 the Veteran complained of neck and back pain after playing basketball. There was some tenderness to touch of the neck and right shoulder. The assessment was a muscle strain. A January 7, 1991, service clinical record noted that the Veteran had been in a car accident the day before, when he was rear-ended, and now complained of back pain as well as stiffness of his back and neck. After an examination the assessment was a low back strain. In September 2002 it was noted that the Veteran had chronic low back and neck pain. It was reported that he had had a 1988 lifting injury. He had pain which radiated down his arms. After an examination the pertinent assessment was chronic back and neck pain. He was to have X-rays of the cervical spine. In October 2002 there was another assessment of chronic neck and back pain. On May 13, 2003, the Veteran complained of right shoulder and low back pain of 7 days duration. Reportedly, he had no history of past trauma or injury. He did have a history of an injury to the left arm in 1988 after lifting pallets. On examination he had some limitation of motion of the right shoulder and had slight paresthesias radiating to the 4th and 5th digits. The assessment was a "possible cervical spine [illegible]/herniation/strain/arthritis." He was to have cervical spine X-rays to rule out a herniation. On May 14, 2003, he had right-sided neck and upper back pain. He complained of numbness going into the medial aspect of the right forearm and which radiated to the 4th and 5th fingers. He had been carrying a refrigerator in November 2002 when he slipped and began to have numbness into the right hand. His neck pain was 7 on a scale of 10. On examination he had pain on compression of the cervical spine. It was reported that a radiologist had found that X-rays were normal. The assessment was a cervical strain with myofascial trigger points. The Veteran was evaluated at a Naval electrophysiology laboratory in May 2004 to rule out right upper extremity neuropathy or radiculopathy. He had a history of pain and tightness in the medial aspect of the right forearm and right hand for 2 years. The onset was after lifting, and then dropping, a heavy box. The symptoms initially started as numbness but now he just had pain. He also reported having some right upper trapezius pain. Nerve conduction velocity and electromyographic testing were normal and did not show electrodiagnostic abnormalities suggestive of either right median or ulnar nerve neuropathy, and there was no evidence of right cervical radiculopathy or brachial plexopathy. Post Service On official examination in July 2004 the Veteran reported having injured his left shoulder in 1988 when lifting a pallet. Sinusitis had started in 1985 and recurred. On physical examination he could tie his shoes, fasten buttons, and pick up and tear paper without difficulty. All fingers of each hand could approximate the proximal transverse crease of the palm, bilaterally. Hand strength was normal, bilaterally. He had no limitation of motion of any of the joints of the fingers. No diagnosis could be rendered as to a condition of the right hand and 2nd finger because, while the condition actually involved the right 4th and 5th digits, a past EMG was normal and did not yield findings of median or ulnar neuropathy or evidence of right cervical radiculopathy or brachial plexopathy. The examiner stated that the Veteran's sinus X-ray were unremarkable and that the subjective episodes of sinus congestion and rhinorrhea were more consistent with allergic rhinitis. Board Hearing At the January 2016 Board hearing the Veteran's service representative stated that the most recent clinical records on file were VA records of July 2014. The Veteran testified that he continued to receive care through TriCare for his shoulders and neck, most recently 2 months ago by Dr. T. P. Page 3 of the transcript. It was agreed to hold the record open for 30 days to allow for the preparation of a list of all treating physicians. Records of TriCare were cut off in 2010. It was also indicated that he list of treatment would include any outstanding VA records, in addition to any from TriCare. Page 4. The Veteran testified that he had no preservice trouble with his shoulders or neck. Page 5. In 1986, during service, he was lifting pallets and he sustained an injury which was the onset of his cervical spine problems. This was worsened by a car accident during service in 1990 of 1991. He had had neck X-rays onboard his ship. Page 6. Because he had continued to have pain in his hand he had a cervical MRI in 2010 (which it was suggested had revealed a HNP). The service representative stated that an HNP could not be diagnosed by X-ray (such has those the Veteran had while onboard his ship following the initial injury). The Veteran testified that his problems continued to worsen, including developing numbness of his hand. Page 7. The presiding VLJ noted that electrodiagnostic testing in 2003 or 2004 revealed no neuropathy of the median and ulnar nerves, and the service representative observed that such studies would not reveal any pathology of the cervical spine. Page 8. The Veteran indicated that he had been seeing Dr. T. P. for about 8 years. Page 9. During service he had had sensations in the right arm of electrical shocks which eventually became constant. Pages 9 and 10. He testified that his current neurological symptoms in his neck and right arm, including pain radiating from the neck down that arm, were the same as those he had initially experienced during military service and had progressed to numbness and weakness. Page 10. He had not had any postservice injuries. Page 11. As to hepatitis, the Veteran testified that he had been treated during service for hepatitis in Dahlgren, Virginia, in about 1997, just before he was transferred to Annapolis, Maryland, in either 1998 or 1999. He had worked at the Anne Arundel Hospital there and had been given injections for treatment of hepatitis. The service representative suggested that these service records may have been misfiled. The Veteran testified that he had no tattoos but had received inservice inoculations via an air gun. Page 13. He had not received any blood transfusions and had no other risk factors for hepatitis. No one in his family had tested positive for hepatitis, other than himself. Page 14. The service representative inquired of the Veteran whether he had copies of his service personnel records at home, but there was no response. However, the Veteran then agreed that these could be used to narrow down the dates when he had been assigned, during service, to his duty station in Dahlgren, Virginia (which was prior to his assignment in Annapolis, Maryland). The service representative apparently suggested that this would help narrow the dates for a search for the medical records, when the Veteran was stationed in Dahlgren, which documented his inservice treatment for hepatitis. Page 30. As to allergic rhinitis, the presiding VLJ noted that an October 2014 QTC examination had not found nasal polyps, which was required for a 30 percent [and maximum] rating for allergic rhinitis. Pages 14 and 15. The service representative indicate that in the year following that examination there had been time for nasal polyps to develop and that up-dated medical records would confirm or refute this. The presiding VLJ noted that in two statements, in October 2009 and May 2010, the Veteran had complained of nasal congestion, headaches, and a cough and that at that time there was some indication of a sinus infection but there was no information as to the extent of obstruction of nasal passages. Page 15. The Veteran testified that during service had slept with tissues under his pillow because he frequently awoke at night to blow his nose so he could breathe properly. Pages 15 and 16. The presiding VLJ noted the rating criteria for 10 percent and 30 percent ratings for allergic rhinitis. The Veteran then testified that he had congestion of one nasal passage that would then alternate with the other nasal passage. Page 17. He always had at least one nasal passage that was so congested such that he could breathe only through one nasal passage. Pages 17 and 18. The Veteran testified that he had been using Flonase, by prescription, since 2009 to help try to clear his nasal passages, and he now used it at least 2 to 3 times daily. Pages 18 and 19. He got his prescriptions filled by a physician via TriCare. Page 19. Physicians had instructed him that when both nasal passages were clogged that he elevate himself and if he did not he would awaken at night with a choking sensation. Pages 19 and 20. The Veteran's wife testified that when sleeping the Veteran often snored and she would have to move to another room. Page 32. The Veteran also testified that he had clogging of nasal passages during the day, although it was worse at night. Page 21. He had to use a "CPAP" device. Page 22. He was not aware of any nasal polyps having been found in his nasal passage. He sometimes had headaches and had been told that it was due to sinusitis but the Veteran did not think that this was the case. His symptom pattern was nasal congestion, headaches, and a sensation of pressure in his eye. Page 23. The service representative again stated that up-dated medical records would confirm whether or not the Veteran now had nasal polyps and that an attempt would be made to obtain and submit such records in the 30 day timeframe during which the record would be held open. Page 24. The additional evidence received at the hearing, with a waiver of initial RO consideration, consisted of information from Wikipedia relative to a naval ship upon which the Veteran had served, the use of jet injectors for inoculations, hepatitis B; and internet information from the World Health Organization (WHO) relative to hepatitis B; Merck's Manual and the University of Maryland Medical Center relative to HNP; and from Navy Medicine Records Management Program dated in June 2008. At the hearing it was agreed that the record would be held open for 30 days for the submission of additional evidence. See pages 3 and 4 of the transcript. Thereafter, additional attempts were made to obtain clinical records from the Pain Management & Orthopedic Center, including records created by Dr. T. P., but no records were received. Two attempts were made to obtain records from the Laurel Regional Hospital, by letters of January 22, 2016, and February 8, 2016, and the records received show only that he was seen there in May 2015 for right upper extremity pain, and that a Doppler study found no evidence of thrombus in the venous system of the right upper extremity. However, there has been no waiver of initial RO consideration of this evidence. Also following the January 2016 Board hearing the Veteran and his representative did not provide list of dates of treatment for disorders at issue or the addresses of the sources. Also, he and his representative did not provide information from personnel records as to inclusive dates when stationed at Anne Arundel Hospital in Dahlgren, Virginian, when he was allegedly treated for hepatitis. At hearing it was implicitly requested a search be made for all additional VA treatment records which might show the development of nasal polyps. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he clarify his allegation that some of his STRs are not of record. He should be requested to state the places and inclusive dates of treatment or evaluation with respect to such allegedly missing STRs. The Veteran should provide as much specific details as possible and he is hereby notified that general or vague allegations of missing STRs are insufficient to allow for VA assistance in helping obtain such records. Then, in light of his response, the appropriate steps should be taken to assist the Veteran in locating and obtaining any missing STRs. 2. In light of the Veteran's testimony that he would provide additional information, contact the Veteran and request that he provide information as to all postservice treatment and evaluation, relative to records not already on file, for his allergic rhinitis and his claimed disabilities of hepatitis B and disability of the cervical spine, including IVDS with degenerative arthritic changes and HNP affecting the right arm, hand, and fingers. It would be helpful if he provided this information in an organized manner, such as listing chronologically all inclusive dates and places of such treatment or evaluation, to include the current address of all custodians of such records. He should furnish the appropriate release(s) or authorization(s) to obtain such records and he should be requested to execute such form(s) and return them to facilitate obtaining such records. Then the appropriate steps should be undertaken to obtain such evidence and associate it with the record on appeal. 3. Contact the Veteran and request that he clarify the dates and places of all VA treatment for his service-connected allergic rhinitis since July 2014. Then take the appropriated steps to obtain and associate such records with the record on appeal. 4. Provide the Veteran with an appropriate examination to determine the etiology and nature of any cervical spine disorder, to include cervical IVDS with degenerative arthritic changes and HNP affecting the right arm, hand, and fingers. The examiner must have access to and review all electronic records for the Veteran's pertinent medical history. The VA medical personnel is asked to express an opinion as to whether the claimed cervical spine disorder, to include cervical IVDS with degenerative arthritic changes and HNP affecting the right arm, hand, and fingers is at least as likely as not related to the Veteran's period of service, to include inservice injury(ies). The opining medical personnel should address the injuries and the clinical findings during service and indicate the likelihood that the Veteran would have chronic residuals from his injuries, and also address and similarity between the inservice clinical findings and current clinical findings. It would also be helpful if the opining medical personnel addresses the findings and conclusions following the electrodiagnostic testing in May 2004; including the matter of the need for the Veteran to have had to undergo such testing in the first instance. Also, it would be helpful if the examiner were to address the following questions: Is there any medical reason to accept or reject the proposition that the injury(ies) which the Veteran had during service could have led to his current condition? If the response is in the positive, is it at least as likely as not (a 50 percent or greater probability) that such occurred? What types of signs or symptoms would have been caused by the type of injury(ies) herein at issue? Could an injury or injuries, as described in STRs during service have been mistaken for having less impact than was noted at the time, e.g., strain or sprain, but was a precursor to the Veteran's current condition? In formulating the medical opinion and responses, the examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If the requested opinion cannot be provided without resort to speculation, the opining medical personnel should so state and must provide the rationale therefor. 5. Provide the Veteran with an appropriate examination to determine the etiology and nature of any hepatitis B that he may now have. The examiner must have access to and review all electronic records for the Veteran's pertinent medical history. The VA medical personnel is asked to express an opinion as to whether the Veteran now actually has hepatitis B. The VA medical personnel is asked to express an opinion as to whether any hepatitis B that the Veteran may now have is at least as likely as not related to the Veteran's period of service, to include whether it is as likely as not that any hepatitis B that he now has is due to the use of injection guns during service. The opining medical personnel should address the information provided by the Veteran from a website (Wikipedia). In this regard, the opining medical personnel is requested to state whether the article is "competent scientific or medical evidence" within the meaning of 38 C.F.R. § 3.159(a)(1) (Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses). In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If the requested opinion cannot be provided without resort to speculation, the opining medical personnel should so state and must provide the rationale therefor. 6. Forward the case to provide the Veteran an examination as to the current extent and severity of his service-connected allergic rhinitis. The examiner must have access to and review all electronic records for the Veteran's pertinent medical history. The examiner is specifically requested to state whether the Veteran now has any nasal polyps. 7. To help avoid future remand, must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, then appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After the above development has been completed, readjudicate the claims. If the benefits sought remain denied, furnish the appellant, and her representative, a Supplemental Statement of the Case (SSOC) and return the case to the Board. 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). _________________________________________________ DEBORAH W. SINGLETON 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).