Citation Nr: 1617637	
Decision Date: 05/03/16    Archive Date: 05/13/16

DOCKET NO.  10-27 547A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory granuloma of the left lung. 

2.  Entitlement to service connection for a respiratory disability, claimed as granulomas of the lungs. 

3.  Entitlement to service connection for a gastrointestinal disorder, claimed as gastroesophageal reflux disease (GERD), to include as secondary to service-connected obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease. 

4.  Entitlement to an earlier effective date prior to January 23, 2002, for the grant of service connection for obstructive sleep apnea, fatigue, and chronic bronchitis, also claimed as asthma and chronic obstructive pulmonary disease. 

5.  Entitlement to service connection for a liver disability, claimed as hepatocellular disease, to include as due to contaminated water at Camp Lejeune. 

6.  Entitlement to a total disability rating based on individual unemployability (TDIU).  

7.   Entitlement to service connection for posttraumatic stress disorder (PTSD).

8.  Entitlement to service connection for a prostate disability, to include as due to contaminated water at Camp Lejeune. 

9.  Entitlement to service connection for a spleen disability, claimed as granulomatous disease in the spleen, to include as due to contaminated water at Camp Lejeune. 

10.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for coronary artery disease. 

11. Entitlement to a rating in excess of 10 percent for tinnitus.

12.  Entitlement to a rating in excess of 50 percent, prior to December 1, 2014, and a rating in excess of 70 percent, since December 1, 2014, for chronic adjustment disorder with depressed mood also claimed as depression, anxiety, and insomnia.

13.  Entitlement to a rating in excess of 10 percent for maxillary sinusitis with right maxillary polyp.

14.  Entitlement to a rating in excess of 10 percent, prior to October 8, 2014, and a rating in excess of 20 percent, since October 8, 2014, for bilateral hearing loss.

15.  Entitlement to a rating in excess of 50 percent for obstructive sleep apnea, fatigue, and chronic bronchitis, also claimed as asthma and chronic obstructive pulmonary disease. 




REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

A.M. Clark, Counsel


INTRODUCTION

The Veteran served on active duty from September 1981 to June 1990. 
 
These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky. 

The Veteran testified before the undersigned at a November 2015 videoconference hearing.  A transcript has been associated with the file.

The Board notes that the Veteran has additionally perfected appeals with respect to (1) an effective date prior to September 20, 2013 for establishing a 10 percent evaluation for service-connected hearing loss, (2) entitlement to an effective date prior to December 1, 2014 for establishing a 50 percent evaluation for service-connected chronic adjustment disorder with depressed mood, and (3) entitlement to an effective date prior to October 8, 2014 for establishing a 20 percent rating for service-connected bilateral hearing loss.  

At this juncture, the determination as to effective dates of his ratings is premature, as the ratings for his hearing loss and acquired psychiatric disabilities are currently on appeal.  

In any event, as the Veteran is granted TDIU below, it was acknowledged by his representative at his BVA hearing that that would resolve the Veteran's concerns.  The Board will not address the earlier effective date claims within the confines of this decision. 

This appeal is comprised of documents contained in the Veterans Benefits Management System (VBMS) and the Virtual VA system.  All future documents should be incorporated into the Veteran's VBMS file.  

The issue of entitlement to service connection for a liver disability, claimed as hepatocellular disease, to include as due to contaminated water at Camp Lejeune is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  An August 1991 rating decision denied a claim for entitlement to service connection for a respiratory granuloma of the left lung; the Veteran did not appeal the August 1991 decision within one year of being notified.

2.  The evidence associated with the claims file subsequent to the August 1991 rating decision relates to unestablished facts necessary to establish the claim and raises a reasonable possibility of substantiating the claim for service connection for a respiratory granuloma. 

3.  Giving him the benefit of the doubt, the Veteran has a respiratory disability, claimed as granulomas of the lungs, that is etiologically related to his active duty service.

4.  The Veteran's GERD has been attributed to his service-connected obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease.

5.  The earliest date of claim subsequent to the August 2000 final rating decision denying entitlement to service connection for a respiratory disability (bronchitis) was the Veteran's January 23, 2002, claim to reopen the issue of entitlement to service connection, which is the appropriate effective date.

6.  The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation.

7.  At his November 2015 BVA hearing, which was prior to the promulgation of a decision in the appeal, the Veteran withdrew his claims for entitlement to service connection for PTSD, a prostate disability, a spleen disability; whether new and material evidence has been received to reopen the claim of entitlement to service connection for coronary artery disease, entitlement to a rating in excess of 10 percent for tinnitus, and entitlement to increased ratings for service-connected chronic adjustment disorder with depressed mood also claimed as depression, anxiety, and insomnia; obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease; bilateral hearing loss; and maxillary sinusitis with right maxillary polyp since December 27, 2010.  He additionally withdrew (in the event TDIU was granted, which it is below) his increased rating claims for his service-connected chronic adjustment disorder with depressed mood also claimed as depression, anxiety, and insomnia; maxillary sinusitis with right maxillary polyp, bilateral hearing loss, and obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease, prior to December 27, 2010.






CONCLUSIONS OF LAW

1.  The August 1991 rating decision that denied a claim for service connection for a respiratory granuloma of the left lung is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2015). 

2.  New and material evidence having been received, the claim of entitlement to service connection for a respiratory granuloma of the left lung is reopened.  38 U.S.C.A.  § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

3.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for respiratory disability, claimed as granulomas of the lungs, have been met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).

4.  GERD is proximately due to or the result of his service-connected service-connected obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease.  38 U.S.C.A. §§ 1131, 1132, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015).

5.  The criteria for an effective date earlier than January 23, 2002, for the grant of service connection for obstructive sleep apnea, fatigue, and chronic bronchitis, also claimed as asthma and chronic obstructive pulmonary disease, are not met.  38 U.S.C.A.  §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.157, 3.400 (2015).

6.  The criteria for a total disability rating based on individual unemployability have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015).

7.  The criteria for withdrawal of a substantive appeal on the issues of entitlement to service connection for PTSD, a prostate disability, a spleen disability; whether new and material evidence has been received to reopen the claim of entitlement to service connection for coronary artery disease, entitlement to a rating in excess of 10 percent for tinnitus, and entitlement to increased ratings for service-connected chronic adjustment disorder with depressed mood also claimed as depression, anxiety, and insomnia; maxillary sinusitis with right maxillary polyp, bilateral hearing loss, and obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease have been met.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. New and Material Evidence

The Veteran most recently filed a request to reopen his claim for entitlement to service connection for a respiratory granuloma in October 2009. 

At the time of his last final RO denial, evidence of record included service treatment records and a VA examination.

Since the last final denial, evidence added includes the Veteran's statements and testimony, VA and private treatment records.
 
Based on a review of this new evidence, and the low standard for reopening claims, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for a respiratory granuloma of the left lung is reopened. 

II.  Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §  1131 (West 2014).  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/ Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).  

In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (2015).  Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id.  

Finally, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).




Respiratory Disability, Granulomas of the Lungs

In-service treatment records reflect a May 1990 report which notes a calcified granuloma, but no active lung disease.  In a May 1991 VA examination, within a year from separation from service, it was noted that the last chest X-ray taken a year prior had also showed granulomas in the lung.  It was noted that no surgery had been done for the granuloma.  He was diagnosed with granulomas left lung by history.  More recently, a June 2003 chest X-ray continues to reflect multiple calcified granulomata and mediastinal lymph nodes, consistent with prior granulomatous disease.  It was noted that the Veteran's lungs were clear.  A February 2005 chest X-ray notes dense calcifications in the Veteran's right upper lobe which are thought to be granulomas

A VA etiological opinion has not been obtained with respect to the Veteran's respiratory disability, specifically granulomas of the lungs claim.  While VA could undertake additional development with respect to his granulomas of the lungs (clarify his diagnosis and obtain an etiological opinion), based on the fact that the Veteran was noted to have granulomas on his lung in service, and continues to have the same findings, the Board will resolve all reasonable doubt in favor of the Veteran.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015).  The nature and extent of the problem related to service is not before the Board. 
	
Accordingly, the Board concludes that a grant of service connection for granulomas of the lungs is warranted.

GERD

The Veteran is service-connected for obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease.  He asserts that his GERD is the result of this service-connected disability.  This is primarily a medical issue.  

In this regard, an October 2011 letter from the Veteran's VA treating physician noted that the Veteran had been treated for acute sinusitis and/or chronic rhinitis since January 2011 (another of his service-connected disabilities).  She stated that regarding his GERD, some medication for COPD/asthma (another service-connected disability) can exacerbate acid reflux and in turn, the acid reflux can worsen sore throat and coughing.  She opined that it is at least as likely as not a result of COPD/asthma.  A statement from the Veteran's treating physician in March 2014 reiterated this stating that the Veteran's medications (used to treat service-connected disabilities) contribute to his GERD.  

The Veteran underwent a VA examination in April 2010; a negative etiological opinion was provided.  No rationale was provided for the aggravation opinion.  Little probative value is thus accorded to this examination.  

The Board finds that the claim for service connection for GERD, to include as secondary to service-connected obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease may be granted.  Further discussion is simply not warranted.  The nature and extent of this problem related to the service connected disability is not before the Board at this time. 

III. Earlier Effective Date Claim

The Veteran is seeking an earlier effective date for the grant of service connection for obstructive sleep apnea, fatigue, and chronic bronchitis, also claimed as asthma and chronic obstructive pulmonary disease.  

The laws and regulations governing effective dates establish that unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C.A. § 5110(a).

The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(2).

A reopened claim is any application for a benefit received after final disallowance of an earlier claim.  38 C.F.R. § 3.160(e).

The Veteran's original claim for service connection for bronchitis was made on January 1991.  The Veteran withdrew his claim as he was trying to re-enter military service.  In May 1991, he requested that his claim be reinstated.  An August 1991 rating decision was issued, that denied service connection for asthma.  The Veteran did not initiate an appeal, and the August 1991 rating decision became final. See 338 U.S.C.A. § 7105.

The Veteran filed a claim to reopen and another decision was made on August 2000, continuing the denial of his service connection claim for bronchitis.  The Veteran did not initiate an appeal, and the August 2000 rating decision became final. See 338 U.S.C.A. § 7105.

In this case, since the Veteran did not file a timely notice of disagreement with the RO's August 1991 or August 2000 rating decisions, they became final, and are not subject to revision in the absence of clear and unmistakable error (CUE) in the decision.  38 U.S.C.A. §§ 5109A; 7104; Rudd v. Nicholson, 20 Vet. App. 296 (2006).  The most recent August 2000 rating decision remains a legal bar to an effective date prior to the date of the claim to reopen (January 23, 2002) the issue of entitlement to service connection for obstructive sleep apnea, fatigue, and chronic bronchitis, also claimed as asthma and chronic obstructive pulmonary disease. 

The earliest date after the August 2000 rating decision that the Veteran expressed an intent to reopen his claim for service connection for a respiratory disability is January 23, 2002, which is the presently assigned effective date.  Under the controlling law and regulations outlined above, the award of compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400(r).  Thus, the January 23, 2002, date of claim is the appropriate effective date, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls.  38 C.F.R. § 3.400.  Accordingly, the claim must be denied.  See 38 C.F.R. § 3.400(q)(2), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997).

IV. TDIU

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1).  TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2015).  The Veteran's ratings for his service-connected disabilities meet the threshold criteria for consideration of a TDIU.  38 C.F.R. §§ 4.16(a).

The Veteran most recently filed a claim for entitlement to TDIU on September 4, 2007.  

The Veteran is currently rated at 100 percent schedular, since December 27, 2010.  

As such, the Board's analysis focuses on the time period prior to this date.  Evidence of record reflects that the Veteran last engaged in substantially gainful employment in July 2005.  See VA Form 21-8940.  A VA Form 21-4192 completed by his last employer confirms that the Veteran retired on disability in July 2005.  The evidence reflects that the Veteran suffers from a service-connected non-Hodgkin's lymphoma, acquired psychiatric disability, obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease, bilateral hearing loss, tinnitus, maxillary sinusitis with right maxillary polyp, a painful scar of the right upper neck associated with non-Hodgkin's lymphoma, urinary tract infection, and erectile dysfunction.  He has also been granted service connection for granuloma of the lungs and GERD in the decision above.  Taking into consideration the Veteran's work history and severity of his service-connected disabilities, the Board finds that the evidence reflects the Veteran is unable to maintain substantially gainful employment.  

The Veteran's combined ratings for his disabilities has been at least 70% since October 16, 2006, without consideration of the additional ratings assigned for his now service-connected granuloma of the lungs and GERD. 

The Board finds the evidence of record provides highly probative evidence in support of a TDIU.  The evidence of record shows that the Veteran's service-connected disabilities together preclude him from securing or following substantially gainful employment.  Affording the Veteran the benefit of the doubt, a TDIU is granted.  38 U.S.C.A. § 5107(b); see Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993).

V.  Duties to Assist and Notify

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

Here, the Veteran is challenging the effective date assigned following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). 

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records, VA medical records, and identified private treatment records (including Social Security Administration records) have been obtained.  Moreover, the Board has reviewed the Veteran's Virtual VA (VVA) claims file and Veterans Benefits Management System (VBMS) file.  

The Veteran has also not identified any additional outstanding evidence that could be obtained.  

Discussion of the Veteran's November 2015 Veterans Law Judge (VLJ) hearing is also necessary.  The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2).  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  They were met here.  The issues on appeal were considered at the hearing.  Sources of evidence relevant in this regard were identified during this hearing.  The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to these claims.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

VI.  Withdrawal

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202 (2015).  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204 (2015).

The Veteran indicated his desire to withdraw his appeals regarding the issues of entitlement to service connection for PTSD, a prostate disability, a spleen disability; whether new and material evidence has been received to reopen the claim of entitlement to service connection for coronary artery disease, entitlement to a rating in excess of 10 percent for tinnitus, and entitlement to increased ratings for service-connected chronic adjustment disorder with depressed mood also claimed as depression, anxiety, and insomnia; maxillary sinusitis with right maxillary polyp, bilateral hearing loss, and obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease since December 27, 2010 at his November 2015 BVA hearing.  He essentially indicated that his increased rating claims since December 27, 2010 were satisfied as he was already in receipt of a 100 percent disability rating for his non-Hodgkin's lymphoma since that date.

Additionally, he stated that if he were to be granted TDIU he would consider his increased rating claims (portion of appeal period prior to December 27, 2010) "resolved."  See BVA Hearing Transcript (T.) at 25.    

As the Board has granted the Veteran's claim for TDIU above, the Veteran's claims for increased ratings, prior to December 27, 2010, are additionally considered withdrawn.  

The Board finds that the Veteran's statements indicating his intention to withdraw the appeal, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal.  See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993).  The Veteran has withdrawn his appeal regarding these issues, and, hence, there remains no allegation of error of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal, and they are dismissed.

ORDER

The claim of entitlement to service connection for a respiratory granuloma of the left lung is reopened.  

Service connection for a respiratory disability, claimed as granulomas of the lungs, is granted. 

Service connection for a gastrointestinal disorder, claimed as GERD, to include as secondary to service-connected obstructive sleep apnea, fatigue, and chronic bronchitis also claimed as asthma and chronic obstructive pulmonary disease, is granted. 

Entitlement to an earlier effective date prior to January 23, 2002, for the grant of service connection for obstructive sleep apnea, fatigue, and chronic bronchitis, also claimed as asthma and chronic obstructive pulmonary disease, is denied. 

Entitlement to a TDIU is granted.

The claim for entitlement to service connection for PTSD is dismissed without prejudice. 

The claim for entitlement to service connection for a prostate disability, to include as due to contaminated water at Camp Lejeune, is dismissed without prejudice. 

The claim for entitlement to service connection for a spleen disability, claimed as granulomatous disease in the spleen, to include as due to contaminated water at Camp Lejeune, is dismissed without prejudice. 

The claim for whether new and material evidence has been received to reopen the claim of entitlement to service connection for coronary artery disease is dismissed without prejudice. 

The claim for entitlement to a rating in excess of 10 percent for tinnitus is dismissed without prejudice.

The claim for entitlement to a rating in excess of 50 percent, prior to December 1, 2014, and a rating in excess of 70 percent, since December 1, 2014, for chronic adjustment disorder with depressed mood also claimed as depression, anxiety, and insomnia is dismissed without prejudice.

The claim for entitlement to a rating in excess of 10 percent for maxillary sinusitis with right maxillary polyp is dismissed without prejudice.

The claim for entitlement to a rating in excess of 10 percent, prior to October 8, 2014, and a rating in excess of 20 percent, since October 8, 2014, for bilateral hearing loss is dismissed without prejudice.

The claim for entitlement to a rating in excess of 50 percent for obstructive sleep apnea, fatigue, and chronic bronchitis, also claimed as asthma and chronic obstructive pulmonary disease is dismissed without prejudice. 


REMAND

Unfortunately, the Board finds that further development is necessary regarding the Veteran's claim for entitlement to service connection for a liver disability, claimed as hepatocellular disease, to include as due to contaminated water at Camp Lejeune. 

The Veteran claims that he suffers from a liver disability caused by contaminated water at Camp Lejeune. Service personnel records confirm that the Veteran was stationed at Camp Lejeune.  A March 2006 CT scan of his pelvis reflects that the Veteran's liver has large geographic areas of decreased attenuation consistent with fatty infiltration or hepatocellular disease.  A VA examination has not been provided to the Veteran and the Board finds one is necessary to adjudicate his claim. 

In light of the grants above, the Veteran may wish to withdraw the appeal (in writing).  In any event, the issue must be address by the Board unless withdrawn by the Veteran.
 
Accordingly, the case is REMANDED for the following actions:

1.  Develop the Veteran's service connection claim for a liver disability considering his contention that his claimed disability was caused by exposure to contaminated water during his service at Camp Lejeune, North Carolina, in accordance with VA Adjudication Procedures Manual, M21-1, pt. IV, subpt. II, ch. 2, § C, to include scheduling any necessary examinations.  Specifically, schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any liver disability. The claims file and a copy of this Remand must be reviewed by the examiner.

Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine whether any liver disability is at least as likely as not (i.e. a 50 percent probability or more) caused by, or otherwise related to, exposure to contaminated water during the Veteran's service at Camp Lejeune, North Carolina.

2.  Upon completion of the above, readjudicate the issue on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond.  The case should be returned to the Board for further appellate consideration, as appropriate.

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).

______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs