Citation Nr: 1620553	
Decision Date: 05/20/16    Archive Date: 05/27/16

DOCKET NO.  07-24 153A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for headaches.

3.  Entitlement to service connection for chest pain.

4.  Entitlement to service connection for skin problems/disability (claimed as tinea versicolor and tinea corporis), to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117.

5.  Entitlement to service connection for residuals of fracture of the 2nd metacarpal of the left hand.

6.  Entitlement to service connection for liver disease, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117.

7.  Entitlement to service connection for low white blood cell count, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117.

8.  Entitlement to service connection for chronic fatigue syndrome.

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

10.  Entitlement to service connection for low back problems/disability, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117, or as secondary to service-connected right knee disability..

11.  Entitlement to service connection for residuals of right eye injury, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117.

12.  Entitlement to service connection for periodontal disease.

13.  Entitlement to service connection for gastrointestinal problems/disorder (claimed as gastroenteritis), to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117.

14.  Entitlement to service connection for erectile dysfunction, claimed as secondary to medications taken for service-connected hypertension.

15.  Entitlement to service connection for a kidney disability.

16.  Entitlement to service connection for cervical spine problems/ disability, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117.

17.  Entitlement to service connection for lipoma in the right scapular area.

18.  Entitlement to higher  ratings for patellofemoral dysfunction, chondromalacia and degenerative arthritis of the right knee, initially evaluated as 10 percent disabling from January 26, 2006 to January 4, 2010, and as 20 percent disabling since January 5, 2010.

19.  Entitlement to higher  ratings for hypertension, initially evaluated as noncompensable from January 26, 2006 to January 4, 2010, and as 10 percent disabling since January 5, 2010.

20.  Entitlement to an initial rating greater than 10 percent for sinus bradycardia.

21.  Entitlement to higher ratings for left frontal scar formation, left periorbital scar and occipital scar (facial scars), initially evaluated as noncompensable from January 26, 2006 to January 4, 2010, and as 20 percent disabling since January 5, 2010.

22.  Entitlement to an initial rating greater than 10 percent for depressive disorder not otherwise specified (NOS)  prior to May 14, 2010.

23.  Entitlement to an initial rating greater than 40 percent for traumatic brain injury (TBI).

24.  Entitlement to an initial, compensable rating for right epididymitis.

25.  Entitlement to a temporary total evaluation based on hospitalization, pursuant to 38 C.F.R. § 4.29, from July 28, 2008 to September 12, 2008.

26.  Entitlement to a temporary total evaluation based on  convalescence,, , pursuant to 38 C.F.R. § 4.30, from July 28, 2008 to September 12, 2008.  

27.  Entitlement to a temporary total evaluation based on hospitalization,  pursuant to 38 C.F.R. § 4.29, from March 18, 2009 to April 15, 2009.

28.  Entitlement to an effective date earlier than April 29, 2009 for the award of service connection for TBI.

29.  Entitlement to an effective date earlier than May 14, 2010 for the award of special monthly compensation (SMC).

30.  Entitlement to an effective date earlier than May 14, 2010 for the award of a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities.

31.  Entitlement to an effective date earlier than May 14, 2010 for the award of entitlement to Dependents' Educational Assistance (DEA).

32.  Entitlement to DEA benefits for M.R. prior to May 14, 2010.


REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel



INTRODUCTION

The Veteran served on active duty from December 1988 to January 2006.

As a preliminary matter, the Board notes that the San Juan RO (hereinafter agency of original jurisdiction (AOJ)) appears to have certified for appeal 24 issues.  See VA Form 8 (Certification of Appeal) dated January 29, 2015.  It is a well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits and that, once apparent, a potential jurisdictional defect may be raised by the court, tribunal or any party, sua sponte, at any stage in the proceedings.  See, e.g., Barnett v. Brown, 83 F.3d 1380, 1383 (1996).  Within the VA regulatory system, the Board is the sole arbiter of decisions concerning its jurisdiction.  38 C.F.R. § 20.101(c) (2015).  The Board has statutory authority to review all questions necessary to a decision in the matter, and is not necessarily limited to the issue(s) certified for appeal.  38 U.S.C.A. §§ 511(a), 7104(a) (West 2014).  See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).

The Board's authority to review an adverse AOJ decision is initiated upon a claimant's submission of a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) has been furnished.  38 U.S.C.A. §§ 7105(a); 38 C.F.R. § 20.200.  An NOD must (1) express disagreement with a specific determination of the AOJ; (2) be filed in writing; (3) be filed with the AOJ; (4) be filed within one year after the date of mailing of notice of the AOJ decision; and (5) be filed by the claimant or the claimant's authorized representative.  38 C.F.R. §§ 20.201, 20.300.  While special wording is not required, an NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review.  38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). 

A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information.  38 C.F.R. § 20.202.  A Substantive Appeal must be filed within 60 days from the date that the AOJ mails the SOC to the claimant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later.  38 C.F.R. § 20.302(b)(1).

In determining its jurisdiction, the Board must be cognizant that the VA adjudicative system is non-adversarial and pro-claimant in nature wherein pro se filings are liberally and sympathetically construed.  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); EF. v. Derwinski, 1 Vet. App. 324 (1991).

Here, the record on appeal consists of 14 paper claims folders  in addition to documents stored electronically in the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  Notably, the AOJ has placed Volume numbers on only 11 of the 14 paper claims folders, and many documents contained therein are out of chronological order.  The review of the case is further complicated by multiple repeat filings by the Veteran-many of which are duplicative.  , After a review of this record, the Board has concluded that more issues have been appealed by the Veteran than as indicated by the AOJ certification and the AOJ adjudicative actions in the August 2013 SOC, the August 2013 supplemental SOC (SSOC) and the November 2013 SOC. 

This appeal to the Board) arose from a July 2006 AOJ rating decision (Volume 1) which granted service connection for bradycardia and assigned an initial 10 percent rating effective January 26, 2006; granted service connection for patellofemoral dysfunction, chondromalacia and degenerative arthritis of the right knee and assigned an initial 10 percent rating effective January 26, 2006; granted service connection for hypertension (high blood pressure) and assigned an initial noncompensable rating effective January 26, 2006; granted service connection for facial and head trauma with residual scar formation and assigned an initial noncompensable rating effective January 26, 2006; and denied service connection claims for hearing loss, lipoma in the right scapular area, headaches, chest pain, tinea versicolor and tinea corporis, residual scar of the left foot and residuals of fracture of the 2nd metacarpal of the left hand.  In August 2006, the Veteran filed an NOD (Volume 1) pertaining to the initial ratings assigned for his bradycardia, right knee disability, hypertension and facial and head trauma with residual scar formation as well as the denials of service connection for hearing loss, headaches, chest pain, tinea, residuals of fracture of the 2nd metacarpal of the left hand and lipoma in the right scapular area.  An SOC was issued in August 2007 (Volume 1) which did not include the issue of entitlement to service connection for lipoma in the right scapular area.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month (Volume 2).

This appeal to the Board also arose from an August 2007 AOJ rating decision (Volume 2) which, inter alia, granted service connection for depressive disorder NOS and assigned an initial 10 percent rating effective January 26, 2006; and denied service connection claims for alcohol abuse, a liver condition, low white blood cell count level, fatigue, and PTSD; and denied entitlement to TDIU.  In September 2007, the Veteran submitted an NOD (Volume 2) with respect to the initial rating assigned for depression NOS, the service connection denials except for substance abuse, and the denial of entitlement to TDIU.  An SOC was issued in February 2008 (Volume 3), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month (Volume 6).

This appeal to the Board also arose from a December 2008 AOJ rating decision (Volume 4) which, inter alia, denied service connection claims for scoliosis claimed as a back condition, residuals of a right eye injury and gingivitis claimed as a periodontal disorder; denied a claim of entitlement to a total evaluation because of hospital treatment in excess of 21 days, pursuant to 38 C.F.R. § 4.29, for the time period from July 28, 2008 to September 12, 2008; denied a claim of entitlement to a temporary total evaluation because of convalescence for a service-connected disability, pursuant to 38 C.F.R. § 4.29, for the time period from July 28, 2008 to September 12, 2008; and denied claim for a separate evaluation for insomnia.  In January 2009, the Veteran filed an NOD (Volume 6).

This appeal to the Board also arose from an October 2009 AOJ rating decision (Volume 4) which granted service connection for TBI and assigned an initial 40 percent rating effective April 29, 2009; granted service connection for right epididymitis and assigned an initial noncompensable rating effective April 29, 2009; denied service connection claims for gastroenteritis, erectile dysfunction as secondary to medications taken for hypertension, a kidney disability, hay fever and tinnitus; and denied a temporary total evaluation because of hospital treatment in excess of 21 days, pursuant to 38 C.F.R. § 4.29, for the time period from March 18, 2009 to April 15, 2009.  Later that month, the Veteran filed an NOD (Volume 6) with respect to the initial ratings assigned for TBI and right epididymitis, all service connection claims except for hay fever, and the temporary total evaluation because of hospital treatment in excess of 21 days.

The Board further notes that, in March 2010, the Veteran submitted an NOD (Volume 7) with respect to the effective date assigned for the award of service connection for TBI.

In April 2010, the AOJ furnished the Veteran an SOC (Volume 7) addressing the issues of entitlement to higher disability ratings for hypertension, TBI and right epididymitis; the denials of service connection for scoliosis, residuals of right eye injury, periodontal disease, gastroenteritis, erectile dysfunction, a kidney disability and tinnitus; the claim of entitlement to a total evaluation because of hospital treatment in excess of 21 days, pursuant to 38 C.F.R. § 4.29, for the time period from July 28, 2008 to September 12, 2008; and the claim of entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days, pursuant to 38 C.F.R. § 4.30, for the time period from March 18, 2009 to April 15, 2009.  The AOJ incorrectly addressed the hypertension claim in the SOC as the appeal to that issue had previously been perfected.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2010 (Volume 7).

This appeal to the Board also arose from a June 2011 AOJ rating decision (Volume 9) which, inter alia, granted a 20 percent rating for right knee disability effective January 5, 2010; granted a 10 percent rating for hypertension effective January 5, 2010; granted a 20 percent rating for left frontal scar formation, left periorbital scar and occipital scar effective January 5, 2010; and denied service connection claims for a cervical spine condition and sleep apnea.  In July 2011, the Veteran filed an NOD (Volume 9).  Notably, the AOJ awarded an effective date of January 5, 2010 for the increased ratings for hypertension and facial scars as "the date we received your claim for compensation."  However, as noted above, these claims were already on appeal from the initial ratings assigned.  The Board also observes that a handwritten notation on the rating document noted that the right knee disability claim was already on appeal while another notation noted that issue was not on appeal.

A January 2012 AOJ rating decision (Volume unmarked) awarded a temporary 100 percent rating for a period of hospitalization due to service-connected disability, pursuant to 38 C.F.R. § 4.29, for the time period from October 18, 2011 to December 9, 2011.

An August 2012 AOJ rating decision (Volume 10) granted service connection for sleep apnea, and assigned an initial 50 percent rating effective January 10, 2010; granted service connection for tinnitus, and assigned an initial 10 percent rating effective May 6, 2009; granted entitlement to SMC benefits based on housebound criteria for the time period from October 18, 2011 to December 31, 2011, and since January 1, 2012; granted a 70 percent rating for depressive disorder NOS effective January 1, 2012; and granted entitlement to TDIU effective January 1, 2012.

In August 2012, an SOC was issued on the denials of entitlement to service connection for a cervical spine condition and sleep apnea.  Notably, the additional claims addressed in the June 2011 rating decision were already on appeal.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2012 (Volume 11).

Notably, as the August 2012 AOJ rating decision (Volume 10) awarded service connection for sleep apnea and tinnitus, the appeal as to these issues terminated as these were full grants of the benefits sought on appeal.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977).

In September 2012, the Veteran's agent submitted an NOD (Volume 11) with respect to "the evaluation of depressive disorder, not otherwise specified currently rated as 70% disabling, to include the effective date awarded."  The Veteran's agent also submitted a substantive appeal with respect to the August 2012 SOC which addressed the issue of entitlement to service connection for a cervical spine condition.

In November 2012, the Veteran's agent submitted an NOD (Volume 11) with respect to the effective date for the award of TDIU, and the initial ratings assigned for sleep apnea and tinnitus.  

An August 2013 AOJ rating decision (VBMS), inter alia, awarded a 100 percent initial rating for depressive disorder NOS effective May 14, 2010, awarded DEA effective August 19, 2013, and awarded TDIU and SMC benefits based on being housebound effective May 14, 2010.

In August 2013, the AOJ furnished an SOC (Volume 11) on the initial ratings assigned for sleep apnea and tinnitus.  Later that month, the Veteran withdrew from appeal the initial ratings assigned for sleep apnea and tinnitus (Volume 11).  Thus, the appeal on these issues was terminated.  

A November 2013 AOJ decision awarded basic eligibility to DEA effective May 14, 2010.

In November 2013, the AOJ furnished an SOC (Volume 11 and VBMS) on the effective date of awards assigned for DEA and SMC benefits.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) (VBMS) in July 2014.

In April 2015, the Veteran testified before the undersigned Veterans Law Judge during a Board hearing held at the San Juan RO (Travel Board hearing).  A copy of the hearing transcript is associated with the claims file.  During  the hearing, the Veteran and his agent waived initial AOJ consideration of evidence not previously considered.  See 38 C.F.R. §§ 20.800, 20.1304 (2015).

The Board observes that, at the April 2015 hearing, the Veteran and his representative indicated their intent to withdraw multiple issues from appeal; these matters are formally dismissed below.  Notably, one of the  issues identified for dismissal included a vaguely worded issue of entitlement to a total evaluation because of hospital treatment in excess of 21 days.  The Veteran and his agent reported their belief that this benefit had been awarded by the AOJ.

The United States Court of Appeals for Veterans Claims (Court) has held that withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.  Hanson v. Brown, 9 Vet. App. 29, 32 (1996).  

As discussed above, the Veteran has appealed the issues of entitlement to a temporary, total evaluation because of hospital treatment in excess of 21 days, pursuant to 38 C.F.R. § 4.29, for the time period from July 28, 2008 to September 12, 2008; entitlement to a temporary total evaluation because of convalescence for a service-connected disability, pursuant to 38 C.F.R. § 4.30, for the time period from July 28, 2008 to September 12, 2008; and entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days, pursuant to 38 C.F.R. § 4.29, for the time period from March 18, 2009 to April 15, 2009.  None of these claims have been granted in full.  

However, in January 2012, the AOJ granted a temporary total evaluation because of hospital treatment in excess of 21 days, pursuant to 38 C.F.R. § 4.29, for the time period from October 18, 2011 to December 31, 2011.

A further review of the record reveals that the AOJ's August 2013 SSOC identified only one issue on appeal as "entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days for a service connected condition (38 CFR 4.29)."  The AOJ did not identify the time period(s) under consideration in the Reasons and Bases section of the SSOC.  In essence, the August 2013 SSOC did not properly notify the Veteran and his representative that three separate temporary total ratings were at issue, and did not identify the time period(s) in question.  

Given that the August 2013 SSOC did not properly identify the fact that three separate temporary total ratings were at issue and the fact that these claims were not granted as assumed by the Veteran and his representative, the Board declines to accept a withdrawal at this time on the issues of entitlement to a total evaluation because of hospital treatment in excess of 21 days, pursuant to 38 C.F.R. § 4.29, for the time period from July 28, 2008 to September 12, 2008; entitlement to a temporary total evaluation because of convalescence for a service-connected disability, pursuant to 38 C.F.R. § 4.30, for the time period from July 28, 2008 to September 12, 2008; and entitlement to a temporary total evaluation because of hospital treatment in excess of 21 days, pursuant to 38 C.F.R. § 4.29, for the time period from March 18, 2009 to April 15, 2009.  Overall, the Board cannot conclude that the Veteran and his representative specifically withdrew all three claims with full knowledge of the benefits which had been granted or denied.  On remand, the Veteran and his representative are free to withdraw these claims if they so desire.

With regard to the characterization of the claims, because the veteran disagreed with the initial ratings assigned following the awards of service connection for right knee disability, hypertension, sinus bradycardia, facial scars, , depressive disorder NOS, TBI and epididymitis, the Board has characterized these claims in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability).  Moreover, although the Veteran has subsequently been awarded higher ratings for his right knee disability, hypertension, facial scars and depressive disorder NOS for various time periods, as higher ratings for these disabilities are available before and after each date (except for depressive disorder rated as 100 percent disabling since May 14, 2010), and the Veteran is presumed to seek the maximum available benefit for a disability, the matter of higher ratings (now characterized to reflect the staged ratings assigned) remain viable on appeal.  Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). 

With respect to the depressive disorder NOS claim, the Veteran's agent has argued for entitlement to an earlier effective date for the award of a 100 percent rating.  Notably, as discussed above, the Veteran was awarded service connection for depressive disorder NOS in an August 2007 AOJ rating decision, at which time the AOJ assigned an initial 10 percent rating effective January 26, 2006-the date of service discharge.  The Veteran properly appealed the initial rating assigned.  Thus, the references to entitlement to an earlier effective date of award reflect continuing disagreement with the initial rating assigned rather than the date of award for service connection.

With regard to the service connection claims for skin disability, liver disease, low white blood cell count, low back disability, gastrointestinal disability and cervical spine disability, the Board has more broadly phrased these issue to encompass all potential diagnoses relating to his claimed symptoms.  See generally Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described and the information submitted or developed in support of the claim).  Additionally, the Board has included additional theories of service connection entitlement raised by the Veteran.  See Bingham v. Principi, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (holding that separate theories in support of a claim for a particular benefit are deemed part of the same claim).

The Board further observes that the Veteran's sleep impairment has already been conceded as a symptom of his service-connected depressive disorder NOS.  Thus, the Veteran's NOD with respect to the denial of a separate rating for insomnia is deemed part and parcel of his already appealed claim for a higher initial rating for depressive disorder NOS.  See 38 C.F.R. § 4.130, Schedule for Rating Mental Disorders (2015) (listing chronic sleep impairment as an example supporting a 30 percent rating).

As addressed in the remand below, the issues of entitlement to an effective date earlier than April 29, 2009 for the award of service connection for TBI, entitlement to service connection for lipoma in the right scapular area, and entitlement to DEA benefits for M.R. prior to May 14, 2010 have been listed on the title page for procedural purposes only.

The record on appeal includes 14 paper volumes.  There are additional documents stored in the paperless, electronic VBMS and Virtual VA processing systems.  Accordingly, any future consideration of this case should take into consideration the existence of these electronic records.

The Board's disposition is set forth below on the claims for  service connection for bilateral hearing loss, headaches, chest pain, chronic fatigue syndrome, PTSD, periodontal disease, erectile dysfunction and a kidney disability, as well as the claims for higher ratings for r facial scars, sinus bradycardia and right epididymitis,. The remaining matters-to include those for which the Veteran has completed the first of two actions required to place these matters in appellate status, are addressed remand following the order; these matters are being remanded to the AOJ.  VA will notify the Veteran when further action, on his part, is required.


FINDINGS OF FACT

1.  During the April 8, 2015, Board hearing-prior to the issuance of an appellate decision-the Veteran withdrew from appeal the claims for service connection for bilateral hearing loss, chest pain, chronic fatigue syndrome, PTSD, periodontal disease and a kidney disability; as well as claims for higher initial (and subsequent, as appropriate) ratings for sinus bradycardia, facial scars, and right epididymitis.

2.  All notification and development actions needed to fairly resolve each claim herein decided has been accomplished.

3.  The collective evidence  is, at least, in relative equipoise with regard to the matter of whether the Veteran's headaches are proximately due to his service-connected TBI residuals.

4.  The competent, probative medical opinion evidence is, at least, in relative equipoise with regard to the matter of whether the Veteran's erectile dysfunction is proximately due to his service-connected depressive disorder NOS, to include medications prescribed for his depressive disorder NOS.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of appeal are met with respect to the claims for service connection for bilateral hearing loss, chest pain, chronic fatigue syndrome, PTSD, periodontal disease, kidney disease; as well as claims for higher initial (and subsequent, as appropriate) ratings for sinus bradycardia, facial scars, and  right epididymitis.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).

2.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for headaches are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 4.124a, Diagnostic Code (DC) 8045 (2015).

3.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for erectile dysfunction  are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015).


DISMISSAL OF WITHDRAWN CLAIMS

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2014).  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 (2015).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

During the April 8, 2015, Board hearing-prior to the issuance of an appellate decision-the Veteran withdrew from appeal the claims for service connection for bilateral hearing loss, chest pain, chronic fatigue syndrome, PTSD, periodontal disease and a kidney disability as well as the claims for higher initial ratings assigned for sinus bradycardia, facial scars and right epididymitis.  The transcript has been reduced to writing and is of record.  See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993).  Hence, there remain no allegations of error of fact or law for appellate consideration with regard to these claims.  Accordingly, the Board does not have jurisdiction to review the appeal as to  these matters, and they must be dismissed.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 
FOR CLAIMS DECIDED

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015).

Given the favorable disposition of the claims for service connection for headaches and erectile dysfunction decided on appeal, the Board finds that all notification and development action needed to fairly adjudicate these claims have been accomplished.

II.  Analysis

The Veteran seeks to establish his entitlement to service connection for headaches and erectile dysfunction.  Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  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 that was incurred or aggravated in service.  38 C.F.R. § 3.303(d).

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.

However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.")  Neither headaches nor erectile dysfunction is not identified as a "chronic" disease under 38 C.F.R. § 3.309(a) although an "organic disease of the nervous system" is listed among the criteria. 

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991).

In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.   38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Considering the pertinent evidence in light of the governing legal authority, and affording the Veteran the benefit of the doubt on certain elements of each claim for service connection, the Board finds that service connection for headaches and for  erectile dysfunction is warranted.

With respect to the headache claim, the record reflects that the Veteran incurred multiple TBIs during service which supports his award of service connection for TBI.  Notably, the diagnostic criteria for evaluating TBI residuals, DC 8045, lists headaches as a subjective symptom of TBI.  See 38 C.F.R. § 4.124a, DC 8045.

The Veteran filed his service connection claim for headaches in March 2006, which is approximately two months after his service discharge.  He has continuously reported recurrent headaches since service discharge.  His report of headaches contemporaneous in time to discharge to the present day provides competent and credible lay evidence tending to support a finding of the onset of headaches in service. 

In addition to the lay report of headache chronicity since service, the record includes medical assessments that the Veteran's headaches are a residual symptom of his service-connected TBI.  For example, a February 2009 VA polytrauma evaluation conducted in the clinic setting identified the Veteran's headaches as a neurobehavioral symptom of TBI.  In July 2009, a VA clinician identified the Veteran's headaches as among his post-concussive syndrome symptoms.

Additionally, the record includes assessments from VA Compensation and Pension (C&P) examiners that the Veteran's headaches are a subjective symptom of his TBI.  At an August 2009 VA examination to evaluate residuals of TBI, the Veteran described recurrent headaches.  The VA examiner, in listing "COGNITIVE IMPAIRMENT AND OTHER RESIDUALS," listed the Veteran's headaches as a subjective symptom which may be seen at the Veteran's level of TBI impairment.  A similar assessment was provided during a July 2011 TBI examination.

On the other hand, the record does not contain any direct competent, credible opinion that the Veteran's headaches are not a symptom associated with his TBI.  

Based on the foregoing, the Board finds that the evidence of record is, at least, in equipoise with regard to the matter of whether the Veteran's headaches are proximately due to his service-connected TBI residuals.  To the extent that there is any reasonable doubt as to this critical inquiry, that doubt is resolved in the Veteran's favor.  Accordingly, with resolution of reasonable doubt in the Veteran's favor, service connection is established for headaches.

With respect to the erectile dysfunction claim, the Veteran alleges that his erectile dysfunction has been caused and/or aggravated by medications taken for service-connected disability.  The exact onset of the Veteran's erectile dysfunction is not well-documented.  However, an April 2009 VA genitourinary examination report recorded the onset of erectile dysfunction in 2006.  This examiner did not clarify whether the erectile dysfunction started before or after service discharge in January 2006.  

The April 2009 VA examiner first noted that the most likely etiology for the Veteran's erectile dysfunction was "[m]edication," but the examiner did not state which medications were causing erectile dysfunction.  The examiner did state that the Veteran's erectile dysfunction was not caused by or a result of his blood pressure medications (diltiazem, hydrochlorothiazide and atenolol) on the rationale that his erectile dysfunction started in 2006, and the Veteran started taking high blood pressure medications in 2007.  The examiner did not opine as to whether the Veteran's blood pressure medications had aggravated erectile dysfunction beyond the normal progress of the disorder.

An August 2009 VA TBI examiner also opined that the most likely etiology for the Veteran's erectile dysfunction was medication, but this examiner did not identify the medication. 

On the other hand, a May 2010 VA mental disorders examiner opined that the Veteran's prescribed medications for his service-connected depressive disorder, which included sertraline, quetiapine and lamotrigine, caused a side effect of sexual dysfunction and erectile dysfunction.

A November 2010 VA clinician assessed the Veteran's erectile dysfunction as multi-factorial due to an organic basis, multiple medications and co-morbidities.  No further clarification was provided.

A June 2011 VA TBI examiner opined that the most likely cause of the Veteran's ED was his "[p]sychological condition."  A July 2011 VA genitourinary examiner provided the same opinion.

In addition to the medical opinion cited above, the Veteran has submitted information pertaining to his prescribed medications which indicate that clonazepam may result in a change of sexual desire, and that sertraline may cause a decrease in sexual ability including ejaculation delay.  Notably, both of these medications have been prescribed for the Veteran's service-connected depressive disorder NOS.

Overall, the record contains competent, medical opinions which relate the Veteran's erectile dysfunction as being proximately due to his service-connected depressive disorder NOS, to include medications taken for his depressive disorder NOS.  These opinions are consistent with the labeling precautions for sertraline advising that this drug may cause a decrease in sexual ability including ejaculation delay.  There is no direct competent, credible opinion that the Veteran's erectile dysfunction is not proximately due to the Veteran's service-connected depressive disorder NOS, to include medications taken for his depressive disorder NOS.  Based on the foregoing, the Board finds that the competent, probative medical opinion evidence is at least in equipoise with regard to the matter of whether the Veteran's erectile dysfunction is proximately due to his depressive disorder NOS, to include medications taken for his depressive disorder NOS.  To the extent that there is any reasonable doubt as to this critical inquiry, that doubt is resolved in the Veteran's favor.  Accordingly, with resolution of reasonable doubt in the Veteran's favor, service connection is established for erectile dysfunction.



ORDER

The appeal as to the issue of entitlement to service connection for bilateral hearing loss is dismissed.


The appeal as to the issue of entitlement to service connection for chest pain is dismissed.

The appeal as to the issue of entitlement to service connection for chronic fatigue syndrome is dismissed.

The appeal as to the issue of entitlement to service connection for PTSD is dismissed.

The appeal as to  the issue of entitlement to service connection for periodontal disease is dismissed.


The appeal as to the issue of entitlement to service connection for a kidney disability is dismissed.

The appeal as to the issue of entitlement to an initial rating greater than 10 percent for sinus bradycardia is dismissed.

The appeal as to the  issue of entitlement for higher ratings for left frontal scar formation, left periorbital scar and occipital scar, initially evaluated as noncompensable from January 26, 2006 to January 4, 2010, and 20 percent disabling since January 5, 2010, is dismissed.

The appeal as to the issue of entitlement to an initial, compensable rating for right epididymitis is dismissed.

Service connection for headaches is granted.

Service connection for erectile dysfunction is granted.


REMAND

The Board's review of the claims file reveals that further AOJ action on the remaining claims on appeal is warranted.

Since his discharge from service in January 2006, the Veteran has filed multiple claims seeking VA compensation for numerous diseases and disabilities, as well as VA compensation for periods of hospitalization, which has led to the complicated appeals stream described in the Introduction, above.  Unfortunately, due to the complexity of this case created by the volume of claims filed and the repeated submissions by the Veteran over the last decade, the Board finds that the claims being remanded require further development prior to any further appellate review.

The first matter the Board must address involves the actual claims on appeal.  The most recent SSOC, dated August 2013, listed 20 separate issues, an August SOC listed three issues and a November 2013 SOC listed 3 additional issues.  However, the Veteran withdrew 2 issues (the initial ratings for tinnitus and sleep apnea) prior to certification.  The Board will briefly describe the adjudicative deficiencies only.

The record reflects that the August 2013 SSOC failed to address the properly appealed issues of entitlement to service connection for liver disease and low white blood cell count.  The Board finds that there is no written indication that these claims were withdrawn.

The August 2013 SSOC also did not address the issue of entitlement to a higher initial rating for right knee disability.  Notably, a June 2011 AOJ rating decision concluded that the Veteran had raised a new issue of entitlement to an increased rating for right knee disability in January 2010, but the record already reflected a perfected appeal on the initial rating assigned.  Notably, this same rating decision erred with respect to the adjudication for a higher rating for hypertension by stating that an increased rating claim had been filed in January 2010 when the record already reflected a perfected appeal on the initial rating assigned.

Additionally, the August 2013 SSOC vaguely listed an issue of "[e]ntitlement to a total temporary evaluation because of hospital treatment in excess of 21 days for a service connected condition (38 CFR 4.29)."  As discussed above, the Veteran had properly appealed three separate temporary total rating issues to the Board.  

Thus, the Board has revised the issues listed on the title page to reflect the claims properly appealed to the Board at this time.  On remand, the Board will request corrective actions on these issues involving readjudication of the claims and, if the benefits are not granted in full, the issuance of an SSOC.

The Board next observes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992).  

The record reflects that the AOJ obtained complete VA treatment records for the time period from January 2006 to August 2007 (Volumes 1 and 2), from January 2008 to December 2008 (Volume not numbered), and from March 2009 to August 2013 (Volume 9, VBMS and Virtual VA).  Unfortunately, the record reflects that pertinent records exist between the gap of VA clinic records from August 2007 to January 2008.  In this regard, the available VA treatment records reference the Veteran undergoing arthroscopic surgery for his right knee in September 2007 which involved chondroplasty with removal of excess fluids and "free fragments."  The actual surgical records are not associated with the claims file.  Thus, it is unclear whether this surgery involved removal of meniscus that may require the application of DC 5259 (symptomatic removal of semilunar cartilage). 

The Board further notes that the Veteran has reported treatment at the Vet Center located in Arecibo, Puerto Rico.  See, e.g., Written statement received in September 2007 (Volume 2); written statement received in March 2010; and written statement received in October 2011 (Volume not numbered).  The Veteran has provided partial copies of these records, but it is clear that the records provided are not complete records.  Vet Center records are deemed generated by VA agents or employees under the Secretary's control and, thus, are deemed constructively of record.  See Dunn, 11 Vet. App. at 466-67 (1998) (citing to Bell v. Derwinski, 2 Vet. App. 611 (1992) and Department of Veterans Affairs, Federal Benefits for Veterans and Dependents, 85 (1997 ed.)).

The Board further observes that the record does not include the Veteran's VA Vocational and Rehabilitation file, which may contain relevant information pertaining to some of the issues on appeal.  See VA Form 28-1900 (Disabled Veterans Application for Vocational Rehabilitation) received December 2006.

Hence, the AOJ should obtain from the San Juan VA Medical Center (VAMC) and Mayaguez Outpatient Clinic (OPC) all outstanding, pertinent records of evaluation and/or treatment of the Veteran from August 2007 to January 2008 (including all hospitalization and surgery records related to right knee arthroscopic surgery in September 2007), from December 2008 to March 2009, and since August 2013-as well as the Veteran's Vocational and Rehabilitation folder and complete records from the Vet Center in Arecibo, Puerto Rico-following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

The Board next notes that, with respect to the service connection claims, the Veteran has raised theories of entitlement which have not been considered by the AOJ.  In general, the Board has a duty to discuss all theories of entitlement reasonably raised by the record.  See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008).  The Board must also consider all reasonably raised theories even if not specifically raised by the claimant.  See Douglas v. Derwinski, 2 Vet. App. 435 (1992) (evidence reasonably raising a service-connection theory not specifically raised by the claimant must be considered in adjudicating a claim).  In the context of a service connection claim, theories of entitlement such as direct service connection, secondary service connection and presumptive service connection are deemed as part of the appeal regardless of when the issue has been raised in the record.  See Bingham, supra. 

During the prosecution of his service connection claims, the Veteran has raised several different theories for his entitlement to service connection for low white blood cell counts, elevated liver enzymes, joint pain, gastrointestinal symptoms and his skin disorder.  He has specifically alleged that his disabilities are due to his service in the Persian Gulf which included Bahrain, Haifa, Jabaal Ali and the Persian Gulf waters.  See, e.g., VA Form 21-4138 received July 2007 (Volume 1); and VA Form 9 received in December 2008 (Volume 6).

Presumptive service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air 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.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War.   See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d)(1).  The Persian Gulf War begins on August 2, 1990 and has not been ended by Presidential proclamation or law.  38 C.F.R. § 3.2(i).  The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d)(2).

The Veteran's service personnel records (SPRs) document that he served in the Arabian Gulf aboard the U.S.S. ENTERPRISE during the Persian Gulf War period.  Thus, the presumptive service connection provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are for consideration.

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service-connection.

The term undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Further, lay persons are considered competent to report objective signs of illness.  Id.

An undiagnosed illness is defined as a condition that, by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  38 C.F.R. § 3.317(a)(1)(ii).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b). 

Medically unexplained chronic multisymptom illnesses are defined by a cluster of signs or symptoms, and included chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome (IBS).

Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).

Effective August 15, 2011, VA amended 38 C.F.R. § 3.317 to implement the Secretary's decision that there is a positive association between service in Southwest Asia during the Persian Gulf War and subsequent development of functional gastrointestinal disorders (FGIDs).  See 76 Fed. Reg. 41,696-98 (July 15, 2011).  The rule clarifies that FGIDs fall within the scope of the existing presumption of service connection for medically unexplained chronic multisymptom illnesses under 38 C.F.R. § 3.317(a)(2)(i)(B).

Specifically, the amendment revised § 3.317(a)(2)(i)(B)(3) to remove "Irritable bowel syndrome" and replace it with the following language: "Functional gastrointestinal disorders (excluding structural gastrointestinal diseases)."  The amendment also adds an explanatory Note that reads as follows: 

Note to paragraph (a)(2)(i)(B)(3): Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract.  Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia.  These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing.  Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 

The final rule specifies that inflammatory bowel disease "IBD" and gastroesophageal reflux disease (GERD) are defined as "structural gastrointestinal diseases" characterized by abnormalities seen on x-ray, endoscopy, or through laboratory tests.  See 76 Fed. Reg. 41696 -01 (July 15, 2011).

Here, the Veteran is entitled to consideration for presumptive service connection for his claimed disabilities based upon consideration of the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.  To date, the Veteran has not been provided VCAA compliant notice of these provisions, and the AOJ has not considered his service connection claims pursuant to these provisions.  Thus, the service connection claims must be remanded for corrective VCAA notice as well as development and adjudication for his Persian Gulf War illness theory.

Parenthetically, the Board also observes that the Veteran alleges that his disabilities are related to anthrax vaccinations he received during active service.  See, e.g., VA Form 21-4138 received October 2006 (Volume 1) and written statement received in November 2007 (Volume 3).  There are no specific developmental guidelines for claims involving disability resulting from the anthrax vaccine.  However, in support of his claim, the Veteran has submitted an article discussing that anthrax vaccine risks include muscle or joint aches, headaches, fatigue, chills and rashes.  His SPRs confirm that he received 5 Anthrax shots between March 1998 and January 2000.  Thus, this theory of causation must be considered by the AOJ on remand.

In addition to these theories of entitlement which pertain to most of the service connection claims which must be considered on remand, the Board finds that further medical examination and opinion must be obtained on more specific matters pertaining to certain claims on appeal.

Pursuant to VA's duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (a) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) established that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service.  38 C.F.R. § 3.159.  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the Veteran's military service, is a low threshold.  McLendon, 20 Vet. App. at 83.

As regards the service connection claims, first addressing alleged tinea versicolor and tinea corporis, the Board notes that the  Veteran, in addition to alleging that his skin disorder is due to his service in the Persian Gulf and/or is due to receiving anthrax vaccinations, alleges that his skin disorder results from his exposure to fuel and chemicals as an aircraft mechanic as well as hazardous substances during HAZMAT duties.  See. e.g., VA Form 21-4138 received July 2007 (Volume 1).  He further alleges that his skin disorder was aggravated due to excessive heat and sunlight exposure during his Persian Gulf service.

The Veteran's enlistment examination, dated March 1988, noted the presence of "moderate" tinea versicolor over his arms, chest and back.  He also manifested scaliness and xerosis over both elbows.  A June 1989 military examination noted tinea versicolor involving the back and arms.  In August 1990, he reported spots over his body for the last three months.  Examination indicated an assessment of tinea versicolor.  He was seen for a history of scaly, pruritic patches on his chest, back and left arm in September 2005 which were assessed as tinea versicolor.  At that time, he was prescribed medications.  In December 2005, he reported symptoms of white spots on his upper chest, upper back and portion of his arms which had worsened over the last three months.  He was assessed with tinea versicolor.

The Veteran's SPRs confirm that his military duties included aircraft maintenance and HAZMAT duties.

Here, the record reflects, and the Veteran concedes, that he entered service with tinea versicolor noted on his entrance examination.  Thus, the Board may only service connect this skin disorder under an aggravation theory.  See 38 U.S.C.A. §§ 1111, 1153.  The STRs reflect treatment for tinea versicolor on several occasions.  At his last treatment in December 2005, he self-described his skin disorder as worsening.  On appeal, the Veteran describes his skin disorder as worsening from "very few and little" spots on his arms, neck and back on service entry to an extensive involvement of his face, stomach and head upon service discharge.  

On this record, the Board finds that examination and opinion is needed to resolve whether the Veteran's tinea versicolor was aggravated beyond the normal progress of the disorder during active military service.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As previously discussed, the Veteran had documented service in the Persian Gulf and consideration of the provisions of 38 U.S.C. § 1117(a)(1), for objective indications of a qualifying chronic disability, is also warranted.  On remand, the Veteran should also be afforded a VA Gulf War examination to determine whether all of his skin symptoms are attributable to a known clinical diagnosis and to provide an etiological opinion for each diagnosed condition.  Furthermore, the VA examiner should specifically consider whether any current skin disorder results from the Veteran's anthrax vaccinations, exposure to fuels and other chemicals while performing aircraft maintenance duties and HAZMAT duties and/or his excessive sun heat and exposure while stationed in the Persian Gulf.


The Veteran also contends that he suffers from residuals of a fracture of the 2nd metacarpal of the left hand.  His STRs confirm that, in June 2000, he incurred an open fracture to the 2nd metacarpal of the left hand.  However, the Veteran has not been provided VA examination to determine whether he manifests any current residual disability.  Under the circumstances noted above, the Board also finds that examination and opinion is needed to resolve the matter of service connection for residuals of fracture of the 2nd metacarpal of the left hand.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79 (2006).


As for liver disability, the Veteran seeks to establish his entitlement to service connection for a liver disorder.  An August 2006 Department of Homeland Security examination report advised the Veteran of an elevated alanine aminotransferase (ALT).  A subsequent evaluation by VA, beginning in December 2007, reflected findings of fatty infiltration of the liver with mild splenomegaly.  The Veteran recalls his physicians reporting that medications taken for his skin disorder could cause liver damage, including a prescription of terbinafine (a.k.a. Lamisil) to treat tinea versicolor by VA.  

A December 2007 VA clinic record included the following assessment: "ABORMAL LFTS: ABDOMINAL SONOGRAM REQUESTED.  DISCONTINUE LAMISIL PO."  Another VA clinic record in December 2007 noted that the Veteran's liver enzymes were high most probably as a side effect of "terbinaine."

On this record, the Board also finds that examination and opinion is needed to resolve whether the Veteran's liver abnormality is the manifestation of a disease due to his Persian Gulf War exposures and/or anthrax vaccinations.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, supra.  .  Given the Veteran's pursuit of a service connection claim for tinea versicolor, the Board will request the VA examiner to address whether the Veteran's liver disease has been caused and/or aggravated beyond the normal progress of the disorder by medications taken for tinea versicolor.

With respect to claimed low white blood cell count, the  Veteran contends that his service in the Persian Gulf has resulted in an undiagnosed illness manifested by a low white blood cell count.  Alternatively, he argues that his anthrax vaccination has caused an immunization disorder responsible for his low white blood cell count.  On this record, the Board also finds that examination and opinion is needed to resolve whether the Veteran's low white blood cell count is the manifestation of a disease due to his Persian Gulf War exposures and/or anthrax vaccinations.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, supra. 


As regards the low back, the Veteran argues that his low back disability results from several in-service traumas, including being hit with an aircraft engine, being involved in car accidents and lifting heavy items as an aircraft mechanic during his 17 years of service.   Alternatively, he claims that his low back disability is proximately due to a gait abnormality from his service-connected right knee disability.  See, e.g., VA Form 21-4138 received February 2008 (Volume 1) and written statement received in June 2008 (Volume 2).In support of his claim, the Veteran has submitted articles discussing that low back pain can be caused by a gait abnormality.  He has also submitted a Navy Safety Center advisement stating that Hand-Arm Vibration (HVA) and Whole Body Vibration (WBV) from the use of pneumatic tools may result in HAVS and/or WBV-related degenerative disc disease.

The Veteran's STRs reflect that he incurred multiple TBIs.  He was evaluated for low back injury following a motor vehicle accident in September 2004, and incurred wounds to the back during a September 2005 MVA.  He is service-connected for a right knee disability.  His report of using pneumatic tools in service, and lifting heavy items as an aircraft mechanic during his 17 years of service, is consistent with his known circumstances of service.  The Veteran has been diagnosed with degenerative disc disease.  On this record, the Board also finds that examination and opinion is needed to resolve whether the Veteran's current low back disability is causally related to events during active military service.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Regarding the right eye, the Veteran seeks to establish his entitlement to service connection for residuals of a right eye injury.  His STRs in June 1998 demonstrate that his right eye was struck with a piece of metal resulting in a small hematoma to the right side of the eye.  In June 1999, he incurred another trauma to the right eye resulting in subinguinal hemorrhage.  

The Veteran claims residual right eye disability involving right eye socket pain.  In support of his claim, he has submitted a medical article discussing that blunt and penetrating trauma to the eye can produce damage as a result of sudden compression and indentation of the globe with possible late effects including cataract, retinal detachment and glaucoma.  He also refers to an August 2008 x-ray examination of the orbits, to evaluate for the presence of metallic foreign bodies prior to undergoing a magnetic resonance imaging (MRI) scan, which stated, inter alia, that "[t]he overlying soft tissues show swelling, calcifications, or radiopaque foreign bodies."  However, this report also provided an impression of "no x-ray evidence of metallic foreign body [in] the orbits."

The Board further observes that the Veteran is service-connected for residuals of TBI.  A March 2009 optometry consultation in the VA clinic setting resulted in an assessment that defects found in Humphrey's test were compatible with TBI.  An April 2009 TBI consultation in the VA clinic setting noted that visual field (VF) testing was suggestive of a non-organic visual field loss as seen in TBI patients.  

In October 2009, VA authorized a fee-basis neuro-ophthalmologist examination based upon an impression of tunnel vision associated with TBI.  A February 2010 report from this neuro-ophthalmologist reported the Veteran to have normal responses to Flashed and patterned Visual Evoked Response (VER), but noted that the pattern and depth of peripheral vision loss due to TBI were not determined by the type of test performed.

On this record, the Board also finds that examination and opinion is needed to resolve whether the Veteran manifests any residual disability of his right eye due to the in-service trauma, or whether he manifests any visual deficit in the right eye as a TBI residual.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).

With respect to claimed gastrointestinal disability, the  Veteran reports recurrent episodes of gastroenteritis since service.  His STRs reflect treatment for gastroenteritis in December 1990, March 1992, January 1993 and May 1994.  In March 1992, his gastroenteritis was described as "recurring."  His VA clinic records reflect treatment for gastroenteritis in March 2010.  

Here, the Veteran reports recurrent episodes of gastroenteritis.  He also alleges that his gastrointestinal symptoms are attributable to an undiagnosed illness.  As noted above, on August 15, 2011, VA amended 38 C.F.R. § 3.317 to implement the Secretary's decision that there is a positive association between service in Southwest Asia during the Persian Gulf War and subsequent development of FGIDs, which fall within the scope of the existing presumption of service connection for medically unexplained chronic multisymptom illnesses under 38 C.F.R. § 3.317(a)(2)(i)(B).

On this record, the Board also finds that examination and opinion is needed to resolve whether the Veteran's gastrointestinal disorder(s) result from his active military service.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, supra.    ).  In so doing, the VA examiner should specifically consider whether any current gastrointestinal disorder results from his Persian Gulf War exposures and/or his anthrax vaccinations.

As for the cervical spine, the Veteran argues that his cervical spine disability results from several in-service traumas, including being hit with an aircraft engine, being involved in car accidents and lifting heavy items as an aircraft mechanic during his 17 years of service.  He has submitted an article discussing how TBI can result in chronic neck pain.  In addition, as discussed above, the Navy Safety Center advisement stated that use of pneumatic tools may result in HAVS and/or WBV-related degenerative disc disease.

The Veteran's STRs reflect that he incurred multiple TBIs.  He was evaluated for neck pain following a motor vehicle accident in June 1992.  Following x-ray examination, he was assessed with paracervical muscle spasm and prescribed a soft cervical collar.  In August 1993, his left upper body was struck when moving an aircraft engine.  The Veteran struck his head on a wheel door in February 1994.  He was evaluated for a possible neck injury following a motor vehicle accident in September 2004.  In May 2005, he incurred lacerations to his right forehead after tripping and hitting his head on the corner of the stairs.  He incurred a laceration to the head due to an assault in September 2005, and was prescribed a neck collar.

On this record, the Board also finds that examination and opinion is needed to resolve whether the Veteran's current cervical spine disability is causally related to events during active military service.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, supra.



With respect to the higher rating claims, first addressing right knee disability, as discussed above, the Veteran reportedly underwent arthroscopic surgery in September 2007 involving a chondroplasty with removal of excess fluids and "free fragments."  He last underwent VA examination of his right knee in April 2011 which included an MRI examination interpreted as showing, inter alia, meniscal abnormality.  In light of the passage of time since the April 2011 VA examination, the reported history of removal of "free bodies" and the meniscal abnormality found on MRI examination, the Board finds that additional examination of the Veteran's right knee which specifically addresses whether he manifests a meniscal disorder would be helpful in deciding this case.  See generally 38 C.F.R. § 4.71a, DC 5258 (removal of semilunar cartilage) and DC 5259 (symptomatic removal of semilunar cartilage).The Board reminds the AOJ that, on remand, the case at hand involves a claim for a higher initial rating.

With respect to a TBI, as discussed above, the Board has awarded service connection for headaches as being proximately due to service-connected TBI.  The record also includes optometrist opinions that the Veteran manifests a visual field loss deficit, or tunnel vision, compatible with TBI.  The most recent VA TBI examination report, dated July 2011, found that the Veteran's visual spatial orientation was normal.  However, this examiner did not specifically evaluate the Veteran for visual field loss or discuss the optometry findings of a possible visual field loss compatible with TBI.  Thus, the Board finds that an additional VA TBI examination which specifically addresses the reported visual field deficit due to TBI would be helpful in deciding this claim.   See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, supra..

The Veteran is hereby notified that failure to report to any scheduled examination(s) without good cause, may well result in denial of the claim(s).   See 38 C.F.R. § 3.655  (2015).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  

Prior to arranging for the Veteran to undergo further examinations, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake additional appropriate action to obtain and associate with the claims file all  outstanding, pertinent records, to include obtaining the Veteran's Vocational and Rehabilitation folder, as well as all outstanding VA outpatient treatment and Vet Center records.. 

The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims remaining on appea1., explaining to the Veteran  he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period).  

The AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records-particularly for his VA fee-basis providers of treatment for which the AOJ has been unable to obtain through VA.  See VA Memorandum of Unavailable "Federal" Records dated May 2012 (Volume 10).  These providers should include Dr. Omar Perez, Perrea Hospital, Dr. Jaime Grodzinski and a fee basis dermatology evaluation by Dr. Rafael Velez in approximately December 2007.  The AOJ should also provide the Veteran corrective VCAA notice which advises him of the criteria for establishing service connection for undiagnosed illness or other chronic qualifying disability and the criteria for secondary service connection under 38 C.F.R. § 3.310.  


Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015).

The actions identified herein are consistent with the duties imposed by the VCAA.  See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal.  The AOJs adjudication of the initial rating claims should include consideration of whether staged rating, pursuant to Fenderson (cited above), is appropriate.

Notably, the  Board defers consideration of the remaining issues on appeal not specifically discussed in this remand  for completion of the development discussed above, which includes obtaining relevant private and VA treatment records, properly adjudicating the initial rating claims, separately evaluating the claims for temporary total ratings, and developing and adjudicating the service connection claims.  These actions could potentially affect the merits of the remaining claims on appeal.

As a final matter, the Board notes that in an October 2009 rating decision, the AOJ granted service connection for TBI and assigned an initial 40 percent rating, effective April 29, 2009.  In March 2010, the Veteran submitted an NOD (Volume 7) with respect to the effective date assigned for the award of service connection for TBI, the next step in the appellate process.  See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1997); Holland v. Gober, 10 Vet. App. 433, 436 (1997).  Consequently, this matter must be remanded to the AOJ for the issuance of an SOC.  Id.  .  

In a rating decision dated July 2006 (Volume 1), the AOJ denied a claim of entitlement to service connection for lipoma in the right scapular area.  In August 2006, the Veteran filed an NOD with respect to this denial.  Similarly, by letter dated February 7, 2014, the AOJ notified the Veteran of an award of DEA benefits for M.R. effective May 14, 2010 (Virtual VA).  In September 2014, the Veteran submitted an NOD (VBMS) with respect to the effective date of award assigned.  However, the AOJ has not yet issued an SOC with respect to these claims, the next step in the appellate process.  See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. at  240-41 (1997); Holland, 10 Vet. App. at 436.  Consequently, these matters must be remanded to the AOJ for the issuance of an SOC.  Id.  

The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202.

Accordingly, these matters are hereby REMANDED for the following action:

1.  Furnish to the Veteran and his representative an SOC with respect to the denial of service connection for lipoma in the right scapular area (in a July 2006 rating decision), the denial of an effective date earlier than April 29, 2009 for the award of service connection for TBI (in the October 2009 rating decision, and the denial  of effective date earlier than May 14, 2010 for the award of DEA benefits for M.R (in the February 2014 decision),.  Also provide a VA Form 9, and afford them appropriate opportunity to perfect an appeal as to any identified matter(s). 

The Veteran and his agent are hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-as regards the matters identified above, within 60 days of the issuance of the SOC.

2.  Obtain the Veteran's Vocational and Rehabilitation folder

3.  Obtain from the San Juan VAMC and Mayaguez OPC all outstanding, pertinent records of evaluation and/or treatment of the Veteran from August 2007 to January 2008-including all hospitalization and surgery records related to right knee arthroscopic surgery in September 2007, from December 2008 to March 2009, and since August 2013-as well as and complete records from the Vet Center in Arecibo, Puerto Rico-following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.  All records and/or responses received should be associated with the claims file. 
 
4.  Send to the Veteran and his agent a letter requesting that the Veteran provide additional information and/or evidence pertinent to the claims remaining on appeal.  Specifically, request that the Veteran provide, or provide appropriate authorization to obtain, all outstanding, pertinent, private medical records-particularly for his VA fee-basis providers of treatment for which the AOJ has been unable to obtain through VA including Dr. Omar Perez, Perrea Hospital, Dr. Jaime Grodzinski and a fee basis dermatology evaluation by Dr. Rafael Velez in approximately December 2007.

In the letter, provide corrective VCAA notice of the criteria for establishing service connection due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117, and the criteria for secondary service connection under 38 C.F.R. § 3.310.  

Also ,clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claims within the one-year period). 
 
5.  If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 

6.  After all available records and/or responses from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA Gulf War examination, by an appropriate physician, at a VA medical facility.  This examination should conform to the guidelines for conducting Gulf War examinations set forth in the Under Secretary for Health's Information Letter, dated April 28, 1998 (IL 10-98- 010), at a VA medical facility.  As indicated below, additional specialist examination(s) should be conducted as needed.

The contents of the entire claims file ( paper and electronic)  to include a complete copy of this REMAND, must be made available to each physician or other medical professional designated (as appropriate) to examine the Veteran, and each  examination report should include discussion of the Veteran's documented medical history and assertions.

Each physician must provide all examination findings, along with complete, clearly-stated rationale for the conclusions reached (to include citation to specific evidence and/or medical authority, as appropriate).

   a)  The primary Gulf War examiner should note and detail all reported and documented history of skin symptoms, liver abnormality, low white blood cell count, low back pain, right eye orbit pain, gastrointestinal symptoms, and cervical spine symptoms.  The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all these symptoms/abnormalities.
   
	b) The examiner should list all diagnosed disabilities associated with (i) the skin, (ii) the liver, (iii) abnormal white blood cell count, (iv) low back pain symptoms, (v) right orbit pain symptoms, (vi) gastrointestinal symptoms and (vii) neck pain symptoms, and the symptoms/abnormalities associated with each disability.  If all symptoms/abnormalities are associated with diagnosed condition(s), additional specialist examinations for diagnostic purposes are not needed.  With respect to all gastrointestinal symptoms, the examiner must specify whether the symptoms are attributable to a "functional gastrointestinal disorder" or a structural gastrointestinal disease-such as inflammatory bowel disease or GERD- characterized by abnormalities seen on x-ray, endoscopy, or through laboratory tests.

   c) If any symptoms involving (i) the skin, (ii) the liver, (iii) abnormal white blood cell count, (iv) the low back, (v) the right orbit, (vi) the gastrointestinal system and/or (vii) the neck symptoms have not been determined to be associated with a known clinical diagnosis, further specialist examination(s) will be required to address these findings, and should be ordered by the primary examiner.

d) If any specialist examination(s) is/are warranted, the primary examiner should provide the specialist with all examination reports and test results, specify the relevant symptoms that have not been attributed to a known clinical diagnosis and request that the specialist determine which of these, if any, can be attributed in this Veteran to a known clinical diagnosis and which, if any, cannot be attributed in this Veteran to a known clinical diagnosis.

	e) For the already diagnosed tinea versicolor, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e.,  50 percent or greater probability) that such skin disorder was aggravated (worsened beyond the normal progress of the disorder) during active military service.

With respect to any diagnosed skin disorder other than tinea versicolor, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e.,  a 50 percent or greater probability) that the disability is medically-related to in-service injury or disease?

In addressing the above, , the examiner must y consider and discuss the service treatment records and post-service treatment records, including the March 1988 enlistment examination noting the presence of "moderate" tinea versicolor over the Veteran's arms, chest and back as well as scaliness and xerosis over both elbows; a June 1989 military examination noting tinea versicolor involving the back and arms; an August 1990 STR wherein the Veteran reported spots over his body for the last three months with examination indicating an assessment of tinea versicolor; a September 2005 STR diagnosing scaly, pruritic patches on his chest, back and left arm as tinea versicolor; a December 2005 STR wherein the Veteran described a worsening of his symptoms of white spots on his upper chest, upper back and portion of his arms; the Veteran's post-service descriptions of a worsening of his skin problems in service due to military exposure to fuels and chemicals in association with his duties as an aircraft mechanic, chemical exposures during HAZMAT duties, and his theory that his skin disorder(s) has/have been caused and/or aggravated by an immune system disorder caused by anthrax shots as well as his reported exposure to excessive sunlight and heat during his service in the Persian Gulf.  The examiner's attention is directed towards photographs submitted by the Veteran in November 2007 (Volume 3).

f) For each diagnosed disorder manifested by liver abnormalities, the physician should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability (1) had its onset in or is otherwise medically related to service; or, if not.  (2) disability  has been caused by, or aggravated (worsened beyond the normal progress of the disorder), by medications prescribed for tinea versicolor.

In addressing the above,  the examiner must consider  and discuss the service treatment records and post-service treatment records, including the December 2006 Department of Homeland Security letter reporting that the Veteran had an elevated ALT, the December 2007 VA clinic records noting that the Veteran's liver enzymes were high most probably as a side effect of Lamisil, and the Veteran's history of 5 anthrax vaccinations.

   g) For each diagnosed disorder manifested by low white blood cell count, the physician should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service.

In rendering these opinions, the examiner should specifically consider and discuss the service treatment records and post-service treatment records, including the Veteran's history of 5 anthrax vaccinations.

   h) For each diagnosed disorder manifested by low back pain, the physician should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability (1)  had its onset in or is otherwise medically related to service; or, if not (2) has been caused OR aggravated beyond the normal progress of the disorder by service-connected right knee disability.

In addressing the above,  the examiner should specifically consider and discuss the service treatment records and post-service treatment records, including Veteran's STRs reflecting that he incurred multiple TBIs, an August 1993 STR reflecting an upper body injury when moving an aircraft engine, a September 2004 STR reflecting an evaluation for low back injury following a motor vehicle accident, a September 2005 STR noting wounds to the back following a motor vehicle accident, the Veteran's service history of lifting heavy items as an aircraft mechanic, the history of any gait abnormality due to the service-connected right knee, the articles discussing that low back pain can be caused by a gait abnormality, and the Navy Safety Center advisement stating that Hand-Arm Vibration (HVA) and Whole Body Vibration (WBV) from the use of pneumatic tools may result in HAVS and/or WBV-related degenerative disc disease.

	i) For each diagnosed disorder involving right orbit pain, the physician should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service.  

In addressing the above, the examiner must  specifically consider and discuss the service treatment records and post-service treatment records, including the June 1998 STRs demonstrate right eye trauma with a piece of metal resulting in a small hematoma to the right side of the eye, a June 1999 STR reflecting right eye trauma resulting in subinguinal hemorrhage, the medical article discussing that blunt and penetrating trauma to the eye can produce damage as a result of sudden compression and indentation of the globe with possible late effects including cataract, retinal detachment and glaucoma, and the August 2008 VA x-ray examination of the orbits, to evaluate for the presence of metallic foreign bodies prior to undergoing a magnetic resonance imaging (MRI) scan, which stated, inter alia, that "[t]he overlying soft tissues show swelling, calcifications, or radiopaque foreign bodies" but also reported "no x-ray evidence of metallic foreign body [in] the orbits."

	j) For each diagnosed disorder of the gastrointestinal system, the physician should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service.  

In addressing the above,  the examiner must specifically consider and discuss the service treatment records and post-service treatment records, including the STRs in December 1990, March 1992, January 1993 and May 1994 reflecting treatment for gastroenteritis, the March 1992 STR describing gastroenteritis as "recurring," a March 2010 VA clinic record reflecting treatment for gastroenteritis, and the 5 anthrax vaccinations received by the Veteran during service.

	k) For each diagnosed disorder manifested by neck pain, the physician should render an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service.

In rendering these opinions, the examiner should specifically consider and discuss the service treatment records and post-service treatment records, including the Veteran's STRs reflecting that he incurred multiple TBIs, a June 1992 STR reflecting an evaluation for neck pain following a motor vehicle accident assessed as paracervical muscle spasm with the prescription of a soft cervical collar, an August 1993 reflecting a left upper body injury when being struck by an aircraft engine, a February 1994 STR reflecting that the Veteran struck his head on a wheel door in February 1994, an evaluation for possible neck injury following a motor vehicle accident in September 2004, a May 2005 STR reflecting that the Veteran incurred lacerations to his right forehead after tripping and hitting his head on the corner of the stairs, a laceration to the head due to an assault in September 2005 wherein he was prescribed a neck collar, the Veteran's military history of lifting heavy objects as an aircraft mechanic, and the Navy Safety Center advisement stating that use of pneumatic tools may result in HAVS and/or WBV-related degenerative disc disease.


6.  Arrange for the Veteran to  undergo VA examination, by an appropriate physician, to obtain information as to  whether he manifests any residual disability related to the fracture of the 2nd metacarpal of the left hand.

The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. 

All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

The examiner should clearly identify all  disorder(s) related to the left 2nd metacarpal currently present, or present at any point pertinent to the current claim on appeal (even if now asymptomatic or resolved).  

Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e.,  a 50 percent or greater probability) that the disability is medically-related to in-service injury or disease, to include the June 2000 fracture. 

In rendering the requested opinion, the examiner should specifically consider and discuss the service treatment records and post-service treatment records, including the June 2000 STR reflecting an open fracture to the 2nd metacarpal of the left hand.


8.  Arrange for the Veteran to undergo VA examination, by an appropriate medical professional,  to assess the severity of his right knee disability. 

The contents of the entire claims file (paper and electronic)  to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions.  All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail.

All examination findings, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 

The examiner should conduct range of motion testing of the right knee (expressed in degrees).  The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right knee.  If pain on motion is observed, the examiner should indicate the point at which pain begins.  In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. 

The examiner should also indicate whether there is any lateral instability and/or recurrent subluxation in the right knee.  If instability is present, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. 

The examiner is further requested to review the Veteran's history of arthroscopic surgery in September 2007, the results from the April 2011 MRI, and any other relevant information to assess whether the Veteran has a history of removal of semilunar cartilage, or current history of dislocated semilunar cartilage.  

7.  Arrange for the Veteran to undergo VA TBI examination, by an appropriate VA physician (such as a specialist in neurology, neurosurgery, and/or psychiatry, who has had training and experience with TBI). 

The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the designated physician,  and the examination report should reflect consideration of the Veteran's documented medical history and assertions.  All indicated tests and studies (to include neuropsychological testing, if warranted) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

To ensure that the all medical findings are expressed in terms conforming to the amended schedular criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect as of October 23, 2008, the Board requests that the examination be completed in accordance with the Review Evaluation of Residuals of TBI (R-TBI) Disability Benefits Questionnaire (DBQ). 

Based on the examination results, the physician should provide an assessment of the current nature and severity of the service-connected TBI consistent with the revised schedular criteria for evaluating the residuals of TBI under 38 C.F.R. § 4.124a, Diagnostic Code 8045.  The physician is asked to specifically address the degree to which the service-connected disability is manifested by facets of cognitive impairment including memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. 

In making his or her assessment, the physician should identify all comorbid physical, neurological, or mental disorder(s), and state whether each is shown to be caused by the Veteran's TBI.  If not, then, with respect to each comorbid disorder identified, the physician should attempt to distinguish any symptoms and impairment attributable to such disability from identified residuals of a head injury.  If the manifestations cannot clearly be distinguished, the physician should clearly so state.

The physician should specifically address the Veteran's contentions regarding memory difficulties and the impact, if any, of his treatment with a speech pathologist.

Additionally, the physician should specifically address whether the Veteran manifests any visual deficit due to TBI with consideration given to a March 2009 optometry consultation in the VA clinic setting which resulted in an assessment that defects found in Humphrey's test were compatible with TBI, an April 2009 TBI consultation in the VA clinic setting noted that visual field (VF) testing was suggestive of a non-organic visual field loss as seen in TBI patients, an October 2009 VA authorization for a fee-basis neuro-ophthalmologist examination based upon an impression of tunnel vision associated with TBI, and a February 2010 report from this neuro-ophthalmologist who reported the Veteran to have normal responses to Flashed and patterned VER, but noted that the pattern and depth of peripheral vision loss due to TBI were not determined by the type of test performed.

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.

8.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  Stegall v. West, 11 Vet. App. 268 (1998). 
 
9.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority.  With respect to the rating claims for right knee disability, hypertension, depressive disorder NOS and TBI, the AOJ should give consideration of whether staged rating, pursuant to Fenderson (cited above), supra, is appropriate.

10.  If any benefit sought on appeal remains denied, furnish to the Veteran and his agent an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. 

The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999. 

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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).



______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs