Citation Nr: 1622469 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 10-29 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a cervical spine disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right shoulder disability. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left shoulder disability. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for asthma. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of groin surgery. 6. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a lump on the left side of head. 7. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for blackouts, fainting, and seizures. 8. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral leg fractures. 9. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arthritis of the hips, knees, and hands. 10. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus. 11. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral carpal tunnel syndrome, previously claimed as numbness and tingling in the hands. 12. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for peptic ulcer disease. 13. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches. 14. Entitlement to service connection for eczema. 15. Entitlement to service connection for traumatic brain injury. 16. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), mood disorder, and adjustment disorder, claimed as secondary to service-connected disabilities. 17. Entitlement to service connection for loss of bowel control, claimed as secondary to a service-connected lumbar spine disability. 18. Entitlement to service connection for loss of bladder control, claimed as secondary to a service-connected lumbar spine disability. 19. Entitlement to service connection for a dental disability for compensation purposes, claimed as upper and lower gum condition and missing teeth. 20. Entitlement to service connection for nosebleeds. 21. Entitlement to service connection for fibromyalgia. 22. Entitlement to service connection for chronic fatigue syndrome. 23. Entitlement to a rating greater than 40 percent for a lumbar spine disability. 24. Entitlement to a rating greater than 30 percent for gastritis with irritable bowel syndrome. 25. Entitlement to a rating greater than 30 percent for bilateral pes planus with plantar fasciitis. 26. Entitlement to a rating greater than 20 percent for right ankle tendinitis. 27. Entitlement to a rating greater than 20 percent for left ankle tendinitis. 28. Entitlement to a rating greater than 10 percent for residuals of intervertebral disc syndrome in the right lower extremity. 29. Entitlement to a rating greater than 10 percent for residuals of intervertebral disc syndrome in the left lower extremity. 30. Entitlement to a compensable rating for tinea cruris, to include the propriety of a reduction of rating from 30 percent to 0 percent, effective August 1, 2010. 31. Entitlement to a compensable rating for allergic rhinitis and chronic pharyngitis. 32. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to August 1982 and from August 1986 to August 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In September 2015, the Board remanded seven issues for to schedule a Board hearing at the RO. In October 2015, the Veteran indicated he had difficulty traveling and did not have anything to say or present at a hearing. He indicated he wanted his case certified to the Board without a hearing. The Veteran's hearing request is considered withdrawn and the Board will proceed with the case. 38 C.F.R. § 20.704(e) (2015). In October 2015, additional issues were certified to the Board and they are considered part of the current appeal. The issue of entitlement to service connection for a dental disability is addressed in this decision. The remaining issues are REMANDED to the Agency or Original Jurisdiction. FINDING OF FACT The preponderance of the evidence is against finding that the claimed dental disability, to include of the upper and lower gums and missing teeth, is due to in-service trauma or disease such as osteomyelitis. CONCLUSION OF LAW The Veteran does not have a dental disability for compensation purposes, to include of the upper and lower gums and loss of teeth. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.150 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the duties to notify and assist in development have been met. 38 U.S.C.A. §§ 5103, 5103A (West 2014). There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in January and August 2011of the information and evidence needed to substantiate and complete a claim for service connection for a dental condition, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The Board acknowledges it is remanding other issues to obtain records from the Social Security Administration. There is no reason to believe that those records would show in-service dental trauma or disease and the Board declines to defer the dental issue pending the receipt of those records. There is also no basis for a VA dental examination as the record contains findings sufficient to decide this issue. In December 2010, the Veteran claimed service connection for a dental disability described as an upper and lower gums condition with missing teeth. In January 2012, VA denied service connection for a dental disability for compensation purposes. The Veteran disagreed with the decision and perfected this appeal. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (2015). Dental disabilities are treated differently from other medical disabilities in the VA benefits system. Generally, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered disabling conditions and, therefore, they may not be service-connected except for the purpose of establishing entitlement to VA outpatient dental treatment. 38 C.F.R. § 3.381(a) (2015). The dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Loss of teeth, as claimed by the Veteran, is contemplated under Diagnostic Code 9913. The Note following the rating criteria indicates that these ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since that loss is not considered disabling. It is noted that having dental extractions during service is not tantamount to dental trauma, because trauma of teeth, even extractions, in and of itself, does not constitute dental trauma. VAOPGCPREC 5-97 (1997), 62 Fed. Reg. 15,566 (1997); Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010) (service trauma under the statute is an injury or wound produced by an external physical force during the performance of military duties, and does not include the intended result of proper medical treatment). Enlistment examinations in July 1981 and May 1986 do not include dental findings, but the May 1986 examination indicates that dental was "acceptable." Service treatment records show the Veteran underwent dental extractions. In September 1992, he was seen for trauma to the lip after he was hit in the mouth on the signal bridge. Dentition appeared within normal limits and no dental trauma was noted. On report of medical assessment in June 1996, the Veteran reported that he needed dentures and the corresponding physical examination noted multiple missing teeth. An April 2014 VA record shows the Veteran was seen in the dental clinic. Multiple missing teeth were noted and caries in teeth numbered 6 and 7. Periodontal assessment revealed moderate gingivitis. Planned procedures included fillings on teeth numbered 6 and 7 and extraction of 18. On review, the Veteran currently has missing teeth and gingivitis. The Board acknowledges that teeth were extracted during service. There is, however, no indication that any tooth loss was due to trauma or disease such as osteomyelitis. Under these circumstances, the criteria for service-connected compensation benefits are not met. 38 C.F.R. § 4.150 (2015). The preponderance of the evidence is against the claim the claim for service-connected compensation for a dental disability is denied. 38 C.F.R. § 3.102 (2015). The Board notes that the Veteran's overall service-connected schedular disability rating is 100 percent and thus, he is entitled to VA outpatient dental treatment. 38 C.F.R. § 17.161(h) (2015). ORDER Service connection for a dental disability for compensation purposes, claimed as an upper and lower gum condition and missing teeth, is denied. REMAND Additional development is needed in this appeal. 38 C.F.R. § 3.159(c) (2015). Information in the claims folder shows the Veteran filed for disability benefits from the Social Security Administration but that claim was denied. Those records are potentially relevant to the appeal issues and should be requested. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Updated VA medical center records should also be obtained. In May 2010, VA reduced the rating for tinea cruris from 30 percent to 0 percent, effective August 1, 2010. The Veteran disagreed with that decision and perfected this appeal. On review, the appeal issue is whether the reduction was proper and that does not necessarily include a claim for an increased rating. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992) (the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). In this case though, VA readjudicated the claim during the appeal period as one for increase and certified that issue. Accordingly, the Board has characterized the issue to include increased rating and the propriety of reduction. Percy v. Shinseki, 23 Vet. App. 37 (2009) (by treating an issue as part of an appeal, VA waived any objections to the adequacy of the appeal with respect to that issue). Throughout the appeal period, the Veteran complained about the adequacy of the VA skin examinations and in August 2009 and December 2009 statements, he reported that the condition was worsening and spreading. The February 2015 supplemental statement of the case notes that VA attempted to order a skin examination, but was told that the contracting staff was unable to reach the Veteran to schedule an appointment. Under these circumstances, additional attempts should be made to examine the Veteran. As the Veteran is also seeking service connection for eczema, the examination should address whether any eczema is related to service or a service-connected disability. The Board notes that an April 1992 service treatment record includes an assessment of "likely eczematous dermatitis, [rule out] neurodermatitis". Further, the examiner should indicate whether the Veteran's use of topical corticosteroids constitutes systemic therapy. Johnson v. McDonald, 27 Vet. App. 497 (2016). Review of VA records suggests the Veteran is receiving fee basis or private podiatry treatment. For example, a December 2014 non-VA care coordination note indicates the Veteran was having trouble ambulating and was having a great amount of pain. He wanted to go ahead and have surgery but needed another consult. The provider indicated she was requesting another "NVCC podiatry consult" for surgical treatment. An August 2015 Report of General Information documents the Veteran's report that he was having surgery on his foot. The Board is unable to locate any fee basis podiatry records in the claims folder and they should be requested. Additionally, given the suggestion of worsening symptoms and the possible need for surgery, the Board finds that a current examination is needed. 38 C.F.R. § 3.327 (2015). The February 2015 statement of the case included the issue of entitlement to service connection for adjustment disorder with depressed mood and the Board has combined that issue with the service connection for PTSD issue to be considered as a claim for all psychiatric disabilities found. Clemons v. Shinseki, 23 Vet. App. 1 (2009). At an October 2011 VA examination, the Veteran reported that he was hospitalized at the Portsmouth Naval Hospital in 1992, 1994, and 1995 for depression. Efforts should be made to obtain any inpatient clinical records. At an April 2010 VA examination, the diagnosis was adjustment disorder with depressed mood. The examiner indicated that the depression was a result of several factors, with the initial factor being an in-service fall in 1990. On review, the record does not contain credible evidence showing that injury occurred. The examination appears to be based on an inaccurate history and additional examination is needed. In this regard, VA treatment records include a diagnosis of mood disorder due to back injury and pain in a VA Mental Health Consult dated July 30, 2010. As the Veteran is service-connected for a lumbar spine disability, an opinion is needed as to secondary service connection. Throughout the appeal period, the Veteran reported several PTSD stressors, none of which have been verified. In November 2011 a Formal Finding on a Lack of Information Required to Verify Stressors in Connection to the PTSD Claim was made. Notwithstanding, the regulations governing PTSD were amended, effective on July 13, 2010. Specifically, that amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a claimed stressor is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3) (2015); 75 Fed. Reg. 39843-52 (July 13, 2010). The Veteran served during the Persian Gulf War and that provision may be applicable. However, the Board observes that personnel records do not show service in the Southwest Asia theater of operations on or after August 2, 1990. Effective March 19, 2015, VA adopted as final an interim rule adopting the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The provisions of the final rule shall apply to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014. The Secretary does not intend for the provisions of that final rule to apply to claims that have been certified for appeal to the Board or are pending before the Board, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit even if those claims are subsequently remanded to the AOJ. 80 Fed. Reg. 14308-09 (March 19, 2015); 79 Fed. Reg. 45093-99 (August 4, 2014). Information in the record shows that the issues of service connection for PTSD and for an adjustment disorder with depressed mood were certified to the Board in 2015. Accordingly, the provisions of DSM-5 are for application. Issues not specifically addressed in the remand are deferred pending receipt of the Social Security Administration records and updated VA medical records. Regarding the new and material issues, the Board acknowledges that the RO reopened the claims, but notes that it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been submitted. Barnett v. Brown, 8 Vet. App. 1 (1995). The Board also finds that more contemporaneous examinations are needed for rating the claims for increased ratings for gastritis with irritable bowel syndrome, allergic rhinitis and chronic pharyngitis, a low back disability, bilateral pes planus with plantar fasciitis, bilateral ankle tendinitis, and bilateral lower extremity residuals of intervertebral disc syndrome. Accordingly, the case is REMANDED for the following action: 1. Request all records pertaining to the Veteran from the Social Security Administration. 2. Request records from the VA Medical Center in Hampton, Virginia for the period from February 2015 to the present. 3. Request any in-patient clinical records pertaining to the Veteran from the Portsmouth Naval Hospital for the years 1992, 1994, and 1995. 4. Contact the Veteran and ask him to provide an authorization for release of any fee basis or private podiatry records. If a properly completed authorization is received, the records should be requested. If the Veteran does not submit the authorization as requested, efforts should be made to obtain any fee basis records through the VA Medical Center. 5. Schedule the Veteran for a VA skin examination by a dermatologist. The examiner must review the claims file and should note that review in the report. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any skin condition, to include tinea cruris or eczema. A complete rationale for any opinions expressed should be provided. The examiner is also requested to: (a) Indicate whether the eczema noted throughout the appeal period is at least as likely as not (50 percent or greater probability) related to active service or any incident of service or is proximately due to or aggravated (permanently worsened beyond the natural progress of the disorder) by service-connected tinea cruris. (b) Indicate whether the Veteran's treatment with topical corticosteroids constitutes systemic therapy. If systemic therapy is needed, state the length of systemic therapy in a 12 month period. (c) State the percentage of the skin and the percentage of exposed area affected by the service-connected skin disability. 6. Schedule the Veteran for a VA foot examination. The examiner must review the claims file and should note that review in the report. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of bilateral pes planus and plantar fasciitis. The examiner should provide an opinion as to whether there is no effective function of the feet remaining which would not be equally well served with amputation and a prosthesis. The examiner should make a finding whether or not there is extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, which is not improved by orthopedic shoes or appliances. A complete rationale for any opinions expressed should be provided. 7. Schedule the Veteran for a VA psychiatric examination to be conducted by a psychiatrist or psychologist, who has not previously treated or examined the appellant. The examiner must review the claims file and should note that review in the report. Although the examiners are obligated to review the claims file, their attention is directed to the service treatment and personnel records, and to the varied diagnoses of record to specifically include the November 1999 VA mental health intake assessment, the May 2004 VA psychology assessment noting invalid test results and unreliable self-report, the April 2010 VA psychiatric examination, and VA outpatient records showing diagnoses of chronic PTSD, mood disorder secondary to a past head injury, mood disorder due to general medical condition, and mood disorder due to a back injury. A complete rationale for any opinions expressed should be provided. The examiner should provide the following information: (a) Identify all psychiatric disorders pursuant to DSM-5. Explain the basis for the diagnosis, and the basis for agreeing or disagreeing with any other diagnoses of record. Specifically state whether or not each criterion for a diagnosis of PTSD is met, and whether diagnoses of mood disorder and adjustment disorder are appropriate. Discuss the self-reported history, symptoms, and history of symptoms. (b) If the Veteran is diagnosed with PTSD, state whether it is at least as likely as not (50 percent or greater probability) that PTSD is related to a fear of hostile military or terrorist activity during service during the Persian Gulf War. The examiners are advised that service records do not verify the Veteran served in the Southwest Asia theater of operations on or after August 2, 1990, and there is no evidence of combat service. (c) If the Veteran is diagnosed with any psychiatric disability other than PTSD, state whether each diagnosed psychiatric disability is at least as likely as not (50 percent or greater probability) related to active service or any incident of service. (d) If the Veteran is diagnosed with any psychiatric disability other than PTSD, state whether each diagnosed psychiatric disability is at least as likely as not (50 percent or greater probability) due to or the result of a service-connected disability or combination of service-connected disabilities. (e) If the Veteran is diagnosed with any psychiatric disability other than PTSD, state whether each diagnosed psychiatric disability is at least as likely as not (50 percent or greater probability) aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected disability or combination of service-connected disabilities. 8. Schedule the Veteran for a VA gastrointestinal examination to determine the current severity of gastritis with irritable bowel syndrome. The examiner must review the claims file and should note that review in the report. The examiner should describe the symptoms caused by gastritis and irritable bowel syndrome. The examiner should state whether gastritis results in large eroded or ulcerated areas. The examiner should state whether or not there are severe hemorrhages. The examiner should provide information regarding the effects of the gastritis and irritable bowel syndrome on the Veteran's daily functioning, including any occupational or social impairment. 9. Schedule the Veteran for a VA examination to determine the current severity of allergic rhinitis and chronic pharyngitis. The examiner must review the claims file and should note that review in the report. The examiner should describe the symptoms caused by allergic rhinitis and chronic pharyngitis. The examiner should state whether the rhinitis results in polyps or a greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. The examiner should provide information regarding the effects of the rhinitis and pharyngitis on the Veteran's daily functioning, including any occupational or social impairment. 10. Schedule the Veteran for a VA examination to determine the current severity of a low back disability, with neurological symptoms in the lower extremities. The examiner must review the claims file and should note that review in the report. The examiner should describe the symptoms caused by low back disability and lower extremity neurologic disabilities. The examiner should state the ranges of motion of the thoracolumbar spine in degrees, and should state whether there is any additional loss of function due to pain, excess motion, weakened motion, fatigability, incoordination, or on flare-up. The examiner should state whether or not any ankylosis is shown. The examiner should state whether there are periods of incapacitating episodes (periods of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician). If so, the examiner should state the duration of any incapacitating episodes in a 12 month period. The examiner should state which nerves are affected by the lower extremity disability and should describe the symptoms shown. The examiner should state whether there is any sensory or motor impairment, weakness, or pain. The examiner should opine as to whether the condition constitutes mild, moderate, moderately severe, or severe incomplete paralysis. The examiner should provide information regarding the effects of the low back disability and neurologic symptoms in the lower extremities on the Veteran's daily functioning, including any occupational or social impairment. 11. Schedule the Veteran for a VA examination to determine the current severity of bilateral ankle tendinitis. The examiner must review the claims file and should note that review in the report. The examiner should describe the symptoms caused by bilateral ankle tendinitis. The examiner should state the ranges of motion of each ankle in degrees, and should state whether there is any additional loss of function due to pain, excess motion, weakened motion, fatigability, incoordination, or on flare-up. The examiner should state whether or not any ankylosis of either ankle is shown. The examiner should provide information regarding the effects of the bilateral ankle tendinitis on the Veteran's daily functioning, including any occupational or social impairment. 12. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs