Citation Nr: 1627509 Decision Date: 07/11/16 Archive Date: 07/22/16 DOCKET NO. 13-18 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2014) for additional disability incurred due to VA dental treatment from February 2004 to March 2005. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hemorrhoids. 3. Entitlement to an increased rating for chronic prostatitis, rated as 10 percent disabling prior to July 2, 2015 4. Entitlement to an increased rating for chronic prostatitis, rated as 20 percent disabling beginning July 2, 2015. 5. Entitlement to service connection for a right shoulder disorder. 6. Entitlement to service connection for a low back disorder. 7. Entitlement to service connection for a right lower extremity disorder, to include as secondary to a low back disorder. 8. Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected disabilities. (The claims for whether the denial of compensation under the provisions of 38 U.S.C.A. § 1151 in a February 2012 rating decision was the result of clear and unmistakable error and whether the denial of service connection for hemorrhoids in an August 1967 rating decision was the result of clear and unmistakable error are addressed in a separate decision of the Board.) REPRESENTATION Appellant represented by: James McElfresh, Agent WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2012 and September 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran testified before the undersigned Veterans Law Judge at the RO in May 2014. He also testified before a second Veterans Law Judge at the RO in May 2016. Transcripts of both hearings are of record and reflect that the Veteran addressed the claim for whether a February 2012 rating decision contains clear and unmistakable error (CUE) in the denial of compensation under 38 U.S.C.A. § 1151 at both hearings. As noted above, this claim is addressed in a separate decision signed by the Veterans Law Judge who conducted the May 2016 hearing. Typically, when an appellant has a personal hearing before two separate Veterans Law Judges during the appeal and the hearings cover one or more common issues, a third Veterans Law Judge is assigned to a panel after the second Board hearing has been held prior to appellate review. The Veteran must then be provided the opportunity for an additional hearing before the third Veterans Law Judge. See Arneson v. Shinseki, 24 Vet. App. 379 (2011) (interpreting 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision). In this case, however, the Board finds that there is no prejudice to the Veteran from the single-judge disposition of his claim. The Veteran has not alleged a valid CUE claim as the February 2012 rating decision is not final with respect to the denial of entitlement to 38 U.S.C.A. § 1151 benefits for an additional dental disability due to VA treatment. As the February 2012 adjudication is not a final decision, it is not subject to a CUE determination and this issue is not properly before the Board. See Best v. Brown, 10 Vet. App. 322, 325 (1997) (finding that an appellant cannot raise CUE with respect to a rating decision that is not final); see also 38 C.F.R. § 3.105(a) (providing for the revision of "[p]revious [RO] determinations which are final and binding" on the basis of CUE). The claim for entitlement to service connection for a right lower extremity disability was previously characterized by the Board as separate claims for service connection for a right lower leg disability, to include sciatica, and a right foot disability. Based on the Veteran's testimony and statements dated throughout the claims period, it is clear that the Veteran is claiming service connection for neurological impairment of the right lower extremity associated with a low back disorder. The Board has therefore recharacterized the issue on appeal as entitlement to service connection for a right lower extremity disability to clarify the Veteran's contentions. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for an additional disability incurred due to VA dental treatment, entitlement to an increased rating for chronic prostatitis, and entitlement to service connection for right shoulder, low back, right lower extremity, and a psychiatric disorder are addressed in the Remand portion of the decision below. FINDING OF FACT In May 2016, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the claim to reopen service connection for hemorrhoids. CONCLUSION OF LAW The criteria for withdrawal of the appeal for whether new and material evidence has been received to reopen a claim for entitlement to service connection for hemorrhoids are met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 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. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In a May 2016 correspondence, the Veteran's representative withdrew the appeal with respect to the claim for whether new and material evidence has been received to reopen a claim for entitlement to service connection for hemorrhoids. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this claim and it is dismissed. ORDER The appeal for whether new and material evidence has been received to reopen a claim for entitlement to service connection for hemorrhoids is dismissed. REMAND The Board finds that additional development is necessary with respect to the remaining claims on appeal. Initially, the Veteran has reported receiving private medical treatment for the prostate and orthopedic disorders on appeal beginning soon after his discharge from active duty service. In a December 2015 statement, the Veteran notified VA that he visited a private physician, identified as Dr. H., in the 1970s to treat his shoulder and back pain, as well as several private chiropractors. The Veteran also indicated that he utilized private insurance and treatment until approximately 1999 and VA Medical Center (VAMC) records document multiple references to private health care providers. During a September 2001 initial primary care visit at the VAMC, the Veteran reported a history of old back injuries with outside care and litigation. In December 2001 and December 2004, he stated that he regularly saw a private chiropractor and in September 2010, his VA primary care physician noted that the Veteran also saw an outside doctor for unspecified treatment. The Veteran also testified during the May 2014 hearing before the Board that he received medication for chronic prostatitis from a private physician. Upon remand, the Veteran should be contacted and asked to identify all private treatment related to the service-connected chronic prostatitis and claimed right shoulder, low back, and right lower extremity disabilities. He should also be asked to provide medical releases to allow VA to obtain records from these providers. Additionally, a VA examination is required with respect to the Veteran's claim for an increased rating for chronic prostatitis. The record contains some evidence the disability has worsened; for example, during the July 2015 VA examination, the Veteran reported that he experienced nighttime awakening to void approximately three to four times and required continuous treatment with medication. In May 2016, during a urology consultation, the Veteran reported that he experienced urinary frequency that resulted in nocturia approximately four to five times a night. The increase in nighttime voiding also indicates an increase in the severity of the Veteran's service-connected prostatitis. However, the Veteran is diagnosed with nonservice-connected benign prostatic hypertrophy and the record does not contain specific medical evidence stating whether the Veteran's voiding symptoms are due to service-connected prostatitis, nonservice-connected benign prostate hypertrophy, or whether the two conditions are related to each other. A VA examination and medical opinion are therefore needed to determine the manifestations and severity of the service-connected prostate disability. Another VA medical opinion is necessary with respect to the claim for entitlement to service connection for a low back disability. Although the record contains a medical opinion from a July 2015 VA examiner, this opinion is not adequate. The examiner concluded that the Veteran's low back condition clearly and unmistakably existed prior to service based solely on the Veteran's reports of severe back pain on the September 1962 pre-induction examination. A veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2014). VA law is explicit that a history of pre-service disability recorded at the time of the entrance examination does not constitute a notation of such disability. 38 C.F.R. § 3.304(b)(1) (2015). Thus, the Veteran's lay reports of severe back pain at the time of the September 1962 pre-induction examination are not legally adequate to establish a pre-existing back condition, especially as his spine was found to be normal upon the accompanying physical examination. The record contains no other evidence indicating that the Veteran had a chronic back condition at the time of his enlistment into active service. Although he submitted some private medical records dated in July and August 1962 prior to enlistment, these records pertain to treatment of a right shoulder disability and only tangentially reference the Veteran's back. A new VA medical opinion is therefore necessary addressing whether the Veteran's current low back disability, and an associated right lower extremity disability, is related to any incident of active duty, to include the Veteran's service as a bass drum player and reported fall in December 1964. A dental examination and medical opinion is also required with respect to the claim for entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability incurred due to VA dental treatment from February 2004 to March 2005. The Veteran was referred to the West Los Angeles VAMC in February 2004 to receive dental clearance prior to starting radiation treatment for squamous cell carcinoma of the neck. Upon dental examination on February 10, 2004, moderate bone resorption, six missing teeth, partial tooth replacements status post bone graft, tooth caries, moderate periodontitis, and partial edentulism were diagnosed. The examining dentist recommended the extraction of 15 teeth and a four quadrant alveoplasty. On February 11, 2004, a scaling and root planning procedure was performed, and the next day, February 12, 2004, an extraction of 15 erupted teeth was performed along with a four quadrant alveoplasty. The Veteran was notified that the teeth required extraction before he could begin radiation therapy and the dental surgery note indicates that the procedure was performed without complication. The Veteran returned to the West Los Angeles VAMC for several follow-up examinations after the February 2004 dental surgery. On February 18, 2004, he was characterized as having normal wound healing, and on March 15, 2004, he was seen with complaints of two hard areas of bone in the lower left side of his mouth. The examination showed two 1-millimeter, hard, immobile, non-tender bumps. Another alveoplasty was performed to obtain a more favorable ridge for the Veteran's future dentures. On March 22, 2004, the Veteran was seen for facial swelling and abnormal healing, but he had no complaints during follow-up appointments later in March and in May 2004. The Veteran's dental care was transferred back to the Loma Linda VAMC and on September 3, 2004, he again complained of a sharp bone in the left internal oblique ride area. No intervention was needed and impressions were taken for upper and lower removable partial dentures to replace his missing teeth. The Veteran was issued dentures and he was seen occasionally during the next few years for adjustments. On July 9, 2007, his dentist noted the presence of partially edentulous areas in the maxillary and mandibular arches and bony projections on the mandible. In April 2008, the Veteran was referred back to the West Los Angeles VAMC for the issuance of new partial dentures. He continued to receive various follow-up appointments and adjustments, and on January 9, 2009, after expressing concern about a delay in his cancer diagnosis and subsequent dental treatment, the Veteran was told that his pre-existing dental problems necessitated the extraction of his teeth in February 2004. The Veteran was not seen for additional dental treatment until November 16, 2009 when a 1-centimeter sized, firm bone mass was observed along with malaligned teeth. After another lapse in treatment, the Veteran reported to the Las Vegas VAMC dental clinic on November 15, 2011 with several broken teeth. He reported that he no longer wore his upper dentures and after numerous appointments to ensure proper fit, he was provided new partial upper and lower dentures at that facility. The Veteran contends that his February 2004 tooth extractions and alveoplasties were improperly performed by an unqualified dental intern and resulted in permanent neurological deficits and bone loss. He also contends that due to VA negligence, he incurred permanent damage and misalignment of his jaw and mandible. In response to the claim, a medical opinion was obtained from a VA periodontist in January 2012. After review of the claims file, the VA periodontist found that the Veteran received appropriate and competent care at all the treating VA facilities and his claimed disability of partial edentulism was not due to VA fault. The Board finds that this opinion is not adequate as it does not address whether all the additional dental disabilities claimed by the Veteran are present and does not include an adequate basis to support the proffered medical opinion. A new medical opinion is therefore required by the duty to assist. As a final matter, the Board finds that the claim for entitlement to service connection for a psychiatric disorder is inextricably intertwined with the remanded claims for compensation under 38 U.S.C.A. § 1151 and the Veteran's other service connection claims. The Veteran contends that a psychiatric disorder, such as depression, was incurred secondary to the pain and functional effects of his claimed disabilities. As the claim for service connection for a psychiatric disorder cannot be adjudicated prior to the other claims on appeal, it is also remanded to allow for completion of the development directed below. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources, to include records from the private physician identified as Dr. H., the Veteran's private chiropractors, and the private physician who has treated him as recently as September 2010. Regardless of the Veteran's response, the RO must obtain copies of the Veteran's complete treatment records from the Loma Linda VAMC, dated from May 2016 to the present, and associate the records with the claims file. The RO must also obtain a copy of the fee-basis nerve conduction study performed by Clinical Neurology Specialists and scanned into the VAMC's Vista Imaging system on November 1, 2012. A copy of the Veteran's original consent form from the dental surgery at the West Los Angeles VAMC on February 12, 2004 must also be obtained. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded a VA examination to determine the current severity of his service-connected chronic prostatitis. The electronic claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. After physically examining the Veteran, reviewing the complete claims file, and with consideration of the Veteran's statements, the examiner must determine: a) Whether the Veteran's genitourinary dysfunction, to include symptoms of urinary frequency, incontinence, nocturia, obstructed voiding, and voiding dysfunction, are manifestations of his service-connected chronic prostatitis, nonservice-connected benign prostate hypertrophy, or both, and, if both, the examiner must, to the extent possible, differentiate the symptoms and functional impairment associated with the Veteran's chronic prostatitis and benign prostate hypertrophy; and b) Whether the Veteran's benign prostate hypertrophy is due to or aggravated by the service-connected chronic prostatitis. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The Veteran must be afforded a VA examination to determine whether a chronic low back disability is related to his military service. The electronic claims file must be made available to and reviewed by the examiner. After physically examining the Veteran, reviewing the complete claims file, and with consideration of the Veteran's statements, the examiner must determine whether any currently or previously low back disorder and right lower extremity disorder is related to the Veteran's active duty service, to include his duties as a bass drum player in the US Army Band and a reported fall and back injury on December 7, 1964. The examiner must also consider and address the treatise evidence submitted by the Veteran discussing how musicians are likely to experience repetitive stress and strain injuries. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The Veteran must be afforded a VA examination to determine if he has any additional dental disability as a result of the VA dental treatment from February 2004 to March 2005. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The electronic claims file must be made available to the examiner, to include records of dental treatment from the West Los Angeles, Loma Linda, and Las Vegas VAMC facilities. For any identified dental disability, including the facial numbness, jaw, and mandible disorders claimed by the Veteran, the examiner must provide an opinion addressing whether such is an additional disability due to VA dental treatment from February 2004 to March 2005. If any additional dental disability is attributed to VA treatment, the examiner should determine whether the additional disability is proximately caused by: (1) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in providing dental treatment for the Veteran from February 2004 to March 2005; and if so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider OR did VA furnish surgical treatment on February 12, 2004 without the Veteran's informed consent? OR (2) Was the additional disability proximately caused by an event not reasonably foreseeable? The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. The Veteran must be notified that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. The medical reports must be reviewed to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 7. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be re-adjudicated. If a benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs