Citation Nr: 1639000 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 10-10 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a stomach disorder, to include gastritis and gastroesophageal reflux disease (GERD) (claimed as gastric distress). 2. Entitlement to service connection for a kidney disorder (claimed as abnormal kidney function). 3. Entitlement to an initial rating in excess of 10 percent for a dysthymic disorder. 4. Entitlement to an initial rating in excess of 10 percent lumbar spondylosis. 5. Entitlement to an initial rating in excess of 10 percent traumatic tension headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from February 1983 to March 31, 2007. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at Washington, D.C. in April 2016 and a transcript thereof is on file. In addition to the paper claim file there are paperless claims electronic files, Veteran's Benefits Management System (VBMS) and Virtual VA. All of these have been reviewed in this case. The issues of service connection for a stomach disorder, to include gastritis and GERD (claimed as gastric distress), and for a kidney disorder (claimed as abnormal kidney function), as well as initial ratings in excess of 10 percent for a dysthymic disorder and for lumbar spondylosis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The service-connected traumatic tension headaches are symptomatic of brain trauma and manifested by subjective complaints; there is no evidence of diagnosed multi-infarct dementia or characteristic prostrating attacks occurring an average of once a month. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for traumatic tension headaches have not been met. 38 U.S.C.A. §§ 1155; 5107(b) (West 2002); 38 C.F.R. §§4.3, 4.7, 4.124a, Diagnostic Codes 8045 and 8100 (effective prior to and from October 23, 2008), and Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA imposes on VA to provide notice of how to substantiate a claim and to assist in evidentiary development. VA's duty to notify was satisfied by a letter in April 2008 which addressed the Veteran's initial claims for service connection for all of the disabilities now on appeal. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the claim for an initial higher rating for headaches, this claim arises from disagreement with initial rating upon grants of service connection. However, once service connection is granted the claim is substantiated, and on appeal of the initial ratings assigned additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to the duty to assist, as to the claim for an initial rating in excess of 10 percent for traumatic headaches, the Veteran's service treatment records (STRs) are on file. Also, private clinical records are on file. The Veteran has been afforded a VA examination as to his headaches. The adequacy of the examination has not been challenged. The Board is entitled to assume the competence of an examiner and the adequacy of an examination unless either is challenged. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); and Hilkert v. West, 12 Vet. App. 145, 151 (1999). Here, the adequacy of the examination and the competence of the examiner have not been challenged. 38 C.F.R. § 3.103(c)(2) requires that one presiding at a hearing explain the issues and suggest the submission of relevant but overlooked evidence. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The hearing before the undersigned VLJ in Washington, D.C., focused on the elements needed for claim substantiation. Neither the Veteran nor his representative have alleged that there was any deficiency with respect to the hearing in this case, much less any violation of the duties set forth in 38 C.F.R. § 3.103(c)(2). See Dickens v. McDonald, 814 F.3d 1359 (Fed.Cir. 2016) (the Board is not required to discuss a potential violation of 38 C.F.R. § 3.103(c)(2), as discussed in Bryant v. Shinseki, 23 Vet. App. 488 (2010) unless an appellant raises such issue). All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the appeal is available but unobtained. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Background The STRs show that in February 1994 the Veteran sustained a mild concussion. The Veteran was afforded an official general medical examination in May 2008. As to headaches, the Veteran reported having had headaches since February 2003. They were described as being frontal or at the right temple. When the headaches occurred, he was able to go to work but required medication. He experienced headaches on the average of 1 time per day and they lasted 6 hours. He was not receiving any treatment for this condition. It was stated that he did not experience any functional impairment from this condition. As to his activities, it was reported that the Veteran was able to brush his teeth, take a shower, vacuum, drive a car, cook, climb stairs, dress self, take out the trash, walk, shop, perform gardening activities, and push a lawn mower. His usual occupation was a network engineer, which he had performed since 1984. He was currently employed in the same job. The relevant diagnosis was chronic headache, tension type, with historical subjective factors, and objective factors being headaches. The Veteran submitted private clinical records which included a January 2013 record from the South Riding Family Medicine which noted that he complained of headaches, bilaterally behind the ears, of low intensity being 2 on a 10 scale, and which occurred after not sleeping well. They usually went away without taking medications and there were no associated visual changes. At the Board hearing the Veteran testified that he worked as a computer engineer and systems analyst, and he was an information technology consultant. Page 6. As to the claim for an increased rating for traumatic tension headaches, the service representative stated that the Veteran was currently evaluated under Diagnostic Code 9304 which in the absence of multi-infarct dementia provided for no more than the current 10 percent rating. It was requested that this disability be rated analogously as headaches under Diagnostic Code 8100. Page 11. As to his headaches, the Veteran testified that his headaches were nearly continuous on a daily basis, although they fluctuated in severity. Page 12. The headaches lasted almost an entire day. They occurred at home and at work. For treatment he took over-the-counter medication, which provided some relief, and would sit down and rest. Page 13. He stated that it seemed that the headaches were stress induced, including at work. Page 14. Rating Principles Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. When two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates such criteria. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function are expected in all instances. 38 C.F.R. § 4.21. In increased rating claims, it is the present level of disability that is of primary concern. Fenderson v. West, 12 Vet. App. 119 (1999). If the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending, it is appropriate to apply staged ratings for each distinct time period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. Both the use of manifestations not resulting from service- connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. A disability not listed in the Schedule for Rating Disabilities may be rated analogously under a closely related disability in which the functions affected, anatomical localization (if applicable), and symptomatology are closely analogous (but organic disabilities will not be analogously rated to conditions of functional origin). 38 C.F.R. § 4.20. This is done by use of a "built-up" Diagnostic Code in which the first two digits are from that part of the rating schedule most closely identifying the part or bodily system involved, and the last two digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.27. The alleviating effects of medication may not be considered in schedular ratings unless explicitly provided in the applicable schedular rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (noting that such improvement is "relevant to the appellant's overall disability picture"). The service-connected traumatic tension headaches have been assigned an initial 10 percent disability rating under Diagnostic Code 8100 and under DC 8045. In this regard, 38 C.F.R. § 4.123, Diagnostic Code 8045 provides that residuals of traumatic brain injury (TBI)are rated on the basis of three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI); emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. However, any residual with a distinct diagnosis will be separately evaluated under another Diagnostic Code, such as migraine headaches, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100 migraine headaches warrant a 10percent rating when there are characteristic prostrating attacks averaging one in 2 months over the last several months; with less frequent attacks a noncompensable rating is assigned. A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average of once a month over the last several months; and a 50 percent rating is warranted when there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. VA regulations do not define "prostrating;" nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). By way of reference, the Board notes that according to MERRIAN WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "prostration" is defined as "complete physical or mental exhaustion." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." VA regulations also do not define "economic inadaptability." However, the Court has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Also, the Board notes that the Veteran's headaches are diagnostically classified as tension, and not migraine headaches. Thus, they have been rated analogously as migraine headaches. Because the rating is analogous, strict application of the criteria in Diagnostic Code 8100 is not appropriate. See 38 C.F.R. § 4.20; Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (faulting the Board's strict application of DC criteria to a condition being rated by analogy); NEW OXFORD AMERICAN DICTIONARY 55 (3d ed. 2010) (defining "analogous" as "comparable in certain respects"); cf. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (holding that a veteran with post-traumatic stress disorder may qualify for a given schedular evaluation for a mental disorder under 38 C.F.R. § 4.130 by "demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration" (emphasis added)). Indeed, to assign an analogous evaluation, § 4.20 requires only "closely analogous"-and not identical-functional impairment, anatomic localization, and symptoms between an unlisted and a listed disability. The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 Gilbert v. Derwinski 1 Vet. App. 49 (1990). Analysis At the Board hearing it was requested that the Veteran's headaches be evaluated under Diagnostic Code 8100, rather than under 38 C.F.R. § 4.130, Diagnostic Code 9304, dementia due to head trauma. In this regard, Diagnostic Code 9304 provides for rating dementia due to trauma under the General Rating Formula for Mental Disorders. The Veteran is already assigned a separate 10 percent rating for his service-connected dysthymic disorder. Thus, an additional rating under that formula would constitute pyramiding. At the hearing it was indicated that it was inappropriate to rate the Veteran's headaches under Diagnostic Code 9304 because it does not provide for a higher rating unless there is evidence of multi-infarct dementia. However, the General Rating Formula for Mental Disorders does not contain any such provision. Rather, that limitation is found in 38 C.F.R. § 4.124a, Diagnostic Code 8046 for rating cerebral arteriosclerosis which states that purely subjective complaint, e.g., headaches, recognized as symptomatic of a properly diagnosed cerebral arteriosclerosis will be rated 10 percent and not higher under Diagnostic Code 9305 (Vascular dementia) and this 10 percent rating is not to be combined with any other rating for a disability due to cerebral or generalized arteriosclerosis. Ratings in excess of 10 percent for cerebral arteriosclerosis under Diagnostic Code 9305 are not assignable in the absence of a diagnosis of multi-infarct dementia with cerebral arteriosclerosis. In this case, there is no evidence of a diagnosis of multi-infarct dementia. Rather, as the Veteran's service representative suggested at the hearing, the evaluation is best made, and has been made, under Diagnostic Code 8100 for migraine headaches. For regulations in effect prior to October 23, 2008, under Diagnostic Code 8045 subjective complaints such as headaches, recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. The 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. When the rating criteria in effect prior to October 23, 2008 is applied to the medical evidence discussed above, a 10 percent rating, and no higher, is appropriate under Codes 8045 and 9304. The Veteran's service-connected headaches are clearly established as a residual of brain trauma in service. A 10 percent rating is the maximum allowed under the cited codes in the absence of evidence of multi-infarct dementia associated with brain trauma. There is no medical evidence of such dementia of record. In sum, a rating higher than 10 percent for the service-connected muscle contraction headaches under the applicable criteria is not warranted. The rating criteria in 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine headaches provides for a rating of 30 percent when there are characteristic prostrating attacks occurring on an average once a month over the last several months. The criteria were not amended in October 2008, as were Diagnostic Codes 8045 and 9304. Neither the medical evidence nor the Veteran's testimony indicate that he experienced any headaches that were characteristically prostrating. Rather, the evidence shows that the headaches may have slowed him down or at times impaired his ability to work but that the headaches are not incapacitating inasmuch as there is no evidence that he missed any work due to his headaches, which does not meet the criteria for a higher rating under Code 8100. As noted, the applicable criteria of Code 8045 for evaluating traumatic brain injuries were amended during the pendency of the appeal. See 73 Fed. Reg. 54693 (Sept. 23, 2008). The amended criteria apply to all claims received by VA on and after October 23, 2008, although the Veteran was permitted to request that his residuals of a traumatic brain injury be rated under the revised criteria. His initial claim for service connection, from which this appeal stems, was received in April 2008. Traumatic brain disease was previously rated under Diagnostic 8045, which provides that purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8911). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). The protocol for TBIs were revised during the pendency of this appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). For claims received by VA prior to that effective date, a veteran is to be rated under the old criteria for any periods prior to October 23, 2008, but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). The revised Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. A lengthy discussion of the amended code is provided below. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, is separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Emotional/behavioral dysfunction is evaluated under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. Physical (including neurological) dysfunction is evaluated based on, in part, motor and sensory dysfunction, including pain, impairment of the special senses, e.g., visual and hearing dysfunction, if any. Here, the only residual of the inservice head trauma is the Veteran's headaches, and a separate rating is assigned for service-connected psychiatric disability. Together, these encompass all of the cognitive impairment, subjective symptoms, emotional and behavioral dysfunction as well as physical dysfunction which may stem from the inservice head injury, and there is no evidence to the contrary. After a review of the record and consideration given for the changes in the TBI protocol on October 23, 2008, the Board finds that the preponderance of the evidence is against a finding that the Veteran's symptomatology meets the criteria for an evaluation in excess of 10 percent. Under the new TBI protocol, the symptoms manifested by the Veteran's disability warrant no more than a 10 percent disability rating. See 38 C.F.R. §4.124a, Diagnostic Code 8045 (effective October 23, 2008). Under revised version of Diagnostic Code 8045, an evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and emotional and behavioral disabilities found on examination that are determined to be residuals of a TBI are evaluated separately. The evidence of record does not show that the Veteran's TBI symptomatology warrants more than a 10 percent disability rating under the new version of Diagnostic Code 8045, in effect since October 23, 2008, on the basis of a separate rating for headaches. As noted, the Veteran already receives a separate 10 percent rating for his headaches, in addition to a separate 10 percent rating for service connection dysthymic disorder. The Board concludes that the severity of the Veteran's traumatic tension headaches has been fully contemplated by the 10 percent rating since October 23, 2008 (as well as prior thereto, as discussed above). As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). In comparing the disability level and symptomatology to the Rating Schedule, the degrees of disability with regard to the traumatic tension headaches are contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate, and no referral for an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). Lastly, because the Veteran testified that he is gainfully employed there is no implicit claim for a total disability rating based on individual unemployability due to service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for entitlement to TDIU. ORDER A rating higher than 10 percent for traumatic tension headaches is denied. REMAND Because examinations are needed as to the claims being remanded, the relevant evidence as to each, as set forth below, may be of some benefit to an examiner. Stomach Disorder, Including Gastritis and GERD (claimed as gastric distress) The STRs include an undated STR reflects that in conjunction with psychological counseling because of increased stress, that the Veteran had a history which included stomach problems of gas pains and acid reflux. In March 1994 an abdominal ultrasound revealed the Veteran's liver, pancreas, gallbladder, spleen, and both kidneys were normal. In May 1995 the Veteran complained of having had lower abdominal pain for the last 2 days. The assessment was probable acute gastroenteritis. In September 1997 he complained of having had diarrhea for 5 days. After an examination the diagnosis was mild viral gastroenteritis. In February 2003 it was noted that he had recurrent stomach pains. In April 2003 his medical history included reflux. In February 2005 it was noted that he reported having gastric pain every 6 weeks, which started with constipation and after taking laxatives became diarrhea. In April 2006 his complaints included stomach discomfort. The Veteran was afforded an official general medical examination in May 2008. This respect to a stomach condition, the Veteran reported having had abdominal cramping since February 2003 and that the condition was not due to injury or trauma and did not affect general body health or his body weight. He had stomach pain located in his abdomen. The pain occurred frequently and was not associated with anything in particular. The stomach pain was crampy. Mylanta provided partial relief. There was no nausea or vomiting. He had never vomited blood or passed any black tarry stools. He had never been hospitalized for this nor had any surgery for it. He stated that his stomach condition did not cause incapacitation and he did not experience any functional impairment from this condition. On physical examination there were no striae on the abdominal wall, no distension of superficial veins, no ostomy, no tenderness to palpation, no splenomegaly, no ascites, no liver enlargement, and no aortic aneurysm. The relevant diagnosis was that there was no diagnosis of a stomach condition because there was no pathology to render a diagnosis, i.e., there was no anemia and no findings of malnutrition. A report of a November 2011 esophagogastroduodenoscopy at the Inova Fair Oaks Hospital revealed esophagitis and sliding hiatal hernia at the gastroesophageal junction. A November 2011 biopsy report of the Veteran's distal esophagus indicated that there was reactive squamous mucosa consistent with gastroesophageal reflux, and findings consistent with chronic inflammation. A February 2012 report from the South Riding Family Medicine noted that the Veteran had a history of acid reflux, although an endoscopy last year had been normal. The assessments included a back ache and esophageal reflux. A January 2013 record from that facility noted that he was taking Protonix for GERD. At the Board hearing the Veteran's service representative stated that the Veteran was treated during service for gastrointestinal (GI) problems. He testified that he was still having GI problems for which he was being treated by a gastroenterologist that he had seen several times over the past 2 to 3 years. Page 3. He had been prescribed medications for acid reflux. The service representative indicated that the Veteran was seen and treated during service in 1997 for GI complaints. He was having problems with constipation and with diarrhea. Page 4. He testified that his current physician had rendered a diagnosis of gastritis. The service representative indicated that at least some of the Veteran's GI problems were stress induced. Page 15. Thus, it was now being claimed that the Veteran's GI disorder was secondary to his service-connected psychiatric disorder. Page 16. Following the April 2016 Board hearing the Veteran again submitted additional evidence, without a waiver of initial RO consideration. This included a May 2016 letter from Dr. Irving Hwang stating that he had treated the Veteran since 2011. The Veteran had had chronic gastric distress issues and had taken prescription Pantoprazole for it. Dr. Hwang also stated that earlier that month the Veteran had provided the physician with copies of pertinent military medical records from 2005 onwards, during his time on active duty. The Veteran had asked the physician to confirm that his current diagnosis relative to his gastric represented a continuation of his condition while on active duty. It was the professional opinion of Dr. Hwang that the Veteran's "current gastric [] condition is directly related to the issues he was treated for while on active duty." Kidney Disorder (claimed as abnormal kidney function) The STRs include a March 1994 an abdominal ultrasound revealed the Veteran's liver, pancreas, gallbladder, spleen, and both kidneys were normal. In May 2006 a clinical record noted a history of "renal function Nonspecific Abnormal Findings." The Veteran was afforded an official general medical examination in May 2008. As to the claimed kidney disorder, the Veteran reported an elevation of his blood work in May 2006. During the day he urinated 5 times, at intervals of 3 hours, and during the night he urinates 1 times, at an interval of 5 hours. He did not have problems starting urination or any urinary incontinence. Regarding the urinary system problem, he did not have any symptoms of weakness, fatigue, loss of appetite, weight loss, limitation of exertion, recurrent urinary tract infections, renal colic, bladder stones with pain, or frequent infections. He did not require any procedures for his genitourinary problem. There was no hospitalization during the last 12 months and he was not on regular dialysis. It was reported that he did not experience any functional impairment from this condition. The relevant diagnosis was that there was no diagnosis of a kidney condition because there is no pathology to render a diagnosis. February 2014 and March 2015 laboratory reports indicated that the Veteran had "[e]levated kidney function test." A May 2016 letter from Dr. Irving Hwang stated that he had treated the Veteran since 2011. Blood and urine tests had indicated some impairment of the Veteran's kidney function. The latter series of tests, conducted in May 2016, continued to indicate some impairment of kidney function. The physician was to refer the Veteran to a nephrologist for further diagnosis. Dr. Hwang also stated that earlier that month the Veteran had provided the physician with copies of pertinent military medical records from 2005 onwards, during his time on active duty. The Veteran had asked the physician to confirm that his current diagnosis relative to his kidney issues represented a continuation of his condition while on active duty. It was the professional opinion of Dr. Hwang that the Veteran's "current []kidney condition is directly related to the issues he was treated for while on active duty." Dysthymic Disorder On official psychiatric examination in April 2008 it was reported that since service the Veteran had a higher paying civilian job, but his wife was still unhappy with his salary. He had been working as a defense contractor for 6 months. He complained of sleeping difficulty. His social functioning has been restricted in that he had no friends and did not go out to dinner or movies. On mental status examination he had some obsessional rituals but they did not interfere with his daily life. His memory appeared to be normal. He could do 7 digits forward without any problems and serial sevens without difficulty. His Global Assessment of Functioning (GAF) score was 65. He had no difficulty in performing activities of daily living. He was able to establish and maintain effective work and social relationships. His psychiatric symptoms were mild or transient but could interfere with social and occupational functioning. He had no difficulty understanding simple or complex commands and currently he was no immediate threat to himself or others. The Veteran did not attend a VA examination scheduled in March 2015 for the purpose of evaluating his service-connected psychiatric disorder, headaches, and low back disorder. After the Veteran's failure to attend the examinations scheduled in March 2015 was noted in the May 2015 supplemental statement of the case (SSOC) the Veteran reported in June 2016 that a recorded message on his home phone was all the notice he had received other than a phone call from QTC services only two day prior to the scheduled examinations at which time he had stated he needed more time and wished to have the examinations rescheduled. He had also asked for information as to records he could submit in support of his appeal. QTC had not provided such information. He was later contacted only 3 days before a rescheduled appointment and again had requested information regarding submission of evidence. The Veteran did not believe that failure to attend the re-scheduled examinations should not be considered a failure to attend because he was not informed of the scope of the examinations or how to submit additional evidence in support of his claims. At the Board hearing the Veteran testified that he had difficulty relating to co-workers and clients for several years now. This caused him to be frustrated. Also, he sometimes would have language problems, and would "forget proper verbiage." Page 7. In the last year or two years he had had difficulty remembering names and correct words to use. This caused him to be depressed. He would awaken in the middle of the night and have difficulty returning to sleep. Page 8. It was noted at the Board hearing that the Veteran had not attended a recently scheduled VA examination to evaluate his psychiatric disorder. Page 8. The Veteran explained that the two attempts to schedule him for such examinations had only given him no more than two days advanced notice and with such short notice he was unable to make arrangements to be absent from work. Page 9. He desired to attend an up-to-date VA psychiatric rating examination. Page 10. However, he needed at least 5 days advanced notice and preferably a week's prior notice. Page 11. The service representative requested that he be given an up-to-date examination to evaluate the severity of the service-connected psychiatric disorder. Page 22. Lumbar Spondylosis The Veteran was afforded an official general medical examination in May 2008 at which time he complained of low back pain which traveled to down his legs, and which he as 2 on a scale of 10. It was stated that he did not experience any functional impairment from this condition. On physical examination his posture and gait were within normal limits, and he did not require any assistive device for ambulation. On examination of the Veteran's thoracolumbar spine there was no evidence of radiating pain on movement. Muscle spasm was absent. No tenderness was noted. There was negative straight leg raising test on the right. There was positive straight leg raising test on the left. There was no ankylosis of the lumbar spine. Flexion was to 90 degrees without pain. Extension was to 30 degrees, with pain at that level. Right and left lateral flexion were to 30 degrees without pain. Left rotation was to 30 degrees and painless but right rotation was also to 30 degrees but with pain at that level. The joint function of the spine was additionally limited by the following after repetitive use: pain and pain had the major functional impact. It was not additionally limited by the following after repetitive use: fatigue, weakness, lack of endurance and incoordination. The above additionally limit the joint function by 10 degrees. The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curvatures of the spine. There were no signs of intervertebral disc syndrome (IVDS) with chronic and permanent nerve root involvement. Coordination was within normal limits. Neurological examination of the lower extremities revealed that motor function was within normal limits. Sensory function was within normal limits. The right lower extremity reflexes reveal knee jerk of 2+ and ankle jerk 2+. The left lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. X-rays of the Veteran's cervical, thoracic, and lumbar spinal segments were within normal limits. The relevant diagnosis was a lumbar strain, with historical subjective factors, and objective factors as described on examination. More recently, the Veteran submitted additional evidence with a waiver of initial RO consideration. This included a report of a July 2012 spinal X-ray which revealed 11 rib pairs and a transitional lumbosacral anatomy with 5 lumbar-appearing vertebral bodies and partial lumbarization of S1 which was greater on the right side than the left side. There was mild IVDS space loss at L4-5 and L5-S1 levels. There was mild to moderate facet arthopathy at the lower lumbar spine. At the Board hearing as to the claim for an initial rating in excess of 10 percent for the Veteran's service-connected low back disorder, it was asserted that he now had radicular pain down his left leg. Page 16. He could no longer mow his lawn and had hired a service to do this. To pick something up from the floor he had to basically squat down on his hands and knees. Page 17. His current work duties required extended sitting and, so, at least once every hour he had to get up to relieve back pain. He could only stand for 30 to 45 minutes at a time before having to sit down. Page 18. He had difficulty traversing stairs. Page 20. Walking for extended periods of time tended to aggravate his left-sided sciatica. Page 22. The service representative requested that he be given an up-to-date examination to evaluate the severity of the service-connected low back disorder. Page 22. In view of the foregoing additional evidence as to the claim for service connection for a kidney disorder is necessary to obtain any new records from any nephrologist to whom the Veteran may have been referred by Dr. Hwang. Also, VA examinations are needed as to the claims for service connection for an opinion as to whether the claim stomach and kidney disorders, if any, are related to the Veteran's military service; as well as to whether any stomach disorder is related in any way to the service-connected dysthymic disorder and whether the claimed kidney disorder is related in any way to the Veteran's service-connected hypertension, which is assigned a noncompensable disability rating. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he either submit any records of a nephrologist (to whom he may have been referred by Dr. Hwang) or execute and return any needed release or authorization form(s) to facilitate the Appeals Management Center (AMC) in obtaining such records. The Veteran should be, and hereby is, informed that he may submit any additional evidence not already of record in support of his claims. 2. After an appropriate period of time has elapsed, scheduled the Veteran for a gastrointestinal examination for the purpose of obtaining an opinion as to whether he now has any disorder or disease of the stomach and, if so, whether it is as likely as not related to the Veteran's military service; as well as whether it is as likely as not that any stomach disorder is related in any way, i.e., either causally or by aggravation, to the service-connected dysthymic disorder. The appropriate steps should be taken to ensure that the examiner has access to the Veteran's complete VA medical records. 3. After an appropriate period of time has elapsed, or if the records of any nephrologist referred to above are obtained, scheduled the Veteran for an appropriate examination for the purpose of obtaining an opinion as to whether he now has any disorder or disease of the kidney and, if so, whether it is as likely as not related to the Veteran's military service; as well as whether it is as likely as not that any kidney disorder or disease is related in any way, i.e., either causally or by aggravation, to the service-connected hypertension. The appropriate steps should be taken to ensure that the examiner has access to the Veteran's complete VA medical records. 4. Schedule the Veteran for an examination for the purpose of evaluating the severity of his service-connected dysthymic disorder. Any and all indicated history, evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The Veteran's electronic records should be made available to the examiner for review, and the examination report should reflect that such review was accomplished. 5. Schedule the Veteran for an examination for the purpose of evaluating the severity of his service-connected lumbar spondylosis. In light of the complaints of radicular pain down the Veteran's left leg, the report of the examination should include all relevant orthopedic as well as neurologic findings, particularly any neurologic findings as to his left leg. Any and all indicated history, evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The Veteran's electronic records should be made available to the examiner for review, and the examination report should reflect that such review was accomplished. 6. Then, the AMC should readjudicate the claim on the merits. If the benefit sought is not granted, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs