Citation Nr: 1751755 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 08-25 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a stomach disorder. 2. Entitlement to service connection for left hand arthritis. 3. Entitlement to an initial rating in excess of 30 percent for service-connected post traumatic stress disorder (PTSD). 4. Entitlement to an initial rating in excess of 30 percent for service-connected post traumatic headaches from June 2, 2006, to February 28, 2010, and a rating in excess of 10 percent from March 1, 2010. 5. Entitlement to an initial rating in excess of 10 percent for service-connected traumatic arthritis of the lumbar spine. 6. Entitlement to an initial compensable rating for service-connected left hand fracture residuals. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 2002 to March 2003, and from December 2003 and March 2005. This case was previously before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board in June 2012 to clarify the Veteran's wishes with regard to attending a hearing before a Veterans Law Judge. In August 2016, the Veteran withdrew his request for such a hearing, and requested that his appeal be forwarded to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND First with respect to the claims for service connection, the service treatment reports (STRs) reflect treatment for gastrointestinal complaints, to include in January 2003 and January 2004. Treatment for a hiatal hernia and gastritis during a period of reserve duty in July 2006 is also documented. VA clinical reports document H. (Helicobacter) pylori by way of an October 2005 pathology report and the triple therapy protocol for this condition was initiated at that time. A February 2007 examination reflects the Veteran reporting a history of epigastric pain that began in service which he said led to H. pylori. He also reported having two endoscopies performed in the past that did not reveal any peptic ulcers. At the time of the examination, the Veteran reported epigastric symptoms triggered by any tomato-based foods or Mexican spices. The assessment following the examination was history of H. pylori with symptoms suggestive of acid reflux. [While the examiner noted that efforts to obtain the results from the reported endoscopies had not been successful, review of the record confirms an October 2005 endoscopy with normal results, aside from nodular gastritis in the antrum.] Given the in-service and post service findings set forth above, the undersigned finds that a VA examination addressing this claim for service connection for a stomach disability that includes an opinion as to whether the Veteran has a stomach disability that is etiologically to service is necessary to fulfill the duty to assist the Veteran. 38 U.S.C. § 5103A(d) (2012); C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Turning to the claim for service connection for left hand arthritis, the STRs reflect a smashing injury to the left hand by a hammer, and service connection has been established for left hand fracture residuals, rated under Diagnostic Code 5230 (limitation of motion of the ring or little finger) as a result of this injury. Although arthritis was not shown in the left hand on a February 2007 VA x-ray, service connection may be granted for a disability that manifests itself at any point during the appeal period. It is possible that arthritis has developed in the left hand subsequent to the February 2007 VA x-ray. Therefore, the Board finds that a VA examination that includes a left hand X-ray and opinion as to whether the Veteran has arthritis of the left hand that is the result of service is also necessary to fulfill the duty to assist the Veteran. Id.; McClain v. Nicholson, 21 Vet. App. 319, 321(2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) With respect to the increased rating claims on appeal, the Veteran was last afforded a VA examination to assess the severity of his service connected left hand disability in February 2007, PTSD in March 2010, headaches in April 2010, and traumatic arthritis of the lumbar spine lumbar in May 2010. Given the time that has elapsed since the Veteran was last afforded VA examinations addressing the service connected disabilities at issue, and his descriptions of service connected symptomatology in April 2012 suggesting worsening disability since these examinations were conducted, the Board finds that the Veteran must be afforded VA examinations to assess the current severity of these disabilities in order to fulfill the duty to assist. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine whether he has a current stomach disability that is etiologically related to service. The VA electronic record should be provided to the examiner for review, and the examiner should respond to the following: Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has a current stomach disability that had its onset in, or is otherwise related to his periods of active service? A complete rationale for the opinion should be provided that should reflect specific consideration of the Veteran's assertions. 2. Arrange for VA examinations to determine the nature, severity, and extent of the current pathology associated with the service connected PTSD, headaches, lumbar spine, and left hand disabilities. The electronic record should be made available to each examiner. The examination of the lumbar spine should include range of motion testing in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Each examiner should also describe the functional limitations resulting from the service connected PTSD, headaches, lumbar spine, and left hand disabilities. The examinations to assess the lumbar spine and left hand disabilities should also describe the Veteran's functional limitations during flare-ups. If flare-ups are not shown during either examination, the examiner should conduct efforts to obtain adequate information regarding the impairment resulting from flare-ups by alternative means, to include statements as to any such impairment by the Veteran himself. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). With respect to the Veteran's left hand in particular, x-rays should be taken to determine if he has arthritis. If so, the examiner should answer the following: Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran left hand arthritis that had its onset in, or is otherwise related to his periods of active service? A complete rationale for the opinion should be provided that should reflect specific consideration of the Veteran's assertions. 3. After completion of the above and any other warranted development, the AOJ should re-adjudicate the claims that have been remanded. If a benefit sought on appeal remains denied, the AOJ should furnish the Veteran and his representative with an appropriate supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).