Citation Nr: 1801761 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-57 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral elbow disability. 2. Entitlement to service connection for disability manifested by crepitus of the right arm. 3. Entitlement to service connection for right pelvis disability, claimed as sacroilitis. 4. Entitlement to service connection for respiratory disability, to include as due to undiagnosed illness. 5. Entitlement to an initial rating in excess of 10 percent for cervical spine degenerative disc disease and degenerative arthritis, postoperative decompression and laminectomy, prior to January 16, 2013, in excess of 20 percent from January 16, 2013 to August 5, 2015, and in excess of 10 percent from August 6, 2015. 6. Entitlement to an initial, compensable rating for radiculopathy of the right upper extremity. 7. Entitlement to an initial, compensable rating for kidney stones. 8. Entitlement to an initial, compensable rating for traumatic brain injury (TBI). 9. Entitlement to an initial, compensable rating for calcified granuloma, lymph node. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran, E.C., C.F., D.H., W.S., J.S., B.F., and T.S. ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from September 1993 to May 2002 and from November 2004 to May 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2014 and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In September 2017, the Veteran, E.C., C.F., D.H., W.S., J.S., B.F., and T.S. testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Upon review of the claims file, the Board believes that additional development on the claims on appeal is warranted. Service Connection Claims Bilateral Elbow and Right Arm The Veteran's service treatment records reflect that he was treated for pain in the left elbow when he flexed in November 2008. X-ray was normal. He was assessed with tendonitis. In February 2011, the Veteran was assessed with crepitus, swelling and pain of the right forearm. X-ray was negative. The Board notes that the Veteran was afforded examination pertaining to his arms/elbows in March 2014. At that time, the examiner noted history of status post cellulitis of the right elbow from August 2012 and left elbow tendonitis, but found no current disability of the arms/elbows. The examiner noted that it was difficult to get an assessment of the arm due to the Veteran's reported inability to move and lack of cooperation. Continued VA treatment records reflect complaints of elbow pain. A January 2016 report reflects assessment of right lateral epicondylitis. During the Veteran's Board hearing, he and the other witnesses testified to the physical problems still impacting his right arm and elbows. Given the foregoing, the Board believes that the Veteran should be afforded another examination to determine the nature and etiology of the claimed bilateral elbow and right arm disabilities. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Right Pelvis The Veteran's service treatment records from his first period of active service reflects that he was treated for right hip trauma and assessed with right sacroilitis on x-ray in September 1995. The Veteran has reported that he continued to experienced hip pain in and since service. The Veteran was afforded a VA examination in March 2014, at which time the examiner assessed a prior history of right sacroilitis but no current diagnosis. Again, the examiner noted that it was difficult to get an assessment due to his reported inability to move and lack of cooperation. The examiner also noted a lipoma of the right lower back, not near the sacroiliac. The examiner noted that the benign lipoma was noted in service and was only sensitive to direct moderate pressure. She found it less likely than not that the Veteran's pelvic pain/strain is related to service but rather is related to the direct pressure on the lipoma. The Board finds that this examination report is unclear, given that the examiner indicated that the Veteran's lipoma was noted in service, but then determined that the disability was less likely than not related to service. Given the foregoing, the Board believes that the Veteran should be afforded another examination to clarify nature and etiology of the claimed pelvic disability. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Respiratory Condition The Veteran's service treatment records include records of treatment from Kentuckiana Pulmonary Associates dated in 2009 for complaints of chronic, productive cough. The Veteran reported onset of chronic cough in 2001, since returning from Kosovo, where he spent 11 months downwind of burning trash. The Veteran also reported that he was in Iraq for two months in 2007. A March 2009 report reflects that all testing results, including pulmonary function tests, were normal. The Veteran was afforded a VA examination in March 2014, at which time he was assessed with a calcified granuloma/lymph node with no current symptoms. The Veteran was also afforded a VA examination pertaining to his service-connected calcified granuloma in August 2015, at which time he continued to report chronic cough with drainage and noted that he was on allergy medication. The Veteran's service personnel and treatment records reflect his service in Iraq. The Veteran's former representative raised the issue that the Veteran's respiratory issues could be related to his service in Iraq. Service connection can be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). None of the examinations of record fully address the Veteran's reports and treatment of cough in service-which was not attributed to a confirmed diagnosis-or whether the Veteran's complaints of cough and related symptoms are related to an undiagnosed illness. Given the foregoing, the Board believes that such an examination is warranted. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Increased Rating Claims Cervical Spine and Radiculopathy The Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing conditions, and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The Board notes that the Veteran was afforded VA examinations pertaining to the cervical spine, including most recently in September 2015. Review of these examination reports reveal that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted. In light of Correia, these VA examinations are incomplete, and the Veteran must be provided a new VA examination with respect to the cervical spine which provides range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing conditions. To the extent that the new VA examiner is asked to discuss any related neurological impairment and any neurological impairment is to be considered when addressing the claim for increased rating for cervical spine disability, the matter of entitlement to an increased rating for radiculopathy of the right upper extremity is inextricably intertwined with the claim for increased rating. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). In addition, the Veteran has reported worsening symptoms in his hand and right arm stemming from his cervical spine disability, including inability to grip objects or complete tasks with his hands. Accordingly, he should be afforded a new examination to determine the nature and extent of his right upper extremity radiculopathy. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination). TBI During the Veteran's September 2017 Board hearing, he testified that the residuals of his TBI were more severe than demonstrated on recent examination. He and the other lay witnesses testified to his symptoms of memory loss, lack of concentration, and personality changes. The Board has reviewed the March 2014 and September 2015 TBI examination reports, and notes that various result were found to be inconsistent or invalid due to poor or inadequate effort. It is difficult for the Board to ascertain the nature and severity of the Veteran's TBI based on these reports. Given the foregoing, the Veteran should be afforded a new examination to determine the manifestations and severity of his TBI. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See also Green, 1 Vet. App. at 124. Kidney Stones During the Veteran's September 2017 Board, he testified that his kidney stone disability had not resolved and he had recently experienced frequent recurrence, including 1 month prior to the hearing. Accordingly, he should be afforded a new examination to determine the nature and severity of his service-connected kidney stone disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See also Green, 1 Vet. App. at 124. In addition, the Veteran indicated during the Board hearing that he had additional treatment records and hospitalization reports to submit regarding his recent treatment for kidney stones. While this matter is on remand, efforts to obtain these outstanding treatment records should be undertaken. Calcified Granuloma, Lymph Node The Veteran was afforded VA examination pertaining to his calcified granuloma in March 2014, at which time no symptoms related to the disability were indicated and no PFT studies were performed. The Veteran was also afforded an examination in September 2015, at which time the examiner indicated that the Veteran's PFT results were of questionable efforts, and therefore the accuracy of a possible restrictive lung condition were not known. As indicated during the Veteran's Board hearing, he reports continued problems with cough and shortness of breath. In order for the Board to ascertain the current severity of this disability, the Veteran should be afforded a new examination to determine the manifestations and severity of his calcified granuloma. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See also Green, 1 Vet. App. at 124. All Claims Finally, the Board notes that the Veteran's file contains a January 2013 correspondence from the Social Security Administration (SSA) reflecting continuance of disability benefits noting that the Veteran had a period of trial work from August 2009 to April 2010 (while the Veteran was on active duty). It is unclear as to the status of the Veteran's SSA benefits. While SSA are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the possible existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Assist the Veteran in associating with the claims folder updated treatment records, including updated VA treatment records. In particular, the AOJ should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and authorization to enable it to obtain any additional evidence pertinent to the claims on appeal, to specifically include records of treatment for his kidney stones. 2. The AOJ should request that SSA furnish a copy of its decision awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. In requesting these records, the AOJ should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed bilateral elbow and/or right arm disabilities (other than right arm cervical radiculopathy). Any indicated tests should be accomplished. The examiner should review the record prior to examination. The examiner should identify whether the Veteran has right or left elbow or right arm disability(ies). Then the examiner should indicate whether any diagnosed disorder at least at likely has not had its onset in or is otherwise related to a period of active service, to include the reports of treatment of left elbow tendonitis and right arm swelling and crepitus therein. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached with full discussion of the facts and medical principles involved. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed right pelvic disability. Any indicated tests should be accomplished. The examiner should review the record prior to examination. The examiner should identify whether the Veteran has right pelvic disability. Then, the examiner should indicate whether any diagnosed disorder at least at likely has not had its onset in or is otherwise related to a period of active service, to include the report of treatment for sacroilitis in service in 1995. The examiner is also asked to consider and address the March 2014 examination findings of lipoma and indicate whether such had its onset in or is otherwise related to a period of active service. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached with full discussion of the facts and medical principles involved. 5. The AOJ should schedule the Veteran for a VA Gulf War/undiagnosed illness examination, with an appropriate examiner. The examiner must review the claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner is requested to state whether the Veteran's complaints of cough and respiratory symptoms are attributable to a known clinical diagnosis or to a disease process other than a known clinical diagnosis, other than the already service-connected calcified granuloma. If the examiner cannot identify a known disease or disability which causes these symptoms, the examiner should so state. The examiner should clarify whether the symptoms in question are chronic in nature (e.g., present for 6 months or more). The examiner should also indicate whether the Veteran's symptoms and complaints represent a medically unexplainable chronic multi-symptom illness defined by a cluster of signs or symptoms. If the Veteran's complaints are attributable to a known clinical diagnosis, the examiner should render an opinion as to whether such disability is at least as likely as not (e.g., a 50 percent or greater probability) etiologically related to active military service or events therein, to specifically include the 2009 reports of complaint and evaluation for chronic cough. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 6. Schedule the Veteran for a VA examination(s) to ascertain the current severity and manifestations of the Veteran's service-connected cervical spine disability and any related neurological manifestations. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the cervical spine is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should also indicate if there is ankylosis of the spine or resultant neurological impairment. If there is neurological impairment, and particularly with regard to the service-connected right upper extremity radiculopathy, the examiner should identify the nerve or nerves involved and determine the manifestations and severity. The examiner should also comment on the impact of the Veteran's cervical spine and right arm radiculopathy disabilities on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 7. Schedule the Veteran for a VA examination to determine the severity of his service-connected TBI. The claims file should be made available to the examiner for review in connection with the examination. All appropriate testing should be conducted, including the traumatic brain injury (TBI) rating template. The examiner should also comment on the impact of the Veteran's TBI on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 8. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected kidney stone disability. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner is asked to address the frequency and treatment required for the Veteran's kidney stones, and whether the disability is productive of attacks of colic. The examiner should also comment on the impact of the Veteran's kidney stones on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 9. Schedule the Veteran for a VA respiratory examination to determine the severity of his service-connected calcified granuloma by an appropriate examiner. The claims folder must be made available and reviewed by the examiner. All signs and symptoms necessary for rating the Veteran's calcified should be reported in detail (including all information for rating this disability under 38 C.F.R. § 4.97, Diagnostic Code 6828). All necessary tests and studies are to be performed unless contraindicated, including pulmonary function tests. If PFT testing is medically contraindicated, the examiner must specifically state that and explain why the testing cannot be accomplished. The examiner should also comment on the impact of the Veteran's calcified granuloma on his ability to work. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 10. The AOJ should undertake any additional development it deems warranted. 11. Then, the AOJ should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the Veteran and her representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ A. S. CARACCIOLO 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) (2017).