Citation Nr: 1803128 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 11-16 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for residuals of an injury to the right knee. 2. Entitlement to service connection for a sacroiliac joint disorder. 3. Entitlement to service connection for arthritis of the right fifth digit, to include as secondary to service-connected residuals of a right thumb fracture. 4. Entitlement to service connection for fibromyalgia. 5. Entitlement to service connection for an autoimmune disorder, also claimed as sarcoidosis. 6. Entitlement to service connection for a kidney disorder, claimed as kidney stones and/or renal colic. 7. Entitlement to service connection for a lumbosacral spine disorder, to include spinal fracture, radiculopathy, and/or degenerative disc disease. 8. Entitlement to a compensable rating for genital herpes. 9. Entitlement to a clothing allowance for the year 2012. 10. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 18, 2010. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to June 1984. Thereafter, he had unverified periods of active duty for training and/or inactive duty training between 1994 and 2005 as a member of the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2007, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge on the issue of entitlement to service connection for a lumbosacral spine disorder. A transcript of that hearing is of record. In various statements to VA, he requested a second hearing before a Veterans Law Judge regarding additional issues perfected for appeal. In November 2014 and August 2016, however, he submitted written statements cancelling all pending hearing requests. In November 2017, the Veteran requested a Travel Board hearing on the issues of entitlement to an earlier effective date for the grant of service connection for major depressive disorder, as well entitlement to a rating in excess of 70 percent prior to September 20, 2016. Since those issues have not yet been certified to the Board and the hearing request is pending, the Board does not have jurisdiction over those issues and has not addressed them herein. This case has been before the Board on multiple occasions. The procedural history of the case has been summarized in prior Board decisions and will not be reiterated in full here. However, most recently, in November 2016, the Board remanded issues numbered one through nine for further development. Unfortunately, the development requested has not been accomplished, and another remand is necessary. With regard to the TDIU claim, the Board remanded the issue in August 2015. In October 2016, the RO granted entitlement to a TDIU effective from November 18, 2010, to September 20, 2016, and an evaluation of 100 percent for major depressive disorder, effective September 20, 2016. In October 2016, the RO also issued a supplemental statement of the case denying entitlement to a TDIU prior to November 18, 2010, and certified that claim to the Board in November 2016. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As noted above, in November 2016, the Board remanded this case for the development outlined below. Unfortunately, it does not appear as if any of the development requested has been completed. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271. In Stegall, the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. Therefore, a remand is necessary to accomplish the development discussed below. Residuals of an Injury to the Right Knee In-service evidence shows that the Veteran sought treatment in January 1984 for a right knee contusion with mild abrasion. Post-service evidence indicates that he has a current right knee disorder, variously diagnosed as degenerative joint disease (August 2013 orthopedic consultation), chronic knee arthralgia (July 2013 emergency department record), and mild loss of the medial joint space likely related to early degenerative process (September 2013 X-ray). As the evidence indicates that he was treated for a right knee contusion in service, that he has a current right knee disorder, and he has asserted that his right knee disorder is related to service, the claim must be remanded for an examination to determine medical nexus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Autoimmune Disorder, claimed as Sarcoidosis In-service X-ray evidence showed multiple calcified granulomas in June 1984. The Veteran submitted a National Institute of Health (NIH) document indicating sarcoidosis begins as granulomas. As the June 1984 X-ray indicates granulomas, a medical opinion is necessary to address whether the granulomas noted on the June 1984 X-ray were an early sign of sarcoidosis. Genital Herpes The claim for genital herpes must be remanded for an examination to address the Veteran's current symptoms. Some of his medical records, including November 2010, December 2010 and July 2012 VA treatment records indicate that he used the oral medication acyclovir. It is unclear whether the use of acyclovir is systemic therapy. Additionally, January 2015, July 2015 and October 2015 VA treatment records indicate that he reported that he thought he might have a recurrence of herpes. As the evidence suggests that his symptoms may have worsened, the claim must be remanded for an examination to address his current symptoms and clarify whether he is still using acyclovir for genital herpes symptoms. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Mississippi National Guard Records VA has not satisfied its duty to assist in obtaining the Veteran's complete service records. The RO requested Mississippi National Guard records and in an August 2012 letter, the Adjutant General's Office stated that it was enclosing copies of his personnel and medical records in its possession but that any additional records must come from the archives branch and that inquiries should be made directly to the archives branch as access to the files is limited. Nothing in the record indicates that the RO contacted the archives branch to inquire if it had any additional records pertaining to his service in the National Guard. Additional National Guard records could indicate when the Veteran served on active duty for training (ADT) and inactive duty for training (IADT), whether the November 1998 motor vehicle, which injured his back, took place while he was on ADT or IADT, and whether his symptoms related to his right fifth finger, fibromyalgia, or kidney disorder had their onset during one of his periods of ADT or IADT. Therefore, the claims must be remanded to attempt to obtain the Veteran's complete Mississippi National Guard records. Clothing Allowance in 2012 and TDIU The issue of whether the Veteran is entitled to a clothing allowance for the year 2012 is inextricably intertwined with the issue of entitlement to service connection for knee and lumbar spine disabilities. In addition, the TDIU claim is inextricably intertwined with the remanded claims. Therefore, these claims must also be remanded. Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran's complete Mississippi National Guard record from the archives branch, and any other appropriate authority, including the dates of ADT and IADT. All steps taken to obtain the records should be documented. If no records are available, this fact should be noted in the electronic claims file. 2. Schedule the Veteran for an examination to determine the nature and etiology of any right knee disorder. (a) Identify all right knee disorders, to include degenerative joint disease and/or arthralgia. (b) If the Veteran is found to have a right knee disorder, the examiner is requested to render an opinion as to whether it is at least as likely as not that the right knee disorder had its onset during service or is otherwise related to service, to include the January 1984 in-service treatment of a right knee contusion. As necessary, forward the electronic claims file to the examiner for review. A complete rationale for all opinions must be provided. If the examiner cannot provide the above requested opinion without resort to speculation, it must be so stated, and a supporting rationale provided for that opinion. 3. Schedule the Veteran for an examination to determine whether it is at least as likely as not that sarcoidosis had its onset during service or is otherwise related to service, to include the June 1984 X-ray showing multiple calcified granulomas. The VA examiner is requested to review the National Institute of Health document indicating sarcoidosis begins as granulomas cited in an April 2016 brief by the Veteran's attorney. As necessary, forward the electronic claims file to the examiner for review. A complete rationale for all opinions must be provided. If the examiner cannot provide the above requested opinion without resort to speculation, it must be so stated, and a supporting rationale provided for that opinion. 4. Schedule the Veteran for an examination to ascertain the current severity of his genital herpes. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should note all medications taken by the Veteran for the disability, to include acyclovir, and address whether the treatment constitutes systemic therapy. As necessary, forward the electronic claims file to the examiner for review. A complete rationale for all opinions must be provided. If the examiner cannot provide the above requested opinion without resort to speculation, it must be so stated, and a supporting rationale provided for that opinion. 5. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further 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). 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). _________________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).