Citation Nr: 1804235 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 09-36 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for Lyme disease, to include any residuals. 2. Entitlement to service connection for a bilateral knee disability, to include as secondary to Lyme disease. 3. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to Lyme disease. 4. Entitlement to service connection for a disability manifested by memory loss, to include as secondary to Lyme disease. 5. Entitlement to service connection for a lumbar spine disability, to include as secondary to Lyme disease. 6. Entitlement to service connection for a cervical spine disability, to include as secondary to Lyme disease. 7. Entitlement to service connection for headaches, to include as secondary to Lyme disease. 8. Entitlement to service connection for a disability manifested by cognitive impairment, to include as secondary to Lyme disease. 9. Entitlement to service connection for a disability manifested by dizziness and poor balance, to include as secondary to Lyme disease. 10. Entitlement to service connection for tinnitus, to include as secondary to Lyme disease. 11. Entitlement to service connection for a heart disability, to include as secondary to Lyme disease. 12. Entitlement to service connection for splenomegaly, to include as secondary to Lyme disease. 13. Entitlement to service connection for diffuse myelitis, to include as secondary to Lyme disease. 14. Entitlement to service connection for an organic disease of the nervous system (to include chronic pain), to include as secondary to Lyme disease. 15. Entitlement to service connection for radial neuropathies of the feet and hands, to include as secondary to Lyme disease. REPRESENTATION Veteran represented by: Shana Dunn, Esq. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1981 to August 1981, with additional service in the Army National Guard of Wisconsin until August 1987. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's claims of entitlement to service connection for Lyme disease, for a bilateral knee disability, for a bilateral shoulder disability, for a disability manifested by memory loss, for a lumbar spine disability, and for a cervical spine disability. In October 2009, the Veteran withdrew his request for a Board hearing with regard to those issues. In a March 2010 rating decision, the RO (in pertinent part) denied the Veteran's claims of entitlement to service connection for headaches, for a disability manifested by cognitive impairment, for a disability manifested by dizziness and poor balance, for tinnitus, for a heart disability, for splenomegaly, for diffuse myelitis, for an organic disease of the nervous system (to include chronic pain), and for radial neuropathies of the feet and hands. In June 2011, the Board remanded all of the current matters for further development. In February 2012, the Board denied the matters of service connection for Lyme disease, for a bilateral knee disability, for a bilateral shoulder disability, for a disability manifested by memory loss, for headaches, for a disability manifested by cognitive impairment, for a disability manifested by dizziness and poor balance, for a heart disability, for splenomegaly, for diffuse myelitis, for an organic disease of the nervous system (to include chronic pain), and for radial neuropathies of the feet and hands; and also remanded the matters of service connection for a lumbar spine disability, for a cervical spine disability, and for tinnitus for further development. The Veteran appealed the Board's February 2012 decision to the United States Court of Appeals for Veterans Claims (Court) with regard to all of the matters that were denied therein. In November 2012, the Board again remanded the matters of service connection for a lumbar spine disability, for a cervical spine disability, and for tinnitus for further development. In December 2012, the Court issued an Order that vacated the February 2012 Board decision with regard to the issues of service connection for Lyme disease, for a bilateral knee disability, for a bilateral shoulder disability, for a disability manifested by memory loss, for headaches, for a disability manifested by cognitive impairment, for a disability manifested by dizziness and poor balance, for a heart disability, for splenomegaly, for diffuse myelitis, for an organic disease of the nervous system (to include chronic pain), and for radial neuropathies of the feet and hands, and remanded those matters for readjudication consistent with instructions outlined in a December 2012 Joint Motion for Remand by the parties. In August 2013, the Board remanded all of the current matters for further development. In January 2014, the Board denied all of the current matters. The Veteran appealed the Board's January 2014 decision to the Court with regard to all of the matters that were denied therein. In December 2014, the Court issued an Order that vacated the January 2014 Board decision with regard to all of the issues, and remanded those matters for readjudication consistent with instructions outlined in a December 2014 Joint Motion for Remand by the parties. In November 2015, the Board remanded all of the current matters for further development. In September 2016, the Board denied all of the current matters. The Veteran appealed the Board's September 2016 decision to the Court with regard to all of the matters that were denied therein. In June 2017, the Court issued an Order that vacated the September 2016 Board decision with regard to all of the issues, and remanded those matters for readjudication consistent with instructions outlined in a June 2017 Joint Motion for Remand by the parties. The case has now been assigned to the undersigned Veterans Law Judge. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND On review of the record, the Board has found that additional development is necessary for the claims on appeal. In both the December 2014 Joint Motion for Remand and the June 2017 Joint Motion for Remand, it was noted that the Board had failed to discuss a fully favorable November 24, 2009 decision of the Social Security Administration (SSA), wherein an Administrative Law Judge had found the Veteran to be disabled due to various conditions, including "Lyme's Disease." This November 24, 2009 SSA decision, written in the form of a letter to the Veteran, includes the following statement by the Administrative Law Judge: "I announced the basis for my decision at the hearing held on November 16, 2009. I adopt here those findings of fact and reasons." While the November 24, 2009 SSA decision letter is contained in the claims file, the Board notes that the transcript of the November 16, 2009 SSA hearing is not of record. On remand, an attempt must be made to obtain all records pertaining to the Veteran from the Social Security Administration (SSA). See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Thereafter, the Veteran should be scheduled for a new VA infectious diseases examination with medical opinion, in order to fully comply with the Board's November 2015 remand instructions and to take into account all newly obtained evidence (including the medical treatise articles submitted by the Veteran's attorney in October 2017). A March 2016 VA medical opinion did not comply with the Board's November 2015 remand instructions because the opinion provider did not examine the Veteran. Thereafter, an April 2016 VA infectious diseases examination with medical opinion did not comply with the Board's November 2015 remand instructions because, as noted in the Board's September 2016 decision, the April 2016 examination report "lack[ed] sufficient detail, including the symptoms to support a diagnosis" of Lyme disease, and the April 2016 VA examiner's finding "that some [of] the Veteran's symptoms can be ascribed to Lyme disease or post-treatment Lyme disease syndrome" was based solely "on the Veteran's report of symptoms and his report of history, which is inconsistent with the medical evidence of record." In light of the above, a new VA examination with medical opinion must be obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following actions: 1. Obtain from the SSA complete copies of all records pertaining to the Veteran, including any application(s) and decision(s) regarding SSA disability benefits, all medical evidence considered in making such decision(s), and the transcript of the November 16, 2009 hearing before the SSA Administrative Law Judge (wherein the basis for the November 24, 2009 decision was announced). Any negative search result should be noted in the record and communicated to the Veteran. 2. After completing the development requested in item 1, schedule the Veteran for a VA infectious diseases examination with an infectious disease specialist in order to ascertain the nature and etiology of his currently claimed disabilities. The claims file should be made available to the examiner for review. Any indicated tests should be accomplished, including human leukocyte antigen (HLA) or post-treatment Lyme disease syndrome (PTLDS) testing if necessary, and all pertinent symptomatology and findings must be reported in detail. [If it is not possible to have the Veteran physically examined by an infectious disease specialist, then have the Veteran examined by a clinician of appropriate expertise, and have the results of the examination forwarded to an infectious disease specialist for completion of the below opinion request.] After reviewing the claims file, the examiner should provide an opinion on the following questions: (a) Does the Veteran have (or has he had at any time during the period of claim) a diagnosis of Lyme disease or any residuals thereof, including PTLDS? The examiner should specifically consider whether any of the Veteran's claimed disabilities [i.e., bilateral knee disability, bilateral shoulder disability, disability manifested by memory loss, lumbar spine disability, cervical spine disability, headaches, disability manifested by cognitive impairment, disability manifested by dizziness and poor balance, tinnitus, heart disability, splenomegaly, diffuse myelitis, organic disease of the nervous system (to include chronic pain), and radial neuropathies of the feet and hands] are residuals of the Veteran's claimed Lyme disease that occurred in 1984. (b) Is it at least as likely as not (50 percent probability or greater) that any Lyme disease, or identified residuals thereof, was incurred in, related to, or caused by any incident of the Veteran's military service (to include the noted Lyme disease diagnosis and treatment in 1984 following a tick bite that was incurred in the line of duty during his National Guard service in June 1984)? The examiner should provide a complete rationale for any opinion provided, with specific consideration given to the pertinent medical opinions and examination reports already of record, the Veteran's reports of continuity of symptomatology since the 1984 tick bite, and all medical treatise articles of record (including those submitted by the Veteran's attorney in October 2017). If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for Lyme disease (to include any residuals), for a bilateral knee disability, for a bilateral shoulder disability, for a disability manifested by memory loss, for a lumbar spine disability, for a cervical spine disability, for headaches, for a disability manifested by cognitive impairment, for a disability manifested by dizziness and poor balance, for tinnitus, for a heart disability, for splenomegaly, for diffuse myelitis, for an organic disease of the nervous system (to include chronic pain), and for radial neuropathies of the feet and hands. If any benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B (2012). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).