Citation Nr: 1804261 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 07-24 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder(PTSD). 2. Entitlement to service connection for coccidiomycosis, to include a right chest wall abscess, resection of the right chest wall and reconstruction of the chest, to include as due to toxic herbicide exposure. 3. Entitlement to service connection for a right clavicle disorder with scars as secondary to coccidiomycosis and as due to toxic herbicide exposure. 4. Entitlement to service connection for arthritis in the shoulders, ribs, chest wall and hands, to include as secondary to coccidiomycosis and as due to toxic herbicide exposure. 5. Entitlement to special monthly compensation (SMC) based on anatomical loss of the ribs. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S.Wainaina, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1963 to September 1966. This matter is on appeal from rating decisions in April 2004 and January 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before a Decision Review Officer in February 2010 and before the undersigned Veterans Law Judge in June 2012. Transcripts of the hearings are of record. In a January 2007 rating decision, the RO increased the Veteran's initial rating for PTSD to 70 percent for the entire period on appeal. However, since the RO granted only a portion of the Veteran's increased rating claim, his appeal properly remains before the Board for review. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Corchado v. Derwinski, 1 Vet. App. 160 (1991). In April 2013, the Board denied an earlier effective date than October 17, 2003, for the grant of service connection for PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In an October 2013 Order, the Board's decision on this issue was remanded back to the Board for action consistent with the terms of a joint motion filed by the parties. The Board denied this issue in an August 2014 decision. The case was also remanded in April 2013 for further development of the issues listed on the title page herein. The issues of entitlement to an initial rating in excess of 70 percent for PTSD, as well as entitlement to service connection for coccidiomycosis, a right clavicle disorder, arthritis in the shoulders, ribs, chest wall and hands, and to SMC are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction. VA will notify the appellant if additional action is required on his part. REMAND The April 2013 Board remand, in pertinent part, directed the originating agency to schedule the Veteran for an examination in order to determine the etiology of the Veteran's coccidiomycosis. The Veteran was not provided such an examination. The issue was not readjudicated, followed by a supplemental statement of the case as per remand directives. Compliance with remand directives is not discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board must remand the matter so that the April 2013 remand directives may be substantially completed. The Veteran should be scheduled for an examination. While he was afforded a VA examination in July 2011, the Board concludes that additional information is needed from the VA examiner. On that occasion, the questions the RO presented to the VA examiner related primarily to an episode of pneumonia while on active duty. In response, the examiner stated that the Veteran's coccidiomycosis was not related to his prior treatment for pneumonia, as coccidiomycosis is a fungal disease, while pneumonia is bacterial. The examiner also pointed out that coccidiomycosis is "endemic" to the San Joaquin Valley in California. However, these opinions do not address the possibility of a relationship between coccidiomycosis and his prior toxic herbicide exposure, which exposure has been previously conceded by both the RO and the Board. While it is true that coccidiomycosis is not a disorder that is presumed related to toxic herbicide exposure, this does not end the inquiry. See 38 C.F.R. § 3.307, 3.309. Rather, the Veteran may still establish that his coccidiomycosis is related to toxic herbicide exposure if other evidence of record indicates such a relationship. See Brock v. Brown, 10 Vet. App. 155 (1997); see also Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994) (addressing radiation exposure claims). Here, there is no clinical evidence in the record either establishing or disproving that the Veteran's herbicide exposure may have caused or contributed to his coccidiomycosis. Indeed, the Board is not aware of any VA study that has addressed the potential relationship between coccidiomycosis and toxic herbicide exposure. Cf. 77 Fed. Reg. 47,924-28 (August 10, 2012) (Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange). At his hearing before the Board in June 2012, the Veteran testified that he was told by his private physicians that coccidiomycosis can be related to dioxin exposure, and 2,3,7,8-Tetrachlorodibenzodioxin (TCDD) is a recognized contaminant related to toxic herbicides such as Agent Orange. 38 C.F.R. § 3.307. The Veteran provided a private treatment record from Cedars-Sinai medical network dated in April 2014 to that effect. The VA examiner who provided the opinion in July 2011 should also be asked to provide an opinion as to whether the Veteran's coccidiomycosis is related to his toxic herbicide exposure. As for the issue of SMC, the Board notes that a special rating under 38 U.S.C.A. § 1114(k) is for application when there is the loss of certain specific body parts, such as one hand, one foot, creative organ, blindness in one eye, and other similar limitations. 38 C.F.R. § 3.350(a). While it does not appear at this point that the Veteran has lost any body part that falls under this section, it is best to defer this issue until the additional evidence is obtained. See 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). Action on the additional service connection issues must also be deferred at this time, as it is alleged that they are related to coccidiomycosis and herbicide exposure. The Veteran and his spouse testified in a June 2012 hearing that his PTSD has gotten worse. The Board is of the opinion a new VA examination is necessary to determine the current nature of the Veteran's PTSD. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA and non- VA treatment records. Acquire any treatment records that may be available from the VA Medical Center in West Los Angeles, California, since August 2011 or from any other VA Medical Center from which he has received treatment. 2. After the above development has been completed, forward the claims file to the VA examiner who examined the Veteran in July 2011. He or she should be asked to express an opinion as to whether it is at least as likely as not (i.e., a 50 percent possibility or greater) that the Veteran's coccidiomycosis is related to his toxic herbicide exposure while serving in the Republic of Vietnam. Such exposure is presumed. This opinion must be accompanied by adequate reasons and bases. Such reasons and bases may include, but are not limited to, specifically cited medical literature, evidence in the record, and prior VA examination reports. The examiner should consider the Veteran's lay statements regarding the incurrence of these disorders. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If the examiner who performed the examination in July 2011 is no longer available, the claims file should be forwarded to a new examiner. A new examination is not necessary unless the examiner determines that one is required. If an examination is deemed necessary, all indicated testing should be accomplished. 3. Schedule the Veteran for a VA examination to ascertain the current severity of the Veteran's service-connected PTSD. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ) for mental health disorders. The DBQ should be filled out completely as relevant. The examiner should comment upon the functional impairment due to the Veteran's service-connected disability as it relates to ordinary activity and capacity for occupational tasks. 4. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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. §§ 5109B, 7112 (2012). _________________________________________________ BARBARA B. COPELAND 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).