Citation Nr: 1804451	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  09-36 404	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of service connection for memory loss and concentration problems.

2. Whether new and material evidence has been received to reopen a claim of service connection for a sleep disorder.

3. Whether new and material evidence has been received to reopen a claim of service connection for shortness of breath.

4. Whether new and material evidence has been received to reopen a claim of service connection for a bilateral eye disability.

5. Whether new and material evidence has been received to reopen a claim of service connection for fibromyalgia.

6. Whether new and material evidence has been received to reopen a claim of service connection for chronic fatigue syndrome (CFS).

7. Entitlement to service connection for a disorder manifested by memory and concentration loss, to include as a result of an undiagnosed illness.

8. Entitlement to service connection for a sleep disorder.

9. Entitlement to service connection for a bilateral eye disability.

10. Entitlement to service connection for fibromyalgia.

11. Entitlement to service connection for a bilateral upper extremity disability, to include manifestations of an undiagnosed illness.

12. Entitlement to service connection for a right knee disability.

13. Entitlement to service connection for a left knee disability.

14. Entitlement to an increased rating in excess of 40 percent for chronic low back strain with anterior wedging.

15. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 15, 2013.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his sister



ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1989 to September 1992, with service in Southwest Asia. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) in September 2007, January 2009, and in December 2012. 

In June 2017, the Veteran and his sister testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. 

Although the RO reopened the Veteran's claim of service connection for a sleep disorder (in a February 2016 supplemental statement of the case (SSOC)) and fibromyalgia (in the December 2012 rating decision) by deciding the issues on the merits, the question of whether new and material evidence has been received to reopen such issues must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the issues accordingly.

Because memory and concentration loss are symptoms, rather than a disability, that issue has been recharacterized to reflect that it is for a disability manifesting in those symptoms.

The Veteran was granted entitlement to TDIU, effective April 15, 2013, in an April 2017 rating decision. However, the record indicates that his service-connected disabilities may have prevented him from working during the entire appeal period. Because a TDIU rating is inherent in any request for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue on the title page and characterized to reflect that the relevant appeal period is prior to April 15, 2013.

After the Veteran filed his July 2015 substantive appeal (VA Form 9), his appeal of entitlement to service connection for bilateral lower extremity (leg) nerve damage was granted in an April 2017 rating decision. Because that decision represents a full grant of the benefit sought, the issue is not before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

The issues of entitlement to service connection for a disorder manifested by memory loss, a sleep disorder, a bilateral eye disability, fibromyalgia, a bilateral upper extremity disability, and bilateral knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1. A September 1998 rating decision denied the Veteran's claim of service connection for a sleep disorder, shortness of breath, and a bilateral eye disability. The Veteran was informed of the decision but he did perfect an appeal for the decision nor did he submit new and material evidence within a year of the decision.  Therefore, the decision became final.

2. An April 2005 rating decision denied the Veteran's claim of service connection for memory loss and concentration problems, fibromyalgia, and CFS. The Veteran was informed of the decision but he did not appeal, and he did not submit additional evidence within a year after the decision. Therefore, the decision became final.

3. Evidence received since the September 1998 rating decision is relevant and probative to the issues of service connection for a sleep disorder and a bilateral eye disability. 

4. Evidence received since September 1998 rating regarding the issue of service connection for shortness of breath is cumulative. 

5. Evidence received since the April 2005 rating decision is relevant and probative to the issues of service connection for memory loss and concentration problems and fibromyalgia.

6. Evidence received since the April 2005 rating decision regarding the issue of service connection of CFS is cumulative.

7. Throughout the appeal period, the Veteran has been able to move his spine and has not had ankylosis.

8. The Veteran's service-connected disabilities, notably his spine disability, prevented him from securing and following substantially gainful employment from January 15, 2011 to April 14, 2013.


CONCLUSIONS OF LAW

1. The September 1998 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).

2. The April 2005 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).

3. The evidence received since the April 2005 rating decision, which denied service connection for memory loss and concentration problems, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

4. The evidence received since the September 1998 rating decision, which denied service connection for a sleep disorder, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

5. The evidence received since the September 1998 rating decision, which denied service connection for shortness of breath, is not new and material, and the claim is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

6. The evidence received since the September 1998 rating decision, which denied service connection for a bilateral eye disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

7. The evidence received since the April 2005 rating decision, which denied service connection for fibromyalgia, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

8. The evidence received since the April 2005 rating decision, which denied service connection for CFS, is not new and material, and the claim is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

9. The criteria for a disability rating in excess of 40 percent for chronic low back strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5237 (2017).

10. The criteria for entitlement to TDIU from January 15, 2011 to April 14, 2013 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.1, 4.3, 4.16 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist
With respect to the issues being decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).  
Throughout the appeal period, the Veteran has requested VA treatment records from (a) the Central Texas Health Care System (HCS) (which includes Austin and Temple) from January 1993, (b) the El Paso HCS from approximately January 1992, and (c) the North Texas HCS (which includes Dallas) for January 2011 and August through September 2006. After extensive review, the Board finds that the records are associated with the file, as available (some records, such as Central Texas HCS records for 1994 to 1996 could not be found).

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist related to the issues denied herein. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As such, a remand for issuance of a supplemental state of the case is not necessary.  38 C.F.R. § 20.1304(c). 

II. New and Material Evidence

Legal Criteria

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003).

The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010).

While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). 

Factual Background

A September 1998 rating decision denied the Veteran's claim of service connection for memory loss (based on a finding that there was no current diagnosis nor medical evidence showing it was a manifestation of an undiagnosed illness), a sleep disorder (based on a finding that there was no current diagnosis nor medical evidence showing it was a manifestation of an undiagnosed illness), shortness of breath (based on a finding that there was no current diagnosis nor medical evidence showing it was a manifestation of an undiagnosed illness), and a bilateral eye disability (based on a finding that there was no current diagnosis). Specifically, for shortness of breath, the AOJ stated that "there are no objective, clinical findings and/or test results support[ing] the complaint." Although the Veteran filed a timely notice of disagreement (NOD), he did not file a substantive appeal after the AOJ issued a statement of the case (SOC) in January 1999. As a result, the September 1998 rating decision became final.

AT the time of the September 1998 denial, the evidence included service treatment record from February 1989 to August 1996; VA outpatient treatment records from September 1992 to September 1998; VA examinations of December 1992, October 1995, August 1997, September 1997, November 1997 and December 1997; and, the Veteran's statements.  
The Board notes that at the November 1997 VA examination the Veteran reported shortness of breath that reoccurred daily and was associated with strenuous activities. The examiner diagnosed transitory reactive airway disease.

An April 2005 rating decision denied service connection for memory loss due to the absence of new and material evidence, and also denied service connection for fibromyalgia and CFS based on a finding that there was no current diagnosis nor evidence showing either was a manifestation of an undiagnosed illness. A timely NOD was not filed for that decision; thus, it became final.

Of record at the time of the April 2005 decision was the Veteran initial claim for chronic fatigue, which was later recharacterized as for CFS, his service treatment records (STRs), and VA treatment records retrieved at various times from the Central Texas HCS from September 1992 through January 2005, and from the El Paso HCS from July 1989 to July 1993 and January 1997 to September 1998. Such records reflected complaints of fatigue. See September 1997 VA treatment records.

Analysis

      Memory loss, Sleep disorder, Bilateral eye disability, fibromyalgia

Upon review of the evidence and as will be explained in more detail below, the Board finds that regarding memory loss, a sleep disorder, and a bilateral eye disability, new and material evidence has been received since the last final disallowance and the claims are reopened.

Added to the record since the September 1998 final rating decision are VA outpatient treatment records which show a diagnosis of sleep apnea (June 2006), and diagnoses of RPE detachment of the left eye and hypertensive retinopathy in the right eye (March 2017).  As it pertains to memory loss, since the April 2005 rating decision, VA outpatient treatment records showing a finding of mild memory loss (See VA examination of February 2017) have been added to the record.  

At the time of the prior final denials, there was no evidence of a diagnosis of a sleep disorder, bilateral eye disability or memory loss.  Since then, the above added evidence tends to show a diagnosis of memory loss, a sleep disorder and a bilateral eye disability.  The evidence cures an evidentiary defect that existed at the time of the prior denial, namely, the lack of a diagnosed disability.  

As it pertains to fibromyalgia, since the last final denial of April 2005 Social Security Administration (SSA) records have been added to the file which contain February 2011 through September 2011 private treatment records from Dr. E. Vazquez, wherein he assessed unspecified myalgia and myositis, with a medical diagnosis code of 729.1.  The 2011 private treatment records reflecting an assessment of unspecified myalgia and myositis are relevant and probative evidence tending to show a diagnosis of fibromyalgia because medical diagnosis code 729.1 states that an approximate synonym of unspecified myalgia and myositis is fibromyalgia. See http://www.icd9data.com/2015/Volume1/710-739/725-729/729/729.1.htm.  This cures the evidentiary defect that existed at the time of the prior denial, namely, the lack of a diagnosis of fibromyalgia.  As a result, the issue of service connection for fibromyalgia may be reopened.

      Shortness of breath

Evidence received since the September 1998 final rating decision includes VA outpatient treatment records showing a prescription for Albuterol for shortness of breath (August 2015), and the Veteran's testimony at the June 2017 hearing that shortness of breath could be due to his sleep apnea.

Upon review of the evidence, the Board finds that the Veteran has not submitted evidence showing a current diagnosis relating to a pulmonary disability manifesting in shortness of breath, nor that his shortness of breath is a manifestation of an undiagnosed illness. Although the November 1997 VA examiner diagnosed transitory reactive airway disease, the AOJ denied on the bases that there were no objective, clinical findings or test results supporting his complaint of shortness of breath; therefore, the AOJ denied on the basis of no current diagnosis. The November 1997 VA examiner's diagnosis cannot be used as new evidence of a current diagnosis because it was of record at the time of the April 2005 rating decision. 

To the extent that the Veteran now argues that he has shortness of breath due to service, these statements are duplicative of statements at the time of the September 1998 rating decision.  Moreover, the records indicating that the Veteran was prescribed medication for his shortness of breath are simply additional duplicative evidence that he has shortness of breath, a fact already in existence at the time of the prior denial, not a diagnosed disability. Similarly, the February 2005 impression of dyspnea is simply a synonym for shortness of breath and is therefore also duplicative of previous evidence. See https://www.mayoclinic.org/symptoms/shortness-of-breath/basics/definition/sym-20050890. 

The Board further notes that, new theories of entitlement are not the basis for reopening a previously denied claim, and any evidence submitted in support of that new theory, such as a diagnosis of sleep apnea, does not warrant reopening of the Veteran's shortness of breath claim because it is not new evidence of a current disability manifesting in shortness of breath (rather than a sleep disorder) nor that shortness of breath is a manifestation of an undiagnosed illness. Because new and material evidence showing that the Veteran has a current diagnosis manifesting in shortness of breath or that the Veteran's shortness of breath is a manifestation of an undiagnosed illness, the claim may not be reopened.

      CFS

Added to the records since the last final denial of April 2005 are VA outpatient treatment records reflecting complaints of fatigue, and testimony at the June 2017 hearing wherein the Veteran testified that his fatigue could be due to sleep apnea and that he has CFS.  

Upon review of the evidence, the Board finds that no new and material evidence has been submitted sufficient to reopen the claim for service connection for CFS.  To the extent that the Veteran has stated he has CFS, such is duplicative of his statements at the time of the prior denial.  Moreover, reports of fatigue were already of record at the time of the April 2005 rating decision and so more recent reports are duplicative. New reports of fatigue are not accompanied by evidence tending to show such fatigue is a result of an undiagnosed illness. Because new and material evidence has not been received, the Veteran's claim of service connection for chronic fatigue (recharacterized as for CFS) may not be reopened.


III. Increased Rating

Legal Criteria

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the matter or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). An increased rating has an effective date up to one year prior to receipt of the claim, if it is "factually ascertainable" that worsening took place within that one-year time period. 38 C.F.R. § 3.400(o)(2)

The Veteran is currently rated at 40 percent disabling pursuant to Code 5237, for lumbosacral strain, and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which... the entire thoracolumbar spine or the entire spine is fixed in flexion or extension[.]" See id., Note (5).

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.




Factual Background 

The Veteran filed for an increased rating for his low back disability in April 2011, so the relevant time period is from April 2010. He underwent a VA examination in July 2012, wherein he reported that he was unable to run, exercise, and do his daily routine, such as cleaning his yard. He did not report flare-ups. His range of motion showed movement in all ranges, such as flexion and extension, including after repetitive use. The examiner opined that the Veteran did not have intervertebral disc syndrome (IVDS) and that the objective findings were not consistent with the Veteran's subjective complaints.

September and October 2012 records received from the SSA reflect that the Veteran had decreased movement of his spine, but still had movement.

The Veteran underwent another VA spine examination in January 2017, wherein he reported that he had open heart surgery less than a month prior to the examination. He reported that could not bend at all due to his back disability and heart disability and avoided strenuous activity. He could not lift more than five lbs. He would lose his balance trying to bend with severe and intense back pain. He could not stand, walk, or sit for long periods of time. He did not report flare-ups, but the examiner stated that the examination was being conducted during one. The examiner explained that he was unable to test range of motion because of the Veteran's recent heart surgery. There was no ankylosis of the spine, nor did the Veteran have IVDS. 

During a February 2017 VA examination, the Veteran reported that flare-ups of the back consisted of sharp, shooting pain. He had difficulty bending over, sitting down, and standing upright for prolonged periods of time. Range of motion demonstrated movement in all ranges, including after additional functional loss. There was no ankylosis of the spine, nor did the Veteran have IVDS.

During his June 2017 Board hearing, the Veteran testified that at times he would have to wait in bed until he did exercises or something to move his legs and get rid of the pain. He was experiencing more difficulties in his lower back. He stated that he has movement in his back, but has limitation, such as when bending over. His sister testified that he has significant back pain.

Analysis 

As previously noted, the Veteran's back disability is currently rated as 40 percent disabling which contemplates findings of flexion limited to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine.  To warrant a disability rating in excess of 40 percent, the evidence should show unfavorable ankylosis of the thoracolumbar spine. In this regard, the Board notes that the evidence of record has consistently shown, and it does not appear that the Veteran has ever claimed otherwise, that the Veteran has movement in his spine. Although he reports limitations in movement due to pain, his own testimony reflects that he has movement in his spine. Although the Veteran reported that he could not bend his back during his January 2017 VA examination, the preponderance of the evidence shows that such limitation was of short duration and the result of a recent open heart surgery; as a result, the Board does not consider it probative evidence of an inability to move his spine. Although he testified that he would have to wait in bed until he did exercises, such inability to move is of limited duration and is similarly given little probative weight. Because the preponderance of the evidence reflects that the Veteran is able to move his spine and does not have the functional equivalent of ankylosis, an increased rating is not warranted and the claim must be denied.

The Board has considered whether the Veteran would be entitled to an increased rating pursuant to a different Code. IVDS is rated pursuant to the Formula for Rating IVDS Based on Incapacitating Episodes. The evidence reflects that the Veteran does not have IVDS nor has he had incapacitating episodes requiring bed rest prescribed by a physician. Although he testified that he would have to rest in bed until he did exercises, such bedrest was not prescribed by a physician. Accordingly, the Veteran is properly rated pursuant to the General Formula.




IV. TDIU

The Veteran meets the schedular criteria for TDIU prior to April 15, 2013. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In April 2017, the Veteran was granted TDIU with an effective date of April 15, 2013, because the AOJ determined that April 15, 2013 was the first day that the Veteran did not work. While the Veteran reported that he worked from September 2011 to October 2011, from January 2012 to April 2012, and in April 2013, the evidence reflects that such employment was not substantially gainful because it was sporadic and short-term. Indeed, the SSA agreed that such work was not substantially gainful and awarded the Veteran an onset date of January 15, 2011 for disability benefits, which were awarded in large part due to his spine disability. 

Although the Veteran did not formally apply for TDIU until March 2014, TDIU is inherent in any claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran filed his claim for an increased rating for his spine in April 2011, so the relevant period for review is from April 2010. In his SSA records, the Veteran stated his date of onset of disability was January 15, 2011. Such date is not in conflict with the record (when considering that his subsequent employment was not substantially gainful) and is the most beneficial to the Veteran. Accordingly, because the Veteran's service-connected disabilities, notably his spine disability, have prevented him from securing and following substantially gainful employment from January 15, 2011, the Board will award the Veteran TDIU from January 15, 2011 to April 14, 2013.


ORDER

The request to reopen the claim of service connection for memory loss and concentration problems is granted. 

The request to reopen the claim of service connection for a sleep disorder is granted. 

The request to reopen the claim of service connection for shortness of breath is denied. 

The request to reopen the claim of service connection for a bilateral eye disability is granted. 

The request to reopen the claim of service connection for fibromyalgia is granted. 

The request to reopen the claim of service connection for CFS is denied. 

Entitlement to an increased rating in excess of 40 percent for chronic low back strain with anterior wedging is denied.

Entitlement to TDIU from January 15, 2011 to April 14, 2013 is granted. 


REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his appeal.

Disorder manifesting in memory loss

The record currently reflects that the Veteran's memory loss has been associated with his service-connected depressive disorder, rather than diagnosed as a separate disability. During his June 2017 Board hearing, he testified that he was told his memory loss was a result of his sleep apnea. Given the Veteran's service in Southwest Asia, there is the question of whether his memory loss is a manifestation of an undiagnosed illness. Remand is necessary to obtain a competent medical opinion as to the source (or possible lack thereof) of the Veteran's memory loss. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).



Sleep disorder

The Veteran states that his sleep apnea is a result of his obesity, which is a result of his inability to exercise due to his service-connected lumbar spine disability. He underwent a VA examination for his sleep apnea in June 2016, wherein the examiner opined that his sleep apnea was not aggravated beyond its natural progression by an in-service event, injury, or illness. While it does not appear that an aggravation opinion was necessary-rather an opinion relating directly to service-the examiner nonetheless opined that an initial sleep study in May 1998 did not reflect sleep apnea. The examiner added that the Veteran's disability was most likely the result of his weight problem because medical literature recognizes obesity as a cause for sleep apnea. 

In a December 2016 addendum, the June 2016 examiner added that it was more likely that his sleep apnea was a result of obesity and not any of his service-connected disabilities; he concluded by saying "if his weight problem is the result of a combination of his service connected depression, hypertension, and chronic low back pain, and his obstructive sleep apnea is directly related to his overweight/obesity, one may argue that [obstructive sleep apnea] was indeed aggravated beyond its natural progression[.]" (emphasis added). This opinion is not definitive and therefore inadequate. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). Remand is necessary for a medical opinion about whether the Veteran's obesity is a result of his service-connected disabilities, and, if so, whether such weight gain resulted in his sleep apnea. 

Bilateral eye disability

As mentioned before, the Veteran now has several diagnoses for his eyes, including hypertensive retinopathy; the Veteran has service-connected hypertension. In June 2017, the Veteran testified that he has dry eyes and would self-medicate during service for this disability. He added that he believed his eye disability is related to his service due to changes in light while going in and out of a ship and from working with fuel (he also added that it may be due to getting sea water or other chemicals in his eyes, but that he does not explicitly remember this occurring). The Veteran has not undergone a VA examination during this appeal period; accordingly, remand is necessary for an examination to answer medical questions presented by the record. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Fibromyalgia

New evidence has been received that indicates that the Veteran may have fibromyalgia. See Vazquez March 2011 private treatment records. Although "unspecified myalgia and myositis" is an approximate synonym for fibromyalgia and not necessarily a diagnosis, remand is necessary for a new VA examination that considers this new evidence and resolves remaining medical questions. Barr v. Nicholson, 21 Vet. App. 303 (2007).

Bilateral upper extremity disability

The Veteran's original claim was for nerve and muscle damage in his arms. See July 2010 Report of General Information (VA Form 21-0820). The record does not reflect a diagnosis, but does reflect complaints of arm numbness without an acute cause that are sometimes accompanied with neck pain. See September 2000 VA treatment records. In October 2011, the Veteran underwent a CT scan for his cervical spine (neck) that demonstrated degenerative anterior osteophytes. See VA treatment records. In June 2017, the Veteran's sister testified that he does not have much arm strength. Although the Veteran underwent a VA peripheral nerves examination for his lower extremities in November 2012, the examiner did not examine or discuss his upper extremities. Accordingly, remand for a VA examination is necessary to determine whether the Veteran has a diagnosable bilateral upper extremity disability, and, if not, whether the symptoms he is experiencing are a result of another disability, such as a neck disability, or a manifestation of an undiagnosed illness. See McLendon, 20 Vet. App. at 81.

Bilateral knees

September 1991 STRs reflect left knee complaints and a diagnosis of left knee contusion. In a July 2008 statement, he stated that he had to run on hard metal aboard ships and climbed ladders. During his June 2017 Board hearing, the Veteran testified that his knee complaints in service continued after service to the present. He underwent a VA examination in November 2009, wherein the examiner opined that the Veteran's current right and left knee disabilities were not caused by or a result of the left knee contusion and knee pain in service. The examiner's statement is conclusory and does not take into consideration the Veteran's statement of continuity of symptoms since service. As a result, remand for a new examination is necessary. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from March 2017 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record.

2. After the above development has been completed, the AOJ should arrange for a VA examination of the Veteran with an appropriate medical professional to determine the nature and likely cause of his memory and concentration loss. The examiner should review the claim file (including this remand) and the examination report should state a review of the file was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

Is the Veteran's memory and concentration loss caused by or otherwise a result of any of his disabilities (service-connected or non-service-connected)? In other words, can the cause of the Veteran's memory loss be determined? Please explain why.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

3. After the development in the first instruction is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his sleep apnea. The examiner should review the claim file (including this remand) and the examination report should state a review of the file was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

(a) Is it at least as likely as not (50% or greater probability) that the Veteran's sleep apnea was either caused or aggravated by the Veteran's service-connected disabilities? Please explain why. The examiner MUST consider the Veteran's statements that he has gained weight because of his service-connected disabilities. If necessary, the examiner should state whether it is at least as likely as not that the Veteran's obesity was caused or aggravated by his service-connected disabilities, specifically his lumbar spine disability. 

In addition, the opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If the sleep apnea is found to have been aggravated by the Veteran's service-connected disabilities, the examiner must specify, to the extent possible, the degree of additional disability resulting from the aggravation, indicating the "baseline" severity of such disability prior to any aggravation and the level of severity existing after the aggravation occurred.

(b) If not caused by or aggravated by a service-connected disability, is it at least as likely as not (50% or greater probability) that the Veteran's sleep apnea was caused by or related to his military service? Please explain why.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

4. After the development in the first instruction is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his eye disabilities. The examiner should review the claim file (including this remand) and the examination report should state a review of the file was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

(a) Please identify, by diagnosis, the Veteran's eye disabilities shown by the record. The diagnoses of retinal pigment epithelial (RPE) detachment and hypertensive retinopathy should be discussed.

(b) For each disability identified, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran's service-connected disabilities, such as his hypertension? Please explain why. In addition, the opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated).

If any disability is found to have been aggravated by the Veteran's service-connected disabilities, the examiner must specify, to the extent possible, the degree of additional disability resulting from the aggravation, indicating the "baseline" severity of such disability prior to any aggravation and the level of severity existing after the aggravation occurred.

(c) If not caused by or aggravated by a service-connected disability, is it at least as likely as not (50% or greater probability) that any disabilities were caused by or related to his military service? Please explain why. The examiner should consider the Veteran's statements regarding exposure to sunlight and fuel, and self-medicating for dry eyes during service.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

5. After the development in the first instruction is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature of his possible fibromyalgia. The examiner should review the claim file (including this remand) and the examination report should state a review of the file was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

Does the Veteran have, or has ever had, fibromyalgia? If so, please state the date of diagnosis. The examiner must discuss the February to September 2011 Vazquez private treatment records diagnosing the Veteran with unspecified myalgia and myositis.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

6. After the development in the first instruction is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his upper extremity bilateral symptoms. The examiner should review the claim file (including this remand) and the examination report should state a review of the file was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: 

(a) Please identify, by diagnosis, the Veteran's bilateral upper extremity disabilities shown by the record. 

(b) If no disability is diagnosed, what is the most likely cause, if any can be determined, of the Veteran's symptoms? Please explain why. The examiner should discuss the Veteran's October 2011 CT scan showing degenerative anterior osteophytes in his cervical spine.

(c) If a disability is diagnosed, is it at least as likely as not (50% or greater probability) that such disability was caused by or related to his military service? Please explain why.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

7. After the development in the first instruction is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his bilateral knee disabilities. The examiner should review the claim file (including this remand) and the examination report should state a review of the file was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: 

(a) Please identify, by diagnosis, the Veteran's bilateral knee disabilities shown by the record.

(b) For each disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was caused by or related to his military service? Please explain why. The examiner should consider the Veteran's statements of running on hard metal and climbing ladders in service, his testimony that he had continuous symptoms since service, and STRs reflecting a left knee contusion.

(c) If not related to his military service, what is the most likely explanation for his knee disabilities? Please explain why.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board 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).




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E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs