Citation Nr: 1804483 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-09 099A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a traumatic brain injury (TBI). 2. Entitlement to service connection for irritable bowel syndrome (IBS), to include as due to an undiagnosed illness. 3. Entitlement to service connection for respiratory disturbances (claimed as sleep apnea), to include as due to an undiagnosed illness. 4. Entitlement to an initial disability rating in excess of 10 percent for lumbar strain. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Veteran represented by: Jeffrey E. Marion, Attorney ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2004 to April 2005 and May 2009 to May 2010, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California and the July 2011 and April 2012 rating decisions of the VA RO in Portland, Oregon. The Board notes that the RO separately adjudicated the issue of a TDIU in the November 2016 Statement of the Case (SOC), which was not perfected on appeal. Nevertheless, as the Veteran has contended that his back pain prevents him from securing or following any substantial gainful occupations, the Board has determined that the issue of a TDIU is also part and parcel to the increased rating claim for service-connected lumbar strain. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the Veteran's claim properly includes consideration of whether a TDIU is warranted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After a thorough review of the record, the Board finds that remand is necessary to ensure due process is followed and there is a complete record upon which to decide the Veteran's claims. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. In pertinent part, the Board notes that before it can properly adjudicate the current appeal, outstanding service treatment records must be obtained. In this regard, the Veteran's 2010 post-deployment health assessment appears to be missing several pages. There also seems to be a very limited service treatment record from the Veteran's actual time overseas, during his May 2009 to May 2010 deployment. Accordingly, remand is necessary for the RO to obtain the Veteran's complete 2010 post-deployment health assessment, and any outstanding service treatment records. Remand is also necessary to obtain a new VA examination regarding service connection for a TBI. In relevant part, the Veteran most recently underwent a VA TBI examination in July 2011. He reported intermittent headaches at a rate of two per week, photophobia all the time, phonophobia during headaches, mild fatigue, mild memory loss, difficulty concentrating, irritability, and decrease in sense of smell. He also reported that his headaches were present since his head injury. The VA examiner diagnosed the Veteran as having a mild TBI in service, without evidence of active residual effects. The examiner also opined that it was less likely that the Veteran's headaches resulted from his closed head injury in service and explained that the complaints of or treatment for headaches was not until one year after his head injury. Significantly, however, it appears the examiner does not appear to have addressed or considered the Veteran's statements regarding the onset of his headaches, and, instead, relied on the absence of medical records corroborating the continuity of his TBI symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination is inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). Accordingly, a new VA examination is required with regard to the Veteran's claim for service connection for a TBI. In addition, the Board acknowledges that the Veteran must be provided a new VA Gulf War examination regarding the service connection claims for IBS and sleep disorder. Significantly, the Veteran was provided a Gulf War examination in March 2012. The examiner noted the Veteran's complaints that he developed gastrointestinal issues upon returning from deployment in Iraq, including increased bowel habits and gassy feeling. However, the examiner found that the Veteran did not meet the criteria for a diagnosis of irritable bowel syndrome. Further, she indicated that there were no signs and/or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. Nevertheless, the examiner's findings above appear to be internally inconsistent. In relevant part, the examiner noted the Veteran's gastrointestinal symptoms (not attributable to a diagnosis) and, at the same time, indicated there were no signs and/or symptoms of an undiagnosed illness. See Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) ('The very essence of an undiagnosed illness is that there is no diagnosis.'); see also Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004) (lay persons are competent to report objective signs of illness). Thus, in light of the inconsistency above, a new VA Gulf War examination is required regarding the Veteran's service connection claim for IBS. The Board finds that a VA Gulf War examination is also required regarding the Veteran's claim for service connection for respiratory disturbances. Chiefly, the record shows evidence of signs/symptoms of a respiratory disorder and active service in the Southwest Asia theater of operations during the Persian Gulf War While the Veteran has not been provided a VA examination with regard to this disorder, the Board notes that such evidence is more than sufficient to meet the threshold requirements for affording the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006) (VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). With regard to the Veteran's increased rating claim for service-connected lumbar strain, the Board emphasizes that the paramount consideration is the Veteran's current level of disability. Thus, when the evidence of record does not reflect the current state of the Veteran's disability, the duty to assist requires that a VA examination be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327 (a); see Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). In the current case, the Veteran last underwent VA examination of his lumbar strain in June 2010. Since then, the record indicates that the symptomatology associated with his lumbar strain has become more severe. See March, September and October 2012 VA Medical Center (VAMC) records. Accordingly, the duty to assist necessitates that this claim be remanded to schedule a new VA examination. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required. The Board observes that although the Veteran is currently incarcerated, VA has special procedures for handling the scheduling of VA examinations for incarcerated Veterans. Specifically, the duty to assist incarcerated Veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement; as such, individuals are entitled to the same care and consideration given to their fellow non-incarcerated Veterans. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility. See 38 U.S.C. § 5711 (2012). Nevertheless, VA's duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated Veterans. The manual calls for the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether a Veteran should be escorted to a VA medical facility for examination by VHA personnel. If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. See M21-1, Part III.iv.3.F.2.d. VBA Fast Letter 11-22 (Sept. 8, 2011) outlines how the compensation clinics must document that they have made multiple attempts and exhausted all possible avenues for obtaining access to the incarcerated Veteran for the examination. Accordingly, the case is REMANDED for the following actions: 1. Undertake additional appropriate action to obtain the Veteran's complete service treatment records for his period of active service from May 2009 to May 2010, to include a complete copy of the Veteran's 2010 post-deployment health assessment. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain any outstanding records of pertinent medical treatment from VA, private health care providers, or Snake River Correctional Institute (location of incarceration). With the Veteran's assistance, obtain copies of any pertinent records and add them to the claims file. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2017). 3. Because the Veteran is incarcerated, any attempt to schedule the Veteran for a VA examination should be done in accordance with the procedures outlined above and found in M21-1, Part III.iv.3.F.2.d and VBA Fast Letter 11-22 (Sept. 8, 2011). 4. Following the records development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's claimed TBI. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) Based upon the examination results and review of the record, the examiner should identify the existence of any TBI present during the course of the claim. b) For any diagnosed TBI the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any TBI had its onset during active service or is otherwise related to active service. In rendering the opinion above, the examiner must specifically consider and discuss the Veteran's statements regarding the onset of headaches since his in-service fall. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an 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. 5. Following the records development above, obtain a VA Gulf War examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's IBS. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to address the following: a) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's claimed gastrointestinal disorder is due to a 1) diagnosable chronic multisymptom illness with a partially explained etiology, or 2) a disease with a clear and specific etiology and diagnosis? b) If the examiner determines that the Veteran's disability pattern is either a diagnosable chronic multisymptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis, then the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the diagnosed gastrointestinal disorder was incurred in service, to include as a result of his exposure to environmental hazards while serving in Southwest Asia. c) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's gastrointestinal disorder is a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders? A medically unexplained chronic multisymptom illness may include signs or symptoms such as fatigue, skin signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, upper or lower respiratory systems signs or symptoms, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, and abnormal weight loss. d) If there are any gastrointestinal symptoms not addressed by any diagnoses, is at least as likely as not (a 50 percent or greater probability) that the symptoms are a qualifying chronic disability or an undiagnosed illness? Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an 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. 6. Following the records development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's respiratory disturbance. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to address the following: a) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's respiratory disturbance is due to a 1) diagnosable chronic multisymptom illness with a partially explained etiology, or 2) a disease with a clear and specific etiology and diagnosis? b) If the examiner determines that the Veteran's disability pattern is either a diagnosable chronic multisymptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis, then the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the diagnosed respiratory disorder was incurred in service, to include as a result of his exposure to environmental hazards while serving in Southwest Asia. c) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's respiratory disturbance is a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders? A medically unexplained chronic multisymptom illness may include signs or symptoms such as fatigue, skin signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, upper or lower respiratory systems signs or symptoms, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, and abnormal weight loss. d) If there are any respiratory disturbance symptoms not addressed by any diagnoses, is at least as likely as not (a 50 percent or greater probability) that the symptoms are a qualifying chronic disability or an undiagnosed illness? Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an 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. 7. Following the records development above, obtain a VA examination from an appropriate examiner to determine the current severity of the Veteran's service-connected lumbar strain. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to fully describe the current severity of the Veteran's lumbar strain, including all objective manifestations. a) To be compliant with Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the examiner must address range of motion loss specifically due to pain and any functional loss during flare-ups. The examiner is to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. These determinations should, if feasible, be portrayed in terms of degrees of additional range of motion loss due to pain on use or during flare-ups. b) To comply with Correia v. McDonald, 28 Vet. App. 158, 170 (2016), testing of the range of motion must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges. If such are not applicable, the examiner should state such along with an explanation. c) If it is not feasible to provide the degrees in which there is an additional loss in range of motion during flare-ups or repeated use over time or any range of motion testing, then the clinician must provide an adequate explanation as to why. d) The examiner should also comment on the functional impairment caused by the Veteran's service-connected lumbar strain. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an 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. 8. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any of the claims remain denied, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. 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. ISHIZAWAR 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).