Citation Nr: 18158123 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 18-05 909 DATE: December 14, 2018 REMANDED The claim of entitlement to an initial rating greater than 70 percent for posttraumatic stress disorder (PTSD) is remanded. The claim of entitlement to an increased rating greater than 20 percent for degenerative disc disease (DDD), lumbar spine, is remanded. The claim of entitlement to an initial rating greater than 20 percent for sciatic radiculopathy, right lower extremity, is remanded. The claim of entitlement to an increased (compensable) rating for erectile dysfunction (ED) is remanded. The claim of entitlement to service connection for bronchial asthma is remanded. The claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1985 to April 1989, from July 2009 to June 2010, from October 2010 to September 2013, and from January 2014 to September 2014. This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2016 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO), in which RO granted service connection for PTSD and assigned an initial 70 percent rating, and radiculopathy of the right lower extremity and assigned an initial 20 percent rating. The RO also increased the rating for the lumbar spine disability to 20 percent disability and denied a compensable rating for ED and service connection for COPD and bronchial asthma. A notice of disagreement (NOD) was received in November 2016 as to the initial ratings assigned for PTSD and radiculopathy and the denials of higher ratings and service connection. A statement of the case (SOC) was issued in January 2018, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month. In an August 2018 statement, the Veteran requested a Board hearing before a Veterans Law Judge. Subsequently, in a November 2018 submission, the Veteran withdrew his request for a hearing and requested that the Board decide the appeal based on the evidence of record. Also, this appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action in this appeal is warranted. Regarding the claim for a higher initial rating for PTSD, after the issuance of the January 2018 SOC, but before the appeal was certified to Board in May 2018, the Veteran was afforded a VA examination of his PTSD in March 2018, and a copy of the examination report was associated with the claims file. However, as the January 2018 SOC reflects the AOJ’s last adjudication of the claims, the claims file does not reflect that the AOJ has considered this evidence. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See Disabled American Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. See 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case (SSOC) must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue(s) on appeal. See 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement. Under these circumstances, the Board has no alternative but to remand this matter for AOJ consideration of the additional evidence received, in the first instance, and to issue a supplemental SOC reflecting such consideration. See 38 C.F.R. §§ 19.31, 19.37. Regarding the claim for higher rating for the lumbar spine disability, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing, “wherever possible,” for pain on both active and passive motion, and in weight bearing and non-weight bearing (as appropriate), and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia, 28 Vet. App. at 168-70. The Veteran was last afforded a VA spine examination in July 2016. On that examination, range of motion testing on passive motion and on weight bearing and non-weight bearing was not accomplished. Such information, as well as other information responsive to 38 C.F.R. § 4.59 and Correia, is needed to properly evaluate the lumbar spine disability. Hence, a remand of this matter for further examination is warranted. As regards the claims for increased ratings for lower right extremity radiculopathy and ED, as those disabilities are characterized neurogenic manifestations related to the Veteran’s service-connected lumbar spine disability, the requested examination will yield evidence relating to the claims for increased ratings for right lower extremity radiculopathy and ED, those claims are being remanded, as well. Finally, regarding the service connection claims for COPD and bronchial asthma, the Veteran was afforded a VA respiratory examination in July 2016. At that time, the examiner concluded that there was no pathology to render a diagnosis of either COPD or bronchial asthma. However, under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective October 17, 2016, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2021 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia Theater of Operations). See 77 Fed. Reg. 63225. Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a), (b). The Board notes that Congress revised 38 U.S.C. § 1117, effective March 1, 2002. In the revised statute, the term “chronic disability” was changed to “qualifying chronic disability,” and the definition of “qualifying chronic disability” was expanded to include (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. See 38 C.F.R. § 3.317(a)(2). Because the Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, she is a Persian Gulf veteran within the meaning of the applicable statute and regulation. In light of the above, the Veteran should be afforded a VA Gulf War examination to determine whether her complaints of respiratory problems can be attributed to clinical diagnoses and, if not, whether the respiratory problems represent an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran’s service in Southwest Asia or a medically unexplained chronic multi-symptom illness which is defined by a cluster of signs or symptoms, consistent with 38 C.F.R. § 3.317. The Veteran is hereby advised that, failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s). See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to arranging for the Veteran to undergo further examinations, to ensure that all dur process requirements are met, and the record is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Adjudication of each higher rating claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found, is appropriate. The matters are hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any claim(s) on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 2. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination of his lumbar spine by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented history and lay assertions. The examiner should conduct range of motion testing of the lumbar spine (expressed in degrees) on both active motion and passive motion and in both weight bearing and non-weight bearing (as appropriate). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. Also, if the examination is not conducted during a flare-up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran has any ankylosis of the thoracolumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. Additionally. the examiner should identify and comment on the existence, frequency, or extent of, as appropriate, all neurological manifestations of the Veteran’s lumbar spine disability. The examiner should provide an assessment of each such manifestation as mild, moderate, moderately severe, or severe. Also, the examiner should render findings particularly responsive to the criteria for rating intervertebral disk syndrome (IVDS)—specifically, comment as to the existence and frequency of any incapacitating episodes. If the Veteran has incapacitating episodes associated with his thoracolumbar spine disability, the examiner should specify whether, over the past 12 months, such episodes have had a total duration of (a) at least one week, but less than 2 weeks; (b) at least 2 weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA Gulf War examination, by an appropriate physician, at a VA medical facility. This examination should conform to the guidelines for conducting Gulf War examinations set forth in the Under Secretary for Health's Information Letter, dated April 28, 1998 (IL 10-98- 010), at a VA medical facility. As indicated below, additional specialist examination(s) should be conducted as needed. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented history and lay assertions. (a) The primary Gulf War examiner should note and detail all reported symptoms of respiratory problems. The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all symptoms of respiratory problems and state what precipitates and what relieves them. (b) The examiner should list all diagnosed disabilities that have been present since approximately June 2016 and state which symptoms of respiratory problems are associated with each disability. If all symptoms of headaches are associated with diagnosed disability(ies), additional specialist examination(s) for diagnostic purposes is/are not needed. (c) If any respiratory problems that have been present since approximately June 2016 is related to a distinct and identifiable disability, then, with respect to each such disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the disability (a) had its onset during service; or (b) is otherwise medically-related to the Veteran’s service. (d) If any respiratory problems that have been present since approximately June 2016 have not been determined to be associated with a known clinical diagnosis, further specialist examination(s) will be required to address these findings, and should be ordered by the primary examiner. (e) The primary examiner should provide the specialist with all examination reports and test results, specify the relevant symptoms that have not been attributed to a known clinical diagnosis and request that the specialist determine which of these, if any, can be attributed to a known clinical diagnosis and which, if any, cannot be attributed to a known clinical diagnosis. (f) If any respiratory problems that have been present since approximately June 2016 are not due to a distinct and identifiable disability, the specialist should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the headaches represents (a) an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran’s service in Southwest Asia or (b) a medically unexplained chronic multi-symptom illness which is defined by a cluster of signs or symptoms. If so, the examiner should also describe the extent to which the illness has manifested. In addressing the above, the examiner(s) must consider and discuss all relevant medical and other objective evidence of record and all lay assertions, to include the Veteran’s assertions as to the nature, onset, and continuity of relevant symptoms. Notably, the absence of documented evidence of treatment for particular symptoms or disability in service should not, alone, serve as the sole basis for a negative opinion. In this regard, the examiner(s) is/are advised that the Veteran is competent to report his symptoms and history, and that his assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner(s) should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication, including the report of the March 2018 VA mental health examination) and legal authority (to include, for each higher rating claim, consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel