Citation Nr: 18159124 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 09-42 920 DATE: December 18, 2018 ORDER Entitlement to service connection for food poisoning is dismissed. REMANDED Entitlement to a rating in excess of 20 percent disabling for lumbar spine disability is remanded. Entitlement to service connection, to include on a secondary basis, for bladder condition is remanded. Entitlement to service connection, to include on a secondary basis, for bilateral upper extremity (BUE) condition, to include hand, arm and shoulder, is remanded. Entitlement to service connection, to include on a secondary basis, for bilateral lower extremity (BLE) condition, to include knee, foot and ankle, is remanded. Entitlement to service connection for gunshot wound (GSW) to the left leg, claimed as secondary to bilateral hand condition, is remanded. Entitlement to service connection for a respiratory condition, to include asthma, is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection, to include on a secondary basis, for an acquired psychiatric disorder is remanded. Entitlement to service connection for memory loss. Entitlement to service connection, to include on a secondary basis, for a sleep disorder, to include obstructive sleep apnea (OSA), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT At a March 2018 Board hearing, the Veteran stated that he was withdrawing his service connection claim for food poisoning. CONCLUSION OF LAW The criteria for a withdrawal of the Veteran’s substantive appeal as to his claim of entitlement to service connection for food poisoning have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from October 1986 to April 1987. He had active duty service from March 1989 to August 1990 and from August 2002 to July 2003, with additional service in the Army National Guard. The Veteran’s DD214 for his period of service from March 1989 to August 1990 shows he received an other than honorable discharge. This matter is before the Board of Veterans’ Appeals (Board) on appeal from November 2008 (increased rating claim) and March 2010 (service connection claims) rating decisions by a Department of Veterans Affairs Regional Office (RO). In August 2017, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a Board hearing. A Travel Board hearing was held in March 2018 and a copy of the transcript has been associated with the claims file. Withdraw of Appeal A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(c). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.204(b)(1). A March 2010 rating decision denied service connection for food poisoning and the Veteran perfected his appeal of that decision. During a March 2018 Board hearing, the Veteran asserted that he was withdrawing his service connection claim for food poisoning. The Board accordingly finds that the Veteran’s request to withdraw his service connection claim for food poisoning qualifies as a valid withdrawal. See 38 C.F.R. § 20.204. Accordingly, there remain no allegations of error of fact or law for appellate consideration as to that issue and it is dismissed. REASONS FOR REMAND The Board additionally notes that the claims file included an April 2009 Social Security Administration (SSA) decision that found the Veteran unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment, or combination of impairments. The decision noted the following conditions: degenerative disc disease, depression, schizophrenia, somatization disorder, depressive personality disorder, schizoid personality disorder and paranoid personality disorder. However, apart from the decision, the claims file does not contain any other SSA record. Where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). Since the SSA decision explicitly notes the Veteran’s lumbar spine as well as various psychiatric disorders, the Board finds that attempts to obtain and associate with the claims file any outstanding SSA records should be made. Id. at 1323; see also Baker v. West, 11 Vet. App. 163, 169 (1998). 1. Increased Rating - Lumbar Spine Initially, the Board notes that the claims file shows the Veteran receives treatment as his local VA medical center for his lumbar spine disability. However, the most recent VA medical record associated with the claims file is dated April 2015. Accordingly, in order to properly adjudicate this issue on appeal, updated VA treatment records should be obtained. The Board further notes that the Veteran last underwent a VA examination in July 2013. The Veteran denied any flare-ups. The examiner noted that the lumbar spine disability was not manifested by IVDS. At a March 2018 Board hearing, the Veteran asserted that his lumbar spine condition had worsened and that he needed to get another MRI study. He also testified that the ROM in his back was not good; for example, he stated that he was unable to bend down to tie his shoes. In addition, the Veteran testified that he had been prescribed bed rest by a doctor. Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Given the Veteran’s assertion that his lumbar spine disability had worsened since his last VA examination, including being prescribed bed rest by a doctor, a remand is warranted for a new VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 2. Service Connection – Bladder/Bowel Condition The Veteran asserts entitlement to service connection for a bladder and bowel disorder. Specifically, the Veteran asserts that he developed a bladder and bowel disorder secondary to his service-connected lumbar spine disability. At a July 2008 VA examination, the Veteran denied any bowel or bladder incontinence. However, an October 2009 private medical record shows the Veteran reported that he had lost control of his bladder over the past month which had worsened the past two days. The record also noted a diagnosis for incontinence of the bowel and bladder. A November 2009 urodynamics evaluation revealed urinary retention and incomplete bladder emptying. In January 2010, the Veteran reported that his lumbar spine disability had “messed up his bladder.” A July 2013 VA examination shows the Veteran reported experiencing urinary incontinence requiring the use of absorbent pads on his bed. Finally, at a March 2018 Board hearing, the Veteran testified that his bladder and bowel disorder was secondary to his lumbar spine disability. The Veteran further testified that a doctor had told him the conditions were etiologically related. The evidence of record clearly shows diagnoses for bowel and bladder conditions, including a VA examination report noting that the Veteran reported urinary incontinence symptoms. However, no nexus opinion or statement as to etiology has been provided. As such, a remand is necessary to determine the nature and etiology of any diagnosed bowel or bladder condition. 3. Service Connection - BUE, BLE, GSW The Veteran asserts entitlement to service connection for various conditions affecting his BUE and BLE, including his hands, arms, shoulders, legs, knees, ankles and feet. Specifically, the Veteran asserts that the above conditions are either directly related to service or secondary to his service-connected lumbar spine disability. The record includes a June 1989 STR showing the Veteran complained of left forearm pain due to hitting his arm on a sledge hammer that had bounced off a stake he was driving into the ground. The clinician noted some tingling affecting the left index finger. Additionally, in March 1990, the Veteran complained of bilateral ankle pain. A December 2002 STR noted complaints of pain across the Veteran’s back and in both elbows. The Veteran further reported that his right arm kept going numb. The clinician noted repetitive heavy lifting and overhead work. The Veteran was assessed with right shoulder impingement syndrome and bilateral elbow overuse, possibility tendonitis. A May 2003 post-deployment health assessment shows the Veteran reported back pain and numbness and tingling in his hands and feet. In June 2003, the Veteran reported lower back pain that radiated down his leg. A May 2008 private emergency medical record shows the Veteran was treated for acute neck pain with radiculopathy and back pain following a lifting injury at work. The Veteran was noted to have BUE pain and BLE pain and weakness. The physician noted similar symptomatology many times in the past. In June 2008, the Veteran reported low back pain radiating down his legs and up his shoulders. His legs were reported as tired and week. In addition, the Veteran reported burning in his bilateral patella with a burning pain reported in his bilateral inner foot with numbness. The Veteran also reported low back pain that had been moderate to severe until 2004, with pain that had progressed across his body thereafter. A December 2008 EMG study revealed a diagnosis for bilateral carpal tunnel syndrome, moderate on the right and mild on the left. The physician also noted mild disfunction of the L5-S1 nerve root versus early peripheral neuropathy, although the abnormalities of the foot were also noted as possibly due to cold feet. The physician further noted that the Veteran was in pain and a complete evaluation could not be conducted. The Veteran underwent a VA examination November 2009. The examiner noted that an evaluation by the Veteran’s private physician documented that the current spine conditions were related to a May 2008 on-the-job injury which was the subject of a workman’s compensation claim. The examiner further noted that the current lumbar spine, bilateral leg and foot conditions were directly related to the May 2008 injury, that the Veteran knew he was filing a false service connection claim. The examiner further noted that BUE and cervical spine complaints were unrelated to any lumbar spine condition. The Board finds the November 2009 VA examination inadequate. First, while the examiner noted a work-related spinal injury, the STRs clearly show complaints affecting the Veteran’s BUE and BLE many years prior to that injury. In this regard, the examiner only focused on the May 2008 injury as the only pertinent medical evidence of record. Second, the examiner did not provide a medical opinion as to whether the Veteran’s asserted BUE and BLE conditions were aggravated by his service-connected lumbar spine disability. Given the deficiencies noted above, a new VA examination is necessary to determine the nature and etiology of any diagnosed BUE or BLE condition, to include whether such condition was directly related to service or secondary, to include on an aggravation basis, to the Veteran’s service-connected lumbar spine disability. Finally, the Board notes that the Veteran has claimed service connection for a GSW which he asserts was caused by a right-hand disability. Therefore, as the two conditions on appeal and intertwined, the service connection claim for GSW remains on appeal. 4. Service Connection - Respiratory Condition The Veteran asserts entitlement to service connection for a respiratory condition, claimed as asthma. A review of the claims file shows that in December 2002, the Veteran was placed on physical profile for an allergic reaction to prolonged exposure to dust and exercise induced bronchospasm. The Veteran was prescribed albuterol and fluticasone. A June 2003 record from the William Beaumont Army medical center noted the Veteran developed breathing problems which were incurred in the line of duty. The Veteran underwent a VA general examination in February 2011. The Veteran reported that during service he was diagnosed with asthma while stationed in the desert and that he had to wear a face-mask due to dust. He also reported that he currently used albuterol as needed, although he denied any current chest tightness or wheezing. The examiner noted normal respiratory findings and no cough or signs of shortness of breath or chest pain were noted. Despite the negative examination results, the examiner noted a diagnosis for asthma. However, the examiner did not provide an etiological opinion. Accordingly, as the record shows in-service treatment for a respiratory condition and a current diagnosis, a VA examination is necessary to determine the nature and etiology of any diagnosed respiratory condition. 5. Service Connection – Hepatitis C The Veteran asserts entitlement to service connection for hepatitis C. A November 1988 Navy enlistment examination shows the Veteran denied having hepatitis and the report noted a non-reactive serology test. Additionally, an August 1990 separation examination noted a non-reactive serology test. In August 2000, a VA dental record noted a history for hepatitis of unknown status. Thereafter, a November 2004 liver biopsy revealed chronic hepatitis. Additionally, another November 2004 medical record shows a diagnostic test revealing the presence of hepatitis C virus, and in February 2005 the Veteran was diagnosed with chronic active hepatitic C. The Veteran underwent a VA general examination in February 2011. The Veteran reported that prior to his deployment in 2003 he had no abnormality in his lab work, but was diagnosed with a positive hepatis C virus upon his return in 2003/2004. The examiner diagnosed the Veteran with hepatitis C. However, no etiological opinion was provided. At a March 2018 Board hearing, the Veteran testified that he developed hepatitic C due to inoculations received during service. Specifically, the Veteran asserted that he was inoculated with an unclean needle. Accordingly, as the evidence of record shows a diagnosis for hepatitis C, which the Veteran relates to inoculations received during service, the Board finds that a VA examination is necessary to determine the nature and etiology of the condition. 6. Service Connection - Acquired Psychiatric Disorder, Memory Loss The Veteran asserts entitlement to service connection for an acquired psychiatric disorder. Specifically, the Veteran asserts that he developed a psychiatric disorder while stationed at White Sands Missile Range when he and his family were reportedly attacked by a civilian employee and the employee’s family. The Veteran asserts that the civilian employee was dealing narcotics on the base. The attacks reportedly occurred between 2003 and 2004. The record also shows that the Veteran reported multiple trips to the local VA medical center (alternatively referred to as Blessed Hospital and Ft. Bliss Medical Center) as a result of the attacks. The Veteran also reported that the civilian employee had attacked the police and was eventually arrested. See March 2018 Board Hearing Transcript. While the claims file includes police reports of altercations between the Veteran’s children and other youth, as well as damage to the Veteran’s vehicle, they do not contain any arrest record that would corroborate the Veteran’s assertions. Additionally, while the record contains a December 2002 medical record showing the Veteran’s son was treated for pain to the back of his head due to being pushed into a construction truck, that record is from William Beaumont Medical Center. As such, efforts should be made to obtain any arrest records as detailed by the Veteran as well as any outstanding treatment records. In addition, to the Veteran’s reported in-service stressors, the Board also notes that the STRs show he was diagnosed with various psychiatric disorders prior to his discharge in August 1990, including adjustment disorder with mixed disturbance of emotions and conduct, alcohol abuse, and occupational problems and personality disorder. Further, a June 2003 STR shows the Veteran was noted to have had a transient period of mild depression associated with family problems which had resolved. Finally, post-service treatment records include a July 2008 hospital emergency record showing treatment for acute mental status change noted as chronic back pain and anxiety. Another July 2008 medical record noted the Veteran had developed an acute exacerbation of his low back pain and an increase in his anxiety. A July 2008 VA medical record shows the Veteran reported having suicidal ideations in the past while he was in severe pain. In December 2009, a VA physician noted depression due to several stressors including chronic pain. Accordingly, the record raises a secondary service connection claim to include whether the Veteran has an acquired psychiatric disorder that is caused or aggravated by his service-connected lumbar spine disability. The Veteran underwent a VA psychiatric examination in October 2009. The Veteran reported that he began treatment for a psychiatric disorder approximately 1-year prior. He was currently being treated with medication. Other symptoms reported by the Veteran included anger, being easily frustrated with people, sleep deprivation, headaches, depression and visual hallucinations. The examiner diagnosed the Veteran with dysthymic disorder and assigned a GAF score of 55. No etiological opinion was provided. In a January 2010 addendum opinion, the examiner opined that the Veteran’s dysthymic disorder was “not as least as likely as not (the probability is less than 50%)” etiologically related to the service-connected lumbar spine disability. No rationale for this opinion was provided. The Board finds the VA examination and addendum opinion inadequate. First, while the examiner provided an etiological opinion as to secondary service connection, to nexus opinion was provided as to direct service connection. Second, as noted above, the Veteran’s addendum opinion included no rationale. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, a medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). Accordingly, a new VA examination is required to adequately adjudicate this issue on appeal. 7. Service Connection – Sleep Disorder, to include OSA The Veteran asserts entitlement to service connection for a sleep disorder which he asserts is secondary to his back pain. The record shows the Veteran was diagnosed with OSA during an October 2009 sleep study. The Board notes that sleep deprivation was also noted as a symptom during his October 2009 VA psychiatric examination. Additionally, the Board notes that the record contains a January 2014 VA mental health treatment record showing sleeping about once every two days during his March 2018 Board hearing. The Veteran underwent a VA general examination in February 2011. While the examiner noted a diagnosis for OSA, no nexus opinion was provided. Accordingly, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran’s diagnosed sleep disorder, to include whether his OSA was caused or aggravated by a service-connected disability. 8. TDIU Finally, entitlement to a TDIU is inextricably intertwined with the Veteran’s claims on appeal. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities and all private treatment records from the Veteran not already associated with the file, to include medical records pertaining to treatment at or near Fort Bliss and Blessed Hospital in 2003/2004, and VA treatment records dating since April 2015. 2. Make arrangements to obtain police records from White Sands Missile Range for arrests involving the individual identified by the Veteran. See Hearing Transcript p. 45. If the Veteran indicates the existence of any alternative sources of evidence or the AOJ determines that such sources may exist, request any potentially relevant documents from the appropriate source(s). All correspondence related to additional development must be clearly documented in the file. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 3. Identify and obtain any outstanding SSA records that are not already associated with the claims file. If these records are unavailable, a written statement to this effect must also be incorporated into the claims file. 4. Then, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected lumbar spine disability. The examiner should review pertinent documents in the Veteran’s claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct range of motion studies and assess any functional impairment due to such factors as pain and weakness, and express this functional impairment in terms of further loss of motion. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. 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 explain why that is so. In addition, the examiner should provide the following: (a) Does the Veteran have a bladder or bowel disorder associated with his service-connected lumbar spine disability? Please explain why or why not. (b) Does the Veteran have radiculopathy or sciatica associated with his service-connected lumbar spine disability? Please explain why or why not. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 5. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed bilateral upper or lower extremity condition. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral upper or lower extremity condition that is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed bilateral upper or lower extremity condition was caused by the Veteran’s service-connected lumbar spine disability? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed bilateral upper or lower extremity condition was permanently worsened beyond normal progression (aggravated) by the Veteran’s service-connected lumbar spine disability? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. (d) If, and only if, the Veteran is found to have a BUE condition that is etiologically related to service or a service-connected disability, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s self-inflicted gunshot wound to the left leg was caused by such disability. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 6. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed respiratory condition. The examiner should provide the following opinions: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed respiratory condition is etiologically related to his period of service? The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 7. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his diagnosed hepatitis C. The examiner should provide the following opinions: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed hepatitis C is etiologically related to his period of service, to include as due to inoculations received during service? The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 8. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed psychiatric disorder. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed psychiatric disorder that is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder was caused by a service-connected disability, to include lumbar spine disability? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder was permanently worsened beyond normal progression (aggravated) by a service-connected disability, to include lumbar spine disability? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 9. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any disability manifested by memory loss. The examiner should provide the following opinions: Is it at least as likely as not (50 percent or greater probability) that any diagnosed memory loss disorder is etiologically related to his period of service? Please explain why or why not. 10. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed sleep disorder, to include OSA. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed sleep disorder, to include OSA is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder, to include OSA was caused by a service-connected disability, to include lumbar spine disability? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder, to include OSA was permanently worsened beyond normal progression (aggravated) by a service-connected disability, to include lumbar spine disability? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 11. Thereafter, the RO should readjudicate the claims on appeal, to include the claim for a TDIU. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel