Citation Nr: 18160775 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-34 724 DATE: December 28, 2018 ORDER REMANDED Entitlement to service connection for right lower extremity radiculopathy, as secondary to a back disability, is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left leg condition, to include as secondary to a back disability is remanded. Entitlement to service connection for a right leg condition, to include as secondary to a foot disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for arthritis is remanded. Entitlement to service connection for tendonitis is remanded. Entitlement to service connection for headaches, to include as secondary to a back disability, is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a left shoulder disability, to include as secondary to a neck condition, is remanded. Entitlement to service connection for a right shoulder disability, to include as secondary to a neck condition, is remanded. Entitlement to service connection for left upper extremity radiculopathy, to include as secondary to a neck condition, is remanded. Entitlement to service connection for right upper extremity radiculopathy, to include as secondary to a neck condition, is remanded. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine, with lumbar strain is remanded. Entitlement to a compensable initial disability rating for an old healed fracture of the right 3rd metatarsal is remanded. Entitlement to a compensable initial disability rating for erectile dysfunction is remanded. Entitlement to higher staged disability ratings for left lower extremity radiculopathy of the sciatic nerve rated at 10 percent prior to February 9, 2016, 20 percent prior to January 16, 2018, and 30 percent therefrom, is remanded. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy of the femoral nerve, is remanded. Entitlement to a compensable initial disability rating for bilateral hearing loss is remanded. Entitlement to special monthly compensation (SMC) for aid and attendance and housebound is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left leg condition, to include as secondary to a back disability is remanded. 3. Entitlement to service connection for a right leg condition, to include as secondary to a foot disability is remanded. 4. Entitlement to service connection for a left hip disability is remanded. 5. Entitlement to service connection for a right hip disability is remanded. 6. Entitlement to service connection for arthritis is remanded. 7. Entitlement to service connection for tendonitis is remanded. 8. Entitlement to service connection for headaches, to include as secondary to a back disability, is remanded. 9. Entitlement to service connection for a neck condition is remanded. 10. Entitlement to service connection for a left shoulder disability, to include as secondary to a neck condition, is remanded. 11. Entitlement to service connection for a right shoulder disability, to include as secondary to a neck condition, is remanded. 12. Entitlement to service connection for left upper extremity radiculopathy, to include as secondary to a neck condition, is remanded. 13. Entitlement to service connection for right upper extremity radiculopathy, to include as secondary to a neck condition, is remanded. 14. Entitlement to service connection for right lower extremity radiculopathy, as secondary to a back disability, is remanded. As the remand reasons for issues 1-14 are related, the Board will address them together. Specifically, remand is needed to attempt to obtain outstanding records and to conduct VA examinations. Missing Records With regard to the missing records, the Veteran maintains that he had combat service in Iraq. In an October 2017 statement, he wrote that he was “called to combat service in 2005, 2007, and 2009,” with “combat during Operation Enduring Freedom and Operation Iraqi Freedom” for which he was awarded the Combat Infrantryman Badge. At present, the available records do not confirm such service. There is some indication of such service in the available records. For example, there is a July 2005 Readiness and Deployment Checklist identifying a deployment to Iraq. There are also orders from August 2009 for “partial mobilization – Operation Iraqi Freedom.” It is not clear from these entries whether the Veteran was actually deployed. At the same time, there is no obvious reason at present to doubt the Veteran’s credibility. Ultimately, however, only the service department can establish if and when a person was serving on qualifying active service. See 38 C.F.R. § 3.203; Venturella v. Gober, 10 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994). To this extent, the Board acknowledges the RO’s efforts to attempt to obtain his complete service personnel records. However, it is not clear that an exhaustive search has been made for all available service personnel records from all potential records custodians. Accordingly, upon remand, it is imperative that a more extensive search be made. These records are critical to determining whether the Veteran qualifies as a Persian Gulf Veteran under 38 C.F.R. § 3.317. Relatedly, the Veteran wrote in his October 2017 statement that he went before a “US ARMY examination board” in March 2007. It appears he is referring to a Medical Evaluation Board (MEB). Corresponding with his statement, the available service treatment records (STRs) show that he underwent a Pre-Deployment Health Assessment in March 2007. He was found deployable. There is no indication of an MEB proceeding. Nonetheless, the Board again has no reason at this point to doubt his credibility. Thus, his statement indicates that there are further STRs as of yet unaccounted for. Upon remand, all outstanding STRs should be obtained. Finally, the available VA medical records show that there are outstanding private (non-VA) medical records. The VA medical records contain notations indicating that the Veteran underwent several contract evaluations with private health providers. For example, he wrote in an April 2018 secure message to his VA hospital that “I saw the neurosurgeon. He said that my headaches were maybe due to head trauma. He ordered a MRI of my head ... which I did last week.” As another example, an August 2018 entry in the VA medical records indicates that he saw a doctor at a local university hospital for “nerve conduction studies/EMG only.” These records are constructively before the Board and should be obtained. VA Examinations The Board also finds that VA examinations are needed to evaluate the merits of these service connection claims. He has not been provided examinations as to most of the claimed conditions. He did undergo an examination in March 2016 for the knee and legs. The VA examiner found no indication of a current diagnosis corresponding to those locations. However, the Veteran has repeatedly complained of pain, which can be a disability. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Also, for instance, the Veteran contends that his headaches are due to his service-connected back disability. He underwent a VA examination in June 2016. The examiner opined that it was less likely than not that the Veteran’s headaches were proximately due to his service-connected back condition. The examiner did not opine as to whether the Veteran’s headache disability was aggravated, or, permanently worsened beyond the natural progression of the disease, by a service-connected disability. As such, the examination is incomplete. Collectively, the service connection claims are remanded for these reasons. 15. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine, with lumbar strain is remanded. 16. Entitlement to a compensable initial disability rating for an old healed fracture of the right 3rd metatarsal is remanded. 17. Entitlement to a compensable initial disability rating for erectile dysfunction is remanded. 18. Entitlement to higher staged disability ratings for left lower extremity radiculopathy of the sciatic nerve rated at 10 percent prior to February 9, 2016, 20 percent prior to January 16, 2018, and 30 percent therefrom is remanded. 19. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy of the femoral nerve is remanded. 20. Entitlement to a compensable initial disability rating for bilateral hearing loss is remanded. Issues 15-20 are remanded due to the outstanding medical records identified above. For instance, in August 2018 it was noted that he saw a doctor at a local university hospital for “nerve conduction studies/EMG only.” A February 2018 entry similarly refers to private acupuncture. It is not clear which exact disabilities these private treatment records might pertain to, but would likely pertain to some or all of the service-connected disabilities. Relatedly, as it pertains to hearing loss, a January 2018 VA Audiology Note states that a “[c]omplete audiological evaluation conducted with pure tone air/bone and speech testing completed.” The results of that testing are not available. Thus, a remand is needed to obtain the missing records. 21. Entitlement to SMC for aid and attendance and housebound is remanded. The Veteran’s claim for SMC based on the need for aid and attendance or housebound status must be remanded as it remains inextricably intertwined with the other issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: 1. Contact the all potential service department and/or records custodian(s), with a request for copies of all outstanding service treatment records and all service personnel records, to include active duty, Reserve, and National Guard service. 2. Obtain all missing VA treatment records, including the complete results of all audiology testing. 3. Obtain copies of all relevant private (non-VA) treatment records, including records noted in his VA medical records as “scanned” in and records of treatment through VA Choice Program (or otherwise on a contract basis through VA). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any (1) right lower extremity radiculopathy; (2) right knee condition; (3) left leg condition; (4) right leg condition; (5) left hip condition; (6) right hip condition; (7) tendonitis; (8) headaches; (9) neck condition; (10) left shoulder condition; (11) right shoulder condition; (12) left upper extremity radiculopathy; and (13) right upper extremity radiculopathy. The examiner is asked to address each of the following: (a.) The examiner must provide a diagnosis for any conditions found extent. In doing so, the examiner must conduct all necessary testing, unless it can be explained why such testing is not medically necessary. (b.) If a current diagnosis is not present, does the Veteran nevertheless have any functional impairment associated with the affected body part? (c.) Whether a disorder at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to an in-service injury, event, or disease. (d.) Whether the diagnosis (or functional impairment) is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. 5. If the Veteran’s service in the Persian Gulf war is confirm, the RO should also arrange for a Persian Gulf War examination to address the following: (a.) The examiner must provide a diagnosis for any conditions found extent. In doing so, the examiner must conduct all necessary testing, unless it can be explained why such testing is not medically necessary. (b.) If a current diagnosis is not present, the examiner should address whether the Veteran nevertheless has any functional impairment, such as pain or limited motion? (c.) Please provide a medical statement explaining whether the Veteran’s disability pattern is: 1. (1) an undiagnosed illness 1. (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology 2. (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or 3. (4) a disease with a clear and specific etiology and diagnosis (d.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern consistent with options (3) or (4) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. (e.) If no, is it at least as likely as not that any diagnosed disorder—or functional impairment associated—had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service? 6. After completing all actions set forth in paragraphs 1-5, undertake any further action needed as a consequence of that development. Then, if the full benefit sought has not been granted, issue a SSOC and return the case to the Board. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel