Citation Nr: 1806397	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-22 980	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for a skin condition, to include as secondary to immunodeficiency virus (HIV).

2.  Entitlement to service connection for an acquired psychiatric disorder.

3.  Entitlement to service connection for an eye condition.

4.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for HIV.

5.  Entitlement to service connection for HIV.

6.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for lower extremity neuropathy.

7.  Entitlement to service connection for lower extremity neuropathy, to include as secondary to a low back condition or flat feet.

8.  Entitlement to service connection for varicose veins of the left leg.

9.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral flat feet.

10.  Entitlement to service connection for bilateral flat feet.

11.  Entitlement to service connection for tuberculosis.

12.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck condition.

13.  Entitlement to service connection for neck condition, to include as secondary to a service-connected right shoulder disability.

14.  Entitlement to service connection for a low back condition, to include as secondary to flat feet or a service-connected right shoulder disability.

15.  Entitlement to service connection for a throat condition.

16.  Entitlement to an initial rating in excess of 10 percent for a right shoulder disability.

17.  Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1975 to November 1978.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been prepared and associated with the claims file.

The Board notes that the issues of entitlement to service connection for flat feet and a neck condition were previously denied in a March 2005 rating decision.  The Board acknowledges that the RO reopened these issues in the August 2010 rating decision and adjudicated them on the merits.  Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen these issues.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996).  The issues have been recharacterized accordingly.

The issues of entitlement to service connection for a skin condition, a psychiatric disorder, an eye condition, HIV, neuropathy, varicose veins, flat foot, tuberculosis, a neck condition, a low back condition, and a throat condition; entitlement to an increased rating for a right shoulder disability; and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In a March 2005 rating decision, the RO denied entitlement to service connection for HIV, lower extremity neuropathy, flat feet, and a neck condition.  No timely appeal was received by VA, nor was any new and material evidence submitted within the applicable appeal period.

2.  Additional evidence received since the RO's March 2005 rating decision is new to the record and relates unestablished facts necessary to substantiate the merits of the claim of entitlement to service connection for HIV, lower extremity neuropathy, flat feet, and a neck condition and raises a reasonable possibility of substantiating the claim of entitlement to service connection for HIV, lower extremity neuropathy, flat feet, and a neck condition.


CONCLUSIONS OF LAW

1.  The March 2005 rating decision is final as to the claim of entitlement to service connection for HIV, lower extremity neuropathy, flat feet, and a neck condition.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017).

2.  New and material evidence has been presented to reopen the claim of entitlement to service connection for HIV.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3.  New and material evidence has been presented to reopen the claim of entitlement to service connection for lower extremity neuropathy.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

4.  New and material evidence has been presented to reopen the claim of entitlement to service connection for flat feet.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

5.  New and material evidence has been presented to reopen the claim of entitlement to service connection for a neck condition.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

As the Board's decision to reopen the claim of entitlement to service connection for HIV, lower extremity neuropathy, flat feet, and a neck condition is completely favorable, no further action with respect to those issues is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49747(1992).

II. New and Material Evidence

In general, unappealed RO rating decisions are final.  See 38 U.S.C. § 7104(b), 7105(c); 38 C.F.R. § 20.1103.  

If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).  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).  

VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim.  In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim.

A. HIV

The Veteran initially filed a claim of entitlement to service connection for HIV in September 2004.  In a March 2005 rating decision, the RO denied the claim on the basis that the evidence failed to show that HIV was incurred in or related to service.  The Veteran was notified of the decision and his appellate rights by a letter dated in April 2005.  The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision.  The March 2005 rating decision therefore became final.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.

Relevant evidence of record at the time of the RO's March 2005 rating decision included the Veteran's service treatment records and VA and private treatment records.  Based on this evidence, the RO concluded that the Veteran's HIV was not related to service and denied the Veteran's claim for service connection.  

In December 2009, the Veteran requested that his claim of entitlement to service connection for HIV be reopened.  Relevant additional evidence received since the RO's March 2005 rating decision includes the Veteran's testimony regarding his in-service and post-service risk factors for HIV.  This evidence was not previously on file at the time of the RO's March 2005 decision; thus, it is new.  Additionally, as it addresses whether the Veteran's HIV may have been incurred in service, it pertains to an unestablished fact necessary to substantiate the claim of service connection for HIV, particularly when considering the low threshold for reopening a claim set forth in Shade.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Moreover, the Veteran's hearing testimony regarding the receipt of Social Security Administration (SSA) benefits for HIV triggers the Secretary's duty to assist.  Accordingly, the claim of entitlement to service connection for HIV is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  The underlying claim is addressed further in the Remand section below.

B. Lower Extremity Neuropathy

The Veteran initially filed a claim of entitlement to service connection for neuropathy in September 2004.  In a March 2005 rating decision, the RO denied the claim on the basis that the evidence failed to show that lower extremity neuropathy was incurred in or related to service.  The Veteran was notified of the decision and his appellate rights by a letter dated in April 2005.  The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision.  The March 2005 rating decision therefore became final.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.

Relevant evidence of record at the time of the RO's March 2005 rating decision included the Veteran's service treatment records and VA and private treatment records.  Based on this evidence, the RO concluded that the Veteran's lower extremity neuropathy was not related to service and denied the Veteran's claim for service connection.  

In December 2009, the Veteran requested that his claim of entitlement to service connection for lower extremity neuropathy be reopened.  Relevant additional evidence received since the RO's March 2005 rating decision includes additional VA treatment records and the Veteran's assertions that he experienced symptoms of neuropathy in connection with symptoms associated with his low back condition and bilateral flat feet.  These statements are presumed credible for the purposes of evaluating the Veteran's request to reopen his claim for service connection.  Justus, supra.  This evidence was not previously on file at the time of the RO's March 2005 decision; thus, it is new.  Furthermore, this evidence is material because it raises an alternative theory of entitlement, i.e., that the Veteran's lower extremity neuropathy is caused or aggravated by a low back condition or bilateral flat feet.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Accordingly, the claim of entitlement to service connection for lower extremity neuropathy is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  The underlying claim is addressed further in the Remand section below.

C. Bilateral Flat Feet

The Veteran initially filed a claim of entitlement to service connection for flat feet in September 2004.  In a March 2005 rating decision, the RO denied the claim on the basis that the evidence failed to show that flat feet was incurred in or related to service.  The Veteran was notified of the decision and his appellate rights by a letter dated in April 2005.  The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision.  The March 2005 rating decision therefore became final.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.

Relevant evidence of record at the time of the RO's March 2005 rating decision included the Veteran's service treatment records and VA and private treatment records.  Based on this evidence, the RO concluded that the Veteran's flat feet were not related to service and denied the Veteran's claim for service connection.  

In October 2009, the Veteran requested that his claim of entitlement to service connection for flat feet be reopened.  Relevant additional evidence received since the RO's March 2005 rating decision includes the Veteran's assertions regarding his symptoms in service due to log drills and excessive marching.  This evidence was not previously on file at the time of the RO's March 2005 decision; thus, it is new.  Additionally, as it addresses whether the Veteran's flat feet may have been incurred in service, it pertains to an unestablished fact necessary to substantiate the claim of service connection for flat feet, particularly when considering the low threshold for reopening a claim set forth in Shade.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  These statements are presumed credible for the purposes of evaluating the Veteran's request to reopen his claim for service connection.  Justus, supra.  Moreover, when viewed as a whole, the new evidence contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's flat feet.  Accordingly, the claim of entitlement to service connection for flat feet is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  The underlying claim is addressed further in the Remand section below.

D. Neck Condition

The Veteran initially filed a claim of entitlement to service connection for a neck condition in September 2004.  In a March 2005 rating decision, the RO denied the claim on the basis that the evidence failed to show a currently diagnosed neck condition.  The Veteran was notified of the decision and his appellate rights by a letter dated in April 2005.  The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision.  The March 2005 rating decision therefore became final.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.

Relevant evidence of record at the time of the RO's March 2005 rating decision included the Veteran's service treatment records, VA and private treatment records, and a VA examination report.  Based on this evidence, the RO concluded that the Veteran did not have a currently diagnosed neck condition that was incurred in or caused by service and denied the Veteran's claim for service connection.

In December 2009, the Veteran requested that his claim of entitlement to service connection for a neck condition be reopened.  Relevant additional evidence received since the RO's March 2005 rating decision includes an additional VA examination report showing a currently diagnosed neck condition.  This evidence was not previously on file at the time of the RO's March 2005 decision; thus, it is new.  Furthermore, this evidence is material because it bears directly on the missing element of a current disability, which is one of the reasons that the claim was previously denied.  Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for a neck condition, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim set forth in Shade.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Accordingly, the claim of entitlement to service connection for a neck condition is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  The underlying claim is addressed further in the Remand section below.


ORDER

As new and material evidence has been received, the Veteran's claim of entitlement to service connection for HIV is reopened; the appeal is granted to this extent only.

As new and material evidence has been received, the Veteran's claim of entitlement to service connection for a lower extremity neuropathy is reopened; the appeal is granted to this extent only.

As new and material evidence has been received, the Veteran's claim of entitlement to service connection for flat feet is reopened; the appeal is granted to this extent only.

As new and material evidence has been received, the Veteran's claim of entitlement to service connection for a neck condition is reopened; the appeal is granted to this extent only.


REMAND

After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the remaining issues on appeal.

Outstanding Records

The record indicates that there may be Social Security Administration (SSA) records not associated with the claims file.  In this regard, the Veteran submitted a copy of an SSA disability decision, and the Veteran reported at the April 2017 hearing that he was receiving SSA disability benefits for HIV, a shoulder disability, and a psychiatric disability.  There is no indication in the claims file that SSA records have been requested or obtained. 

When VA has actual notice of the existence of relevant SSA records, the duty to assist includes requesting those records from the SSA.  See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103A when "there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits").  This duty extends to obtaining a copy of the SSA decision awarding or denying benefits.  Murincsak v. Derwinski, 2 Vet. App. 363, 371 (1992); Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996).  Because SSA records are potentially relevant to the Board's determination in this case, VA must attempt to obtain and consider those records.  Therefore, on remand, the Veteran's complete SSA records should be obtained.

The record also suggests that there may be relevant VA treatment records that have not been associated with the claims file.  In this regard, the only VA treatment records associated with the claims file are from the Atlanta VA Medical Center (VAMC) dated from March 2011 to May 2013.  However, there are problem lists in the claims file from the Miami VAMC (April 2005 to February 2009); the San Diego VAMC (September 2007 to December 2007); the Jackson VAMC (April 2008 to August 2008); and the Atlanta VAMC (August 2008 to August 2010).  Moreover, in the August 2010 rating decision on appeal, the RO indicated that it had reviewed VA treatment records from the Miami, San Diego, Jackson, and Atlanta VAMCs for the date ranges indicated above.  

The Board is required to conduct a de novo review of the Veteran's claim which entails reviewing the same evidence considered by the RO.  In this case, it appears that there may be VA treatment records that are not associated with the claims file, but that were reviewed by the RO.  Upon remand, the AOJ should obtain all outstanding VA treatment records, including those indicated above that were reviewed by the RO as indicated in the August 2010 rating decision.  38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered).  Additionally, as the record indicates that the Veteran receives ongoing VA treatment, any current VA treatment records dated from May 2013 to the present should be obtained on remand.

Service Connection Claims

Initially, the Board notes that the Veteran has raised the issues of entitlement to service connection for lower extremity neuropathy as secondary to flat feet and/or a low back condition; entitlement to service connection for a low back condition as secondary to flat feet and/or his service-connected shoulder disability; entitlement to service connection for a neck condition as secondary to his service-connected shoulder disability; and entitlement to service connection for a skin condition as secondary to HIV.  See April 2017 Hearing Testimony.  VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See generally Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000); Buckley v. West, 12 Vet. App. 76, 83 (1998).  There may be multiple theories or means of establishing entitlement to a benefit for a disability, and if the theories all pertain to the same benefit for the same disability, they constitute the same claim.  Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006).  Accordingly, VA "must investigate the reasonably apparent and potential causes of [a claimant's] condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filings." DeLisio v. Shinseki, 25 Vet. App. 45, 53-54 (2011). 

The Board notes that the Veteran has not yet been provided with secondary service connection VCAA notice.  Additionally, the issues of entitlement to service connection for neuropathy and a skin condition on a secondary basis are inextricably intertwined with the issues of entitlement to service connection for a back condition, flat feet, and HIV and are deferred pending the development requested herein.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Regarding the claim of entitlement to service connection for HIV, the Veteran contends that he incurred HIV as a result of unprotected sex when he was stationed in Korea.  VA and private treatment records document a diagnosis of HIV.  The Veteran is competent to report that he engaged in unprotected sex, and service treatment records show that the Veteran had gonorrhea in service.  Thus, as there is a current diagnosis, in-service incidents, and an indication that the current disability may be related to service, the Veteran should be scheduled for a VA examination to determine the likely etiology of his HIV.  See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006).  

Regarding the claim of entitlement to service connection for neck and back conditions, the Veteran contends that he injured his back and neck in service due to performing log drills and engaging in extended marching.  Alternatively, the Veteran contends that his back and neck conditions are secondary to his service-connected right shoulder disability.  

A July 1978 service treatment record shows that the Veteran reported tenderness of the spine after being elbowed in the right side, and he was diagnosed with a contusion.  An October 1978 service treatment record shows that the Veteran reported a two year history of neck pain.  During the Veteran's October 1978 discharge examination, the examiner noted "neck pain, recurrent" in the Summary of Defects and Diagnoses section.  

The Veteran was afforded a VA examination in June 2010.  The Veteran reported neck and back pain since November 1975.  After examining the Veteran, the examiner diagnosed cervical and lumbar strain.  The examiner opined that the Veteran's cervical and lumbar strain was less likely as not related to service because there was no medical evidence "from date of separation to present to establish a longitudinal trend of subjective complaints and objective findings."  The Board finds that further rationale is necessary.  Additionally, as discussed above, the Veteran has asserted that his back and neck conditions are related to his service-connected right shoulder disability.  Specifically, the Veteran contends that his right shoulder disability causes him to sit differently, which has resulted in his neck and back conditions.  See April 2017 Hearing Transcript.  To date, no opinion regarding secondary service-connection has been sought.  

In light of the foregoing, the Veteran should be afforded a new VA examination to determine the nature and etiology of his currently diagnosed neck and back conditions, to include their relationship to his service-connected right shoulder disability.  

Regarding the remaining service connection claims, the Board finds that the evidence, at this juncture, does not necessitate the provision of VA examinations.  However, as potentially pertinent treatment records may be added to the record, additional evidence may yet be provided which meets the McLendon threshold.


Increased Rating Claim

The Veteran was last afforded a VA examination to assess the severity of his service-connected right shoulder disability in March 2012, almost six years ago.  While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the evidence suggests that the Veteran's disabilities may have worsened since the last VA examination.  See April 2017 Hearing Transcript.

Moreover, subsequent to the March 2012 VA examination, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.  After reviewing the VA examinations of record, the Board finds that they are incomplete and require further medical guidance, in light of the recent holding in Correia.  As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. 

TDIU

The TDIU issue is inextricably intertwined with those of entitlement to service connection for the claimed disabilities.  Thus, adjudication of the TDIU issue is deferred.  See Harris v. Derwinski, 1 Vet. App. at 183 (1990) (two issues are inextricably intertwined when they are so closely tied together that a final decision on one could have a negative impact on the other).

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran and his representative with appropriate notice, pursuant to the VCAA under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the requirements for establishing secondary service connection pursuant to 38 C.F.R. § 3.310, for his claim of entitlement to service connection for lower extremity neuropathy, a back condition, a neck condition, and a skin condition.

2. Obtain and associate with the Veteran's claims file all outstanding VA treatment records dated prior to March 2011 and from May 2013 to the present documenting treatment for the issues on appeal, including those discussed above that were reviewed by the RO as noted in the August 2010 rating decision.  The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private records pertinent to his appeal.

3. Request from SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination.  All attempts to fulfill this development should be documented in the claims file.  If the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e).

4. After all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the likely etiology of HIV.  

The claims file and a copy of this REMAND must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed.  

Any tests or studies deemed necessary should be conducted, and the results should be reported in detail.  The examiner should also take a full history from the Veteran concerning any risk factors in his life for transmission of HIV.

After examining the Veteran and reviewing the claims file, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran contracted HIV in service, to include as a result of unprotected sex.  In rendering this opinion, the examiner is specifically asked to discuss the period of dormancy which HIV may undergo before manifesting as a diagnosable condition.

The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  The examiner must provide a thorough rationale for each opinion given.

5. After all available records have been associated with the claims file, afford the Veteran an appropriate VA examination to determine the nature, onset, and likely etiology of any low back and neck conditions.  

The claims file and a copy of this REMAND must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed.  Any tests or studies deemed necessary should be conducted, and the results should be reported in detail.

After examining the Veteran and reviewing the claims file, the examiner should identify all low back and/or neck conditions diagnosed during the pendency of this appeal (i.e., since October 2009).  

Then, for EACH such condition, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that it had its onset in service or is related to any in-service disease, event, or injury, to include the in-service complaints of back and neck pain and the Veteran's reports of injuring himself doing log drills.  In so opining, the examiner should address the likelihood that in-service injuries such as the ones described by the Veteran could have caused the Veteran's currently diagnosed back and neck conditions.

Additionally, in light of the Veteran's contention that posture alterations due to his service-connected right shoulder disability led to his current low back and neck conditions, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed low back and/or neck condition, was (1) caused by OR (2) aggravated by the Veteran's service-connected right shoulder disability, to include as due to any posture changes caused by the right shoulder disability.  If such aggravation is found, the examiner should determine: (a) the baseline manifestations of the Veteran's low back and/or neck condition absent the effect of aggravation, and (b) the increased manifestations that are proximately due to the right shoulder disability.

The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence, particularly the July 1978 and October 1978 service treatment records showing treatment for a spine contusion and neck pain; the Veteran's contentions that posture alterations due to his service-connected right shoulder disability led to his current low back and/or neck condition, and the Veteran's statements regarding onset and continuity of symptoms.  

6. After all available records have been associated with the claims file the Veteran should be scheduled for an appropriate VA examination so as to determine the current nature and extent of all impairment due to the Veteran's service-connected right shoulder disability.  The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report must reflect that review was accomplished.  All indicated tests should be performed and all findings should be reported in detail.

The examiner should describe the nature and severity of all manifestations of the Veteran's right shoulder disability.  In this regard, the examiner should record the range of motion observed on clinical evaluation.  If there is clinical evidence of pain on motion, the examiner should indicate the degree at which such pain begins.  Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible.  

With regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so.  If the examiner is unable to estimate functional loss in terms of degrees after physical examination and eliciting the pertinent information about the flare-ups above, he or she must explain why.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).

In order to comply with the Court's recent precedential decision in Correia v. McDonald, the examiner must test and record the range of motion for BOTH the left and right shoulders in active motion, passive motion, weight-bearing, and nonweight-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.

Finally, the examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran's right shoulder disability has upon his ability to perform ordinary activities of daily living.  The examiner should conduct any appropriate tests and studies in order to determine the nature and extent of the social and industrial impairment attributable to the service-connected right shoulder disability.

The examiner must provide a rationale for each of the opinions that takes into account the Veteran's reports of his history and his current symptoms.  The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, which may reasonably explain the medical guidance in the study of this case.

7. After the above development has been completed, review the file and ensure that all development sought in this REMAND is completed.  Arrange for any further development indicated by the results of the development requested above, and then re-adjudicate the claims.  If benefits sought on appeal remain denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response.  Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order.

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 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).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs