Citation Nr: 1806401 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-28 959A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for a respiratory disorder. 3. Entitlement to service connection for a jaw disorder. 4. Entitlement to an initial rating in excess of 20 percent for back condition. 5. Entitlement to an initial rating in excess of 10 percent for right leg radiculopathy. 6. Entitlement to an initial rating in excess of 20 percent for left leg radiculopathy. REPRESENTATION Veteran represented by: Francis Kehoe, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from February 2000 to June 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in New York, New York. Jurisdiction was subsequently transferred to the RO in St. Petersburg, Florida. In April 2017, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. During the hearing, the Veteran addressed the matters of entitlement to increased ratings for his service-connected right and left lower extremity disabilities. However, upon review of the record, the Board notes that the Veteran did not appeal the August 2013 rating decision awarding service connection for these disabilities, and these issues were not certified to the Board. However, given that the Veteran's VA Form 9, received in October 2013, expressed disagreement with the ratings assigned for the radiculopathy disabilities, the Board will address these matters accordingly. The issues of entitlement to service connection for heart and jaw disorders, as well as the claims for increased ratings for a back condition, right leg radiculopathy, and left leg radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A respiratory disorder, diagnosed as chronic rhinitis, had its onset in service. CONCLUSION OF LAW The service-connection criteria for chronic rhinitis are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to service connection for a respiratory disorder with onset in service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a), and not to the disability claimed on appeal. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service treatment records reflect that the Veteran underwent chest x-ray in December 2001 for assessment of chronic cough. That x-ray revealed no evidence of acute cardiopulmonary disease. A January 2002 report reflects that the Veteran reported onset of shortness of breath running. He failed a trial of albuterol. He was referred to the pulmonary clinic, which diagnosed him with vocal cord dysfunction. It was noted that environmental factors such as exposure to diesel, oil and cleaning agents, as well as physical exertion, triggered his symptoms. The examiner noted symptoms consistent with vocal cord dysfunction. In April 2002, the Veteran was diagnosed with vocal cord dysfunction, rule out upper airway resistance. On report of medical history at discharge in June 2002, the Veteran endorsed shortness of breath, wheezing, use of an inhaler, and chronic cough. A post-service discharge summary dated in August 2009 from North Shore University Hospital reflects diagnosed of chronic obstructive pulmonary disease (COPD). 2009 VA treatment report reflects that the Veteran complained of nasal congestion and difficulty breathing. He was status post septoplasty and infer turb reduction in September 2009. Diagnosis of allergic rhinitis is indicated. On VA examination in December 2009, the Veteran reported that he served in Kuwait from 2000 to 2002, and he started experiencing shortness of breath, wheezing, trouble breathing, and trouble swallowing in service. The examiner diagnosed postnasal drip secondary to chronic rhinitis developed during service, because the Veteran denied nasal symptoms prior to his service. There was no vocal cord dysfunction, but there was a secondary insult to the larynx secondary to postnasal drip and reflux. The examiner noted that "it is likely related to his service exposure to human waste, fumes and dust while in service." On VA treatment in March 2012, the Veteran reported that he had difficulty breathing throughout the day. He was using NeilMed irrigation daily. He was referred to an allergist. The Board notes that the Veteran's service personnel records and DD214 do not confirm any foreign service, to include service in the Persian Gulf. However, the Veteran has submitted a recommendation for award dated in November 2000, to cover the period from September 2000 to January 2001 for service while deployed to Southwest Asia. The Veteran has also submitted a picture from an Army newsletter dated in November 2000 showing him with a command leader in Kuwait, which he indicates documents his service in Southwest Asia. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that his service in Kuwait is verified. First, the record reflects that the Veteran's respiratory complaints have been attributed to a post-service diagnosis of chronic rhinitis. Thus, a current disability is established. Second, the Veteran has consistently and credibly attested to exposure to fine dust, oil fires, burn barrels, and fuel from burned human waste. Moreover, service treatment records document complaints and treatment of cough, shortness of breath, wheezing. Thus, an in-service incurrence is established. As to nexus, the only opinion is that of the December 2009 VA examiner, who in reviewing the record, interviewing the Veteran, and performing an examination, concluded that the Veteran's chronic rhinitis had its onset in service, to include as due to exposure to hazards in the Persian Gulf. There is no opinion to the contrary. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that his allergic rhinitis first manifest in service, and service connection for chronic rhinitis is warranted. See 38 C.F.R. § 3.303(d). ORDER Entitlement to service connection for chronic rhinitis is granted. REMAND Upon review of the claims file, the Board believes that additional development on the remaining claims on appeal is warranted. Service Connection for Jaw Disorder The Veteran contends that he suffers from jaw disability as a result of having four front teeth pulled during service. In-service dental treatment records include an October 2001 report noting that the treatment plan was to extract 5, 12, 21, and 28. A report of medical history dated in June 2002 indicates that the Veteran had braces for surgery to the jaw, and he was to schedule surgery at a later date. Post-service VA treatment records reflect that the Veteran was planning to schedule for surgery on his jaw. In April 2009, the Veteran reported that he had several teeth extracted in preparation for oral surgery on his jaw to improve breathing capacity. At the time they were pulled, he still had 6 to 8 months let in service. The medical center staff wanted him to be seen by an ENT specialist, but the physician on staff left. The treatment/surgery was not completed. He still had brackets on his teeth from 2002 and had yet to have the issue resolved. A 2010 entry indicates that the Veteran was seeking service connection for oral surgery that was never completed as a result of his oral surgeon leaving before he completed jaw surgery. He had documents proving several tooth extractions completed at Fort Bliss in order to prepare his jaw for surgery. A July 2010 report indicates that the Veteran would eventually have to have surgery on his jaw to increase his airway. However, during the Veteran's Board hearing, he testified that the surgery was never completed. He had huge gaps in his teeth, which led to severe periodontal gum disease. He had bone loss, and a narrower jaw. The Veteran has not been afforded an examination to determine the nature and etiology of any jaw and/or dental disorder. Given the in-service report of teeth extraction and braces, post-service VA treatment records indicating that further treatment/surgery was indicating, and the Veteran's report of continued problems with his jaw and teeth related to the in-service extractions, the Board believes that an examination is necessary to resolve the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In addition, while this matter is on remand, any outstanding post-service records of dental treatment should be obtained. Service Connection for Heart Disorder During the Veteran's April 2017 Board hearing, he testified that he had heart disorder began in service, with symptoms of shortness of breath and palpitations beginning in basic training. He reported that he underwent EKG, which was normal. An in-service January 2000 treatment report reflects that the Veteran complained of chest pain for 4 days, and dizziness for 1 day. He also experienced shortness of breath with chest pain and chest pain at rest, and was referred for EKG studies. He was assessed with probable chest wall pain. On report of medical history on discharge in June 2002, the Veteran endorsed shortness of breath. Post-service VA treatment records reflect that the Veteran had symptoms of exertional palpitations and lightheadedness, and was diagnosed with Wolff-Parkinson-White syndrome, and underwent ablation in 2009. A May 2009 EKG was essentially normal. In 2010, an assessment of palpitations with a history of Wolff-Parkinson-White syndrome, status post ablation in 2009 was noted. The Veteran has not been afforded an examination to determine the nature and etiology of any heart disorder. Given the in-service report of symptoms such as palpitations and shortness of breath, his report of continued symptoms since service, and the post-service diagnosis of Wolff-Parkinson-White syndrome, status post ablation, the Board believes that an examination is necessary to resolve the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Increased Rating for Back Disorder The Court of Appeals for Veterans Claims (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 conditions, and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The Veteran has been afforded various examinations pertaining to his service-connected back disorder, including in 2013. Review of these examination reports reveals that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted. In light of Correia, these VA examinations are insufficient. In addition, the Veteran reported during his 2017 Board hearing that this disability had worsened since the last examination. Accordingly, the Veteran should be afforded a new examination to determine the nature and severity of his service-connected back disorder, to include consideration of the range of motion testing requirements of Correia. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination). To the extent that the new VA examiner is asked to discuss any related neurological impairment and any neurological impairment is to be considered when addressing the claim for increased rating for the lumbar spine disability, the matter of entitlement to an increased rating for radiculopathy of the right and left lower extremities is inextricably intertwined with the claim for increased rating. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). In addition, the Veteran has reported worsening symptoms in his right and legs stemming from his back disorder. Accordingly, he should be afforded a new examination to determine the nature and extent of his right and left lower extremity radiculopathy. The Board further notes that the Veteran has indicated significant interference with his employment as a result of his back disorder. He reported during his Board hearing that he had lost his last job due to the severity of his back problem and days missed from work, and while he had obtained new employment, he is making significantly less money than in the past due to problems with work performance. Pursuant to 38 C.F.R. § 3.321(b)(1), VA's Director of Compensation Service is authorized to approve an extraschedular evaluation if the case application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). As this is such a case, extraschedular consideration is remanded for referral to the Director of Compensation Service. Increased Rating for Right and Left Lower Extremity Radiculopathy As indicated above, the Veteran has expressed disagreement with the ratings assigned for his service-connected radiculopathy disabilities. A statement of the case has not yet been issued. Under these circumstances, a statement of the case must be issued. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records, including updated VA treatment records and ANY POST-SERVICE RECORDS OF DENTAL TREATMENT. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed jaw disorder. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all jaw/dental disorder(s). Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any jaw/dental disorder manifest in service, or is otherwise medically related to service, to include the reports of teeth extraction therein. The examiner is asked to consider and address the Veteran's statements regarding the onset of jaw/dental problems following the teeth extraction in service. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed heart disorder. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all heart disorder(s). Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any heart disorder manifest in service, or is otherwise medically related to service, to include the reports of palpitations and shortness of breath therein. The examiner is asked to consider and address the Veteran's statements regarding cardiac symptoms in and since service. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 4. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected lumbar spine disability. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 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. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should also indicate if there is ankylosis of the spine or resultant neurological impairment. In addition, the examiner should describe the frequency and duration of any incapacitating episodes due to the thoracolumbar spine disability, if applicable. The examiner should also comment on the impact of the Veteran's lumbar spine and right and left lower extremity radiculopathy disabilities on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 5. Refer the Veteran's claims for increased rating for back disorder on an extraschedular basis to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 3.321(b). 6. The AOJ should undertake any additional development it deems warranted. 7. The AOJ should take all indicated action in order to issue a statement of the case for the issue of entitlement to an increased ratings for right and left lower extremity radiculopathy. If the Veteran perfects an appeal, the claim should be certified to the Board and after any necessary development has been completed. 8. Then, the AOJ should readjudicate the Veteran's other claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs