Citation Nr: 1817359	
Decision Date: 03/23/18    Archive Date: 04/03/18

DOCKET NO.  14-31 231A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent for a dysthymic disorder prior to August 28, 2007, and entitlement to a rating in excess of 70 percent thereafter.

2.  Entitlement to a rating in excess of 20 percent for a chronic lumbosacral strain with degenerative disc disease.

3.  Entitlement to a rating in excess of 10 percent for a tender scalp scar, residual of cyst removal.

4.  Entitlement to service connection for sleep apnea.

5.  Entitlement to service connection for skin disability of the feet, claimed as tinea pedis.

6.  Entitlement to service connection for muscle pain, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. 
7.  Entitlement to service connection for joint pain, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. 

8.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A.M. Clark, Counsel


INTRODUCTION

The Veteran served on active duty from August 1993 to January 2002. 
 
These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2006 (dysthymic disorder) and August 2010 (all other issues) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 

The Veteran testified before the undersigned at a July 2017 videoconference hearing.  A transcript has been associated with the file.

The issues of entitlement to increased ratings for a dysthymic disorder, chronic lumbosacral strain with degenerative disc disease, and a tender scalp scar, residual of cyst removal; entitlement to service connection for sleep apnea, muscle pain, and joint pain; 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).


FINDING OF FACT

Giving him the benefit of the doubt, the Veteran has a skin disability of his feet, claimed as tinea pedis, that is etiologically related to his active duty service.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a skin disability of the feet, claimed as tinea pedis, have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110 (2012).  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/ Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d). 

Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

In-service treatment records reflect treatment for tinea pedis (December 1993, April 1994, July 1995, February 1998), and athlete's foot (September 2000).  In a Report of Medical History, completed at service separation, it was noted that the Veteran had been treated for recurrent athlete's foot.  A January 2001 separation examination noted tinea pedis.  A November 2003 post-service treatment record noted eczema of the foot.  The Veteran continues to report that he suffers from a skin disability on the feet.  See BVA Hearing Transcript (T.) at 15. 

A VA etiological opinion has not been obtained with respect to the Veteran's skin disability of the feet.  While VA could undertake additional development with respect to his feet (clarify his diagnosis and obtain an etiological opinion), based on the fact that the Veteran was noted to have tinea pedis and athlete's foot in service, and continues to have the same complaints and findings, the Board will resolve all reasonable doubt in favor of the Veteran.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).  The nature and extent of the problem related to service is not before the Board. 

Accordingly, the Board concludes that a grant of service connection for a skin disability of the feet, claimed as tinea pedis, is warranted. 


ORDER

Service connection for skin disability of the feet, claimed as tinea pedis, is granted.


REMAND

Further evidentiary development is required prior to reviewing the issues remaining on appeal.

Outstanding Records-The Veteran testified at his July 2017 BVA hearing that he had applied for benefits from the Social Security Administration (SSA).  The evidence of record does not show that VA has ever attempted to obtain the Veteran's records from the SSA.  These records may be highly relevant to the Veteran's claims.  Therefore, VA must attempt to obtain these records.  On remand, the AOJ should also obtain and associate with the claims file all outstanding VA treatment records.  

Increased Ratings-The Veteran was last afforded VA examinations of his dysthymic disorder and chronic lumbosacral strain with degenerative disc disease in July 2015.  A VA examination of his tender scalp scar was last completed in July 2014.  The evidence of record indicates that his disabilities may have worsened since his last VA examinations.  See BVA Hearing Transcript.  The Board finds that he should be afforded new examinations evaluating his dysthymic disorder, chronic lumbosacral strain with degenerative disc disease and tender scalp scar, residual of cysts removal, in order to determine the current nature and severity of these service-connected disabilities.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

Additionally, with respect to his claims for increased ratings for his dysthymic disorder and chronic lumbosacral strain with degenerative disc disease, the Board finds that additional action is required in order to satisfy VA's obligations under the VCAA.  Specifically, the RO must be afforded the opportunity to review the recently-submitted VA examinations completed in July 2015 (following the most recent August 2014 statement of the case).  Significantly, waiver of these additional documents has not been provided.  See 38 C.F.R. §§ 19.31, 20.1304 (2017). 

Without a written waiver of initial RO consideration of the additional evidence, the appellant's claims must be returned to the agency of original jurisdiction (AOJ) for readjudication.  See Disabled American Veterans v. Principi, 327 F. 3d 1339 (Fed. Cir. 2003) [absent a waiver, the Board may not adjudicate a claim based on evidence which has not been previously considered by the RO].

TDIU-The Veteran's claim for entitlement to TDIU is inextricably intertwined with his remanded claims for an increased ratings.  Therefore, the Board will not issue a decision on this claim at this time.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).

Sleep Apnea-The Veteran asserts that he has suffered from sleep problems since service.  He has submitted an August 2017 statement from his friend attesting that he began noticing the Veteran's sleep problems in service.  He reported that the Veteran was always snoring badly and sometimes it seemed as if he was choking in his sleep. Post-service treatment records reflect that the Vetera was diagnosed with sleep apnea in 2005.  The Veteran continues to suffer from sleep apnea. 

Based on the credible statements submitted by the Veteran and his friend regarding his longstanding sleep problems and his current allegations of continuity of symptomatology since service, the Board finds that a remand for a VA examination and opinion regarding the claim of service connection for sleep apnea is necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Muscle Pain and Joint Pain Disabilities-The Veteran asserts that he suffers from muscle pain and joint pain disabilities that began in service.  He testified at his BVA hearing that he believed receiving anthrax shots in service and being exposed to burning refineries in the Gulf may have contributed to the development of these problems.  The Board finds that a VA examination and opinion is necessary to determine whether the Veteran has any muscle or joint pain disabilities related to service, to include as due to an undiagnosed illness or other qualifying chronic disability based on Gulf War service. 

Accordingly, the case is REMANDED for the following actions:

1.  Obtain all outstanding VA treatment records. Any negative search result should be noted in the record. 

2.  Attempt to obtain a copy of any SSA decision awarding or denying disability benefits for the Veteran, copies of all medical records upon which any such SSA disability benefit award was based, and a copy of any medical records associated with any subsequent disability determinations by the SSA for the Veteran. 

All requests for records and their responses should be clearly delineated in the claims folder.  The AOJ should notify the Veteran in accordance with 38 C.F.R. § 3.159(e) if the SSA records are unavailable.

3.  Schedule the Veteran for VA examinations to determine the nature and severity of his service-connected dysthymic disorder, chronic lumbosacral strain with degenerative disc disease, and tender scalp scar.

The Veteran's claims file should be provided to the examiner.  The examiner should obtain a detailed clinical history from the Veteran.  All pertinent pathology found on examination should be noted in the report of the evaluation.  Any testing deemed necessary should be performed. 

Additionally, with respect to his claim for a chronic lumbosacral strain with degenerative disc disease, for any neurological impairment found to be associated with the service-connected back disability, the examiner is asked to:

(a) identify the specific nerve(s) so affected, 

(b) indicate the degree of paralysis (i.e. complete paralysis or mild, moderate, or severe incomplete paralysis) in the affected nerves. 

Additionally, with respect to his chronic lumbosacral strain with degenerative disc disease, pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination of his back should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing.  If the back cannot be tested on "weight-bearing," the examiner must specifically indicate that such testing cannot be done.

The examiner should also evaluate the effects of the Veteran's service-connected disabilities on his ability to obtain substantially gainful employment.  

4.  Arrange for the Veteran to undergo VA examinations to determine the nature and etiology of any sleep disability, muscle pain disability and joint pain disability found to be present, and their relationship, if any, to his military service. 

Any necessary testing should be conducted.  The claims file must be reviewed in conjunction with such examinations, and the examiners must indicate that such review occurred. 

Sleep Apnea-The VA examiner is asked to address the following question:
   
Whether it is at least as likely as not (i.e., there is at least a 50% probability) that any sleep apnea had its onset in service or is otherwise medically related to in-service injury or disease. 

Muscle Pain and Joint Pain-Regarding the Veteran's muscle and joint pain disabilities, the examiner must first provide an opinion as to whether there is objective evidence that the Veteran suffers a chronic muscle pain disability and/or a chronic joint pain disability. 

If a muscle disability is identified, the examiner must state whether it is as least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise related to service (to include anthrax shots and exposure to burning refineries in the Persian Gulf).  

If the Veteran's muscular symptoms cannot be ascribed to any known clinical diagnosis, the examiner must specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. 

If a joint disability is identified, the examiner must state whether it is as least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise related to service (to include anthrax shots and exposure to burning refineries in the Persian Gulf).  

If the Veteran's joint symptoms cannot be ascribed to any known clinical diagnosis, the examiner must specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. 

All opinions offered must be accompanied by a clear rationale consistent with the evidence of record.  If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 

5.  After completing the above, and any other development deemed necessary, readjudicate the issues currently on appeal with consideration of all applicable laws and regulations.  If any benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).



______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs