Citation Nr: 1749088	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  11-26 392A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for residuals of exposure to asbestos.

2.  Entitlement to service connection for fibromyalgia.

3.  Entitlement to service connection for chronic fatigue syndrome (CFS).

4.  Entitlement to service connection for residuals of exposure to radiation.

5.  Entitlement to service connection for a right ankle disability.

6.  Entitlement to service connection for residuals of a low back injury.

7.  Entitlement to service connection for right lower extremity sciatica.

8.  Entitlement to service connection for sinusitis.

9.  Entitlement to service connection for rhinitis.
10.  Entitlement to service connection for irritable bowel syndrome (IBS).

11.  Entitlement to service connection for gastroesophageal reflux disease (GERD).

12.  Entitlement to increases in the (30 percent prior to January 2, 2014 and 70 percent from that date) ratings assigned for posttraumatic stress disorder (PTSD).

13.  Entitlement to a rating in excess of 10 percent for residuals of a right biceps tendon tear.

14.  Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from January 1979 to January 1982 and from April 2007 to May 2008.  These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2010, August 2011, November 2013 and January 2014 rating decisions by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO).  In September 2015, the case was remanded to afford the Veteran a hearing before the Board.  In October 2016, a Travel Board hearing was held before the undersigned; a transcript is in the record.

The issues of service connection for fibromyalgia and CFS, and seeking increased ratings for PTSD, residuals of a right bicep tendon tear and right knee arthritis are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if action on his part is required.


FINDINGS OF FACT

1.  An unappealed May 2004 rating decision denied the Veteran service connection for residuals of exposure to asbestos, essentially on the bases that there was no evidence the Veteran was exposed to asbestos in service or that he has a disability related to such exposure. 

2.  Evidence received since the May 2004 rating decision does not tend to show the Veteran has a disability related to exposure to asbestos; does not relate to an unestablished fact necessary to substantiate the claim of service connection for residuals of exposure to asbestos; and does not raise a reasonable possibility of substantiating such claim.

3.  The Veteran is not shown to have any disability that is a residual of exposure to radiation.

4.  A right ankle disability was not manifested in service and any such disability is not shown to be etiologically related to the Veteran's service. 

5.  The Veteran is not shown to have any current disability that is a residual of a back injury in service.

6.  The Veteran is not shown to have right lower extremity sciatica.

7.  The Veteran is not shown to have sinusitis.

8.  Rhinitis was not manifested in, and is not shown to be etiologically related to, the Veteran's service.

9.  The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War Era, but is not shown to have IBS.

10.  GERD was not manifested in service, and the preponderance of the evidence is against a finding that such disease is etiologically related to the Veteran's service.


CONCLUSIONS OF LAW

1.  New and material evidence has not been received, and the claim of service connection for residuals of exposure to asbestos may not be reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2016).

2.  Service connection for residuals of exposure to radiation is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2016); 38 C.F.R. § 3.303 (2016).

3.  Service connection for a right ankle disability is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2016); 38 C.F.R. § 3.303 (2016).

4.  Service connection for residuals of a back injury is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2016); 38 C.F.R. § 3.303 (2016).

5.  Service connection for right lower extremity sciatica is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2016); 38 C.F.R. § 3.303 (2016).

6.  Service connection for sinusitis is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2016); 38 C.F.R. § 3.303 (2016).
7.  Service connection for rhinitis is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2016); 38 C.F.R. § 3.303 (2016).

8.  Service connection for IBS is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2016); 38 C.F.R. § 3.303 (2016).

9.  Service connection for GERD is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2016); 38 C.F.R. §§ 3.303, 3.317 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VA's duty to notify was satisfied by January and August 2012 letters.  The January 2012 correspondence provided the Veteran the notice required in claims to reopen; it advised him of the basis for the previous denial of the claim of service connection for residuals of exposure to asbestos, and that new and material evidence was required to reopen the claim; provided the definition of new and material evidence; suggested what type of evidence would be new and material; and what was needed to substantiate the underlying service connection claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

The Veteran's service treatment records (STRs) from his first period of service, and VA and service department medical records have been secured.  He was afforded VA examinations to determine the existence and etiology of IBS and GERD.  He was not afforded VA examinations to confirm the existence and ascertain the etiology of residuals of exposure to radiation, a right ankle disability, residuals of a low back injury, right lower extremity sciatica, sinusitis, and rhinitis.  As there is either no evidence that the disability exists, or if existing, that it may be related to his service, even the low threshold standard for determining when an examination to secure a medical opinion is necessary is not met (see McLendon v. Nicholson, 20 Vet. App. 79 (2006)), and an examination to secure a medical opinion in these matters is not necessary.   

The Veteran's STRs from his second period of service are unavailable.  In such circumstances VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule.  Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The Board's analysis of these claims is undertaken with this duty in mind.  Notably, the cited caselaw does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran.  Russo v. Brown, 9 Vet. App. 46 (1996).  At the hearing in October 2016, the undersigned granted the Veteran's request for a 30-day abeyance period for submission of additional evidence.  No additional evidence was received.  A duty to assist omission is not alleged.  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires a VLJ who conducts a hearing to fulfill two duties:  (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked.  At the October 2016 hearing, the undersigned identified the issues, and advised the Veteran of what is needed to substantiate the claims.  A deficiency in the conduct of the hearing is not alleged.

Factual Background, Legal criteria and Analysis 

The Board has reviewed all of the evidence in the Veteran's record.  Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record.  Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus on what the evidence of record shows, or does not show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

The Veteran's STRs from his first period of service show that in a January 1982 report of medical history, he denied sinusitis, shortness of breath, a cough, swollen or painful joints, frequent indigestion, stomach or intestinal trouble, arthritis, a bone or joint deformity, recurrent back pain and foot trouble.  On January 1982 service separation examination, the nose, sinuses, lungs and chest, abdomen and viscera, spine, lower extremities and a neurological examination were normal.  A chest X-ray was within normal limits.

VA outpatient treatment records show that in January 2004, a past medical history of GERD was noted.  

On system review on March 2004 VA examination, the respiratory and gastrointestinal systems (other than hemorrhoids) were normal.  The Veteran reported back pain.  

A May 2004 rating decision denied service connection for asbestosis on the basis that there was no evidence of exposure to asbestos or of an asbestos-related lung disability.  The Veteran was notified of the decision, and did not perfect an appeal.

VA outpatient treatment records show that May 2005, it was noted that the Veteran did not have any pertinent past medical history pertaining to the respiratory system, the sinuses, arthritis or back problems.  He denied constipation and diarrhea.  He indicated that he was exposed to asbestos and underwent CT scanning in 2004.  He described gasping for breath and stated that he had a history of smoking.  

In February 2006, the Veteran was seen for sinusitis.  In January 2007, he reported right thigh numbness since 2005 when he was hospitalized upon slipping on ice and injuring his right knee.  Sinus x-rays in June 2009 showed sinusitis.  In August 2009, GERD, chronic sinusitis and allergic rhinitis were listed as active problems.  

On October 2009 VA examination, it was noted that the Veteran did not have joint or spine problems.  

On April 2010 VA examination, the Veteran stated he had problems with fatigue and malaise.  He denied pain.  Muscle strength was 5/5 and deep tendon reflexes were 2+ in the lower extremities.  Sensory function was intact.  

Service department records show that on a June 2010 periodic health assessment, the Veteran denied ever having had back pain, sinus disease, asthma/hay fever, joint pain or chronic pain.  An October 2010 report of medical history shows that he stated he had a history of swollen or painful joints, allergic rhinitis, indigestion/stomach trouble, bone or joint deformity and asbestos or toxic chemical exposure.  He denied recurrent back pain or any back injury.  

VA outpatient treatment records show that in September 2011, the Veteran gave a vague description of twisting his ankle and injuring his foot the previous Friday.  He stated that his happened often.  When seen several days later, he said his ankle pain had been present for about nine days and that he could not recall a direct injury to the ankle, and the only diagnosis referred to the right foot.  In January 2012, it was noted that right ankle X-rays in September 2011 showed no acute fracture or dislocation of the right ankle.

On September 2012 VA Persian Gulf War general medical examination, the Veteran stated that he was exposed to burning garbage and feces in Iraq.  It was noted that he had no specific spine complaints.  Examination found no sinus tenderness.  

On September 2012 VA gastrointestinal examination, the Veteran stated that he did not seek treatment for a gastrointestinal condition in service, but was evaluated for such shortly after his discharge in 2008.  He said that he periodically took over-the-counter medications for his gastrointestinal symptoms since his last evaluation in 2009 to the present.  The diagnoses were IBS, not found and GERD.  The examiner, who reviewed the record, opined that the Veteran's mild GERD was not caused by or a result of exposure to environmental hazards in the Gulf region (noting that GERD is not a recognized Gulf War service presumptive condition).  

VA outpatient treatment records show that in June 2013, the Veteran underwent pulmonary function testing for shortness of breath.  In August 2013, he had cramping in his right ankle and joints.  It was noted earlier that month he was hospitalized at a private facility with left upper quadrant pain and pressure over the entire stomach.  He said it appeared that he had a partial bowel obstruction, but he was subsequently told that he had a virus.  He reported pain throughout his body, mainly in the knees, left toe and right ankle.  The assessment was stable pain control.  

	New and material evidence 

When there is a final rating decision denial of a claim of service connection, such claim may not be reopened and allowed on the same factual basis.  38 U.S.C.A. § 7105.  However, if new and material evidence is received with respect to such claim, the claim shall be reopened, and considered de novo.  38 U.S.C.A. § 5108.

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).  

The requirement for new and material evidence to raise a reasonable possibility of substantiating a claim is a low threshold requirement.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether evidence is new and material, credibility of new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

Service connection for asbestosis was denied by a May 2004 rating decision on the basis that there was no evidence of exposure to asbestos or that the Veteran had an asbestos-related lung disorder.  The Veteran was notified of the May 2004 rating decision, submitted a notice of disagreement, but after a statement of the case (SOC) was issued, he did not submit a substantive appeal; therefore, the rating decision became final.  38 U.S.C.A. § 7105.  Consequently, new and material evidence to reopen the claim is required before it may be considered de novo.

As the prior denial was based on a finding that there was no evidence of exposure to asbestos or of a disability associated with such exposure, for evidence received since to relate to the unestablished facts necessary to substantiate the claim (and be new and material, warranting reopening of the claim), it would have to tend to show that the Veteran was exposed to asbestos and that he has a disability due to such exposure.

Evidence received since the May 2004 rating decision includes service department and VA outpatient records, and the Veteran's testimony at a hearing before the undersigned.  None of the additional evidence added to the record is new evidence that bears positively on the instant claim.  He reported in May 2005 that he had been exposed to asbestos.  During the October 2016 hearing, the Veteran testified that he was exposed to asbestos when he served on the USS Corry.  Personnel records confirm that he served on this ship in June 1980.  However, there is no clinical evidence in the record showing that he has any disability due to such exposure.  With his claim to reopen, he has not presented or identified for VA to secure any new medical evidence showing that he has a disability due to exposure to asbestos; without evidence of such disability, whether or not he was exposed to asbestos in service is not material.

Accordingly, the Board finds that nothing new received for the record since the May 2004 rating decision relates materially to the threshold unestablished fact necessary to substantiate the claim of service connection for residuals of exposure to asbestos or raises a reasonable possibility of substantiating such claim.  Hence, the Board finds that new and material evidence has not been received, and that the claim of service connection for residuals of exposure to asbestos may not be reopened.




	Service connection 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To substantiate a claim of service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service.  See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004).

	Residuals of exposure to radiation 

At the October 2016 hearing, the Veteran testified that he was exposed to radiation serving on nuclear submarines.  He did not identify a disability resulting from such exposure, and there is no evidence in the record showing that he has a disease specific to radiation-exposed veterans (see 38 C.F.R. § 3.309(d)) or a radiogenic disease (see 38 C.F.R. § 3.311).  (He has established service connection for a left eye cataract base on trauma to the eye, not on exposure to radiation.)  Service connection is limited to those cases where disease or injury has resulted in a current chronic (shown during the pendency of the claim; see McClain v. Nicholson; 21 Vet. App. 319 (200&)) disability.  In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  As this threshold requirement for substantiating a claim of service connection is not met, the preponderance of the evidence is against this claim, and the appeal seeking service connection for residuals of exposure to radiation must be denied.

	Residuals of a right ankle disability 

During the October 2016 hearing, the Veteran testified that he injured his right ankle when he injured his right knee.  [Right knee degenerative arthritis is service-connected.]  The initial postservice evidence of any right ankle treatment is in September 2011 when he reported a recent injury; notably, he stated that he could not remember a right ankle injury.  Since he has provided conflicting accounts regarding the onset of his right ankle problems, the Board finds his testimony lacking in probative value.  He has not submitted any competent (medical) evidence relating any current right ankle disability to a disease or injury in service.  The preponderance of the evidence is against the claim of service connection for a right ankle disability, and the appeal in this matter must be denied.

	Residuals of a low back injury and right lower extremity sciatica

At the October 2016 hearing before the undersigned the Veteran testified that he was thrown when an ammunition bunker blew up.  Notably, when he was examined by VA in October 2009, there was no indication that he had any problems involving the spine.  Similarly, he did not report spine complaints on September 2012 VA examination.  The Veteran has not provided any medical evidence showing that he has any residuals of a back injury or right lower extremity sciatica.  Service connection is limited to those cases where disease or injury has resulted in a current (shown at any time during the pendency of the claim) disability.  In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  The threshold requirement for substantiating a claim of service connection (a diagnosis of the disability for which service connection is sought) is not met.  The preponderance of the evidence is against these claims; the appeal in these matters must be denied.  

	Sinusitis and rhinitis

The Veteran's STRs are silent for complaints or findings concerning sinusitis or rhinitis.  A January 1982 service separation examination shows that the sinuses were normal.  The Veteran was apparently first seen for sinusitis in February 2006, between his two periods of active duty service.  Although June 2009 sinusitis was found on in, the Veteran denied sinus disease in June 2010 and examination in September 2012 found no sinus tenderness.  The Veteran has not furnished any evidence showing that he currently has [during the pendency of the instant claim has had] sinusitis.  Therefore, the threshold requirement for substantiating a claim of service connection (a diagnosis of the disability for which service connection is sought) is not met.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  

The initial evidence of any treatment for rhinitis is in October 2010, more than two years following the Veteran's separation from service.  There is no medical evidence showing that it is, or may be, related to his service.  Whether or not any current rhinitis may be related to service/events or exposures therein is a medical question that is beyond the scope of lay observation or common knowledge.  It requires medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran is a layperson, and has not presented any medical opinion or treatise evidence supporting that his rhinitis is/may be related to his service.  His opinion in the matter has no probative value.  

The preponderance of the evidence is against these claims; the appeal in these matters must be denied.

	GERD and IBS 

Service connection may be established for a disability due to undiagnosed illness of a Veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War Era.  To establish service connection on that basis, there must be objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 

The illness must become manifest during either active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4.  By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis.  There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification.  There must be a minimum of a six-month period of chronicity.  There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply.  VAOPGCPREC 8-98 (Aug. 3, 1998).

A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following):  (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms:  (1) CFS; (2) fibromyalgia; (3) IBS; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117(d) warrants a presumption of service-connection.  38 C.F.R. § 3.317(a)(2)(i).  For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).  For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).

To the extent that the Veteran claims that his GERD is due to his service in the Persian Gulf, since it is a known clinical diagnosis, it does not fall within the purview of the presumptive provisions of 38 C.F.R. § 3.317.  HIs STRs from his first period of service are silent for complaints or findings pertaining to GERD.  A past medical history of GERD was first noted in January 2004.  GERD was noted to be an active problem in August 2009 (more than a year following his second period of active duty service)(.  

Whether or not the Veteran's GERD may be related to service is a medical question that is beyond the scope of lay observation or common knowledge; it requires medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The only competent (medical opinion) evidence in the record in this matter is against the Veteran's claim.  On September 2012 VA examination, the examiner, based on a review of the record, opined that it is less likely than not that the Veteran's GERD is related to his service.  The opinion reflects familiarity with the record/the Veteran's medical history, and in the absence of competent (medical) evidence to the contrary is persuasive.  The Veteran is a layperson, and has not presented any medical opinion or treatise evidence supporting his theory that GERD is/may be related to his service.  Therefore, his own opinion in the matter may not be afforded any probative value.  The preponderance of the evidence is against the claim of service connection for GERD.  Accordingly, the appeal in this matter must be denied.

There is no competent (medical) evidence that the Veteran has IBS.  On September 2012 VA gastrointestinal examination, the examiner specifically found that the Veteran does not have IBS.  Service connection is limited to those cases where disease or injury has resulted in a current (shown during the pendency of the claim; see McClain v. Nicholson; 21 Vet. App. 319 (200&)) chronic disability.  In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  As this threshold requirement for substantiating a claim of service connection is not met, the preponderance of the evidence is against the claim, and the appeal seeking service connection for IBS must be denied.


ORDER

The appeal to reopen a claim of service connection for residuals of exposure to asbestos is denied.

Service connection for residuals of exposure to radiation, a right ankle disability, residuals of a low back injury, right lower extremity sciatica, sinusitis, rhinitis, IBS and GERD is denied.  


REMAND

Regarding service connection for fibromyalgia and CFS, a September 2012 VA Persian Gulf examination report notes he examiner's statement there were separate fibromyalgia and CFS worksheets.  They are not associated with the record, and the November 2014 statement of the case (SOC) that addressed these claims does not cite to them.  The reports are "of record", and must be located and associated with the record.

The Veteran also seeks increased ratings for PTSD, residuals of a right biceps tendon tear, and right knee arthritis.  In October 2016 he testified that the disabilities have increased in severity since he was last examiner (he has not been examined for any of these disabilities in more than three years).  In light of the allegation of worsening and the length of the intervening period since he was last examined, contemporaneous examinations to assess the disabilities are necessary.

Accordingly, the case is REMANDED for the following:

1.  The AOJ should ask the Veteran to identify the providers of all evaluations and treatment he has received for PTSD, residuals of a right biceps tendon tear and a right knee disability since 2014.  He should also be asked to submit authorizations for VA to secure records of any such private evaluations or treatment.  The AOJ should secure for the record all outstanding records of the evaluations and treatment from the providers identified. 

2.  The AOJ should arrange for exhaustive development to locate and associate with the record complete clinical records of the September 2012 VA examinations for fibromyalgia and CFS (the worksheets cited by the examiner).  If such reports are unavailable, the AOJ should arrange for examinations to ascertain whether the Veteran has such disabilities.

3.  Thereafter, the AOJ should arrange for a VA psychiatric examination of the Veteran to assess the severity of his PTSD.  The Veteran's record must be reviewed by the examiner in conjunction with the examination.  The nature and severity of all psychiatric symptoms must be described in detail, and the examiner should specifically comment on their impact on social and occupational functions.  

The examiner should include rationale with all opinions.

4.  The AOJ should also arrange for a VA muscles examination to assess the nature and severity of the Veteran's residuals of a right biceps tendon tear.  The Veteran's record must be reviewed by the examiner in conjunction with the examination.  All findings must be described in detail (and the examiner should include comment on their impact on occupational and daily activity functioning).

The examiner should include rationale with all opinions.

5.  The AOJ should arrange for an orthopedic examination of the Veteran to assess the severity of his right knee disability.  The entire record should be reviewed by the examiner in conjunction with the examination.  All findings and related functional impairment should be described in detail.  All indicated studies must be completed (to include tests for instability and range of motion studies, with notation of any additional functional limitations due to factors such as weakness, pain, incoordination, weight-bearing, fatigue, use, etc.).  The examiner should comment on any restrictions on occupational and daily activity functions due to the disability.  

The examiner must include rationale with all opinions

6.  The AOJ should then review the record and readjudicate the remaining claims.  If any remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative opportunity to respond, and 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
GEORGE R. SENYK 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s