Citation Nr: 1754228
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 14-41 294 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico

THE ISSUES

1. Entitlement to service connection for a pinguecula.

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

3. Entitlement to service connection for a thyroid disorder, to include hyperthyroidism and to include as secondary to exposure to an herbicide agent.

4. Entitlement to service connection for prostate cancer, to include as secondary to exposure to an herbicide agent.

5. Entitlement to service connection for diabetes mellitus, to include as secondary to exposure to an herbicide agent.

6. Entitlement to service connection for hypertension, to include as secondary to exposure to an herbicide agent.

7. Entitlement to an initial compensable disability rating for a scar on the right lower extremity.

8. Entitlement to an initial compensable disability rating for a scar on the left lower extremity.

9. Entitlement to an initial compensable disability rating for residuals of bronchopneumonia.

10. Entitlement to an initial compensable disability rating for defective vision.

REPRESENTATION

Appellant represented by: Vietnam Veterans of America

ATTORNEY FOR THE BOARD

M. Shouman, Associate Counsel

INTRODUCTION

The Veteran honorably served on active duty in the United States Air Force from July 1956 to October 1961.

These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The decision granted service connection for bronchopneumonia, defective vision, and a scar in each of the left and right lower extremities, and assigned a noncompensable evaluation for each of these disabilities. The July 2013 decision also denied service connection for a mental condition, thyroid problems, prostate cancer, diabetes mellitus, hypertension, and a pinguecula.

The Board considered the claims in June 2016, on which occasion they were remanded for additional development. The Board finds there has been substantial compliance with its June 2016 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of Stegall v. West, 11 Vet. App. 268 (1998) when the examiner made the ultimate determination required by the Board’s remand) aff’d, 287 F.3d 1377 (2002). For example, in furtherance of the Board’s remand instructions, the agency of original jurisdiction (AOJ) arranged for new VA examinations to be conducted to determine the nature and severity of the Veteran’s scars and vision; followed all appropriate development for a potential herbicide agent exposure at Shemya Air Force Base in Alaska (later renamed to Eareckson Air Station); and arranged for an addendum to a June 2013 VA psychiatric examination to address the Veteran’s contention that his depression is due to the death of his fellow servicemen due to an airplane crash in service, as well as his reports of sadness since discharge from service. The claim was then readjudicated in August 2017.

The issues of entitlement to service connection for hearing loss and entitlement to service connection for tinnitus have been raised by the record in a September 2012 statement but they have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017).

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to service connection for an acquired psychiatric disorder, entitlement to service connection for a pinguecula, entitlement to an initial compensable evaluation for residuals of bronchopneumonia, and entitlement an initial compensable disability rating for defective vision are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.

FINDINGS OF FACT

1. The competent and probative evidence shows that the Veteran has hyperthyroidism.

2. The weight of the competent and probative is against a finding that the Veteran’s hyperthyroidism is related to his active service.

3. The competent and probative evidence shows that the Veteran has prostate cancer.

4. The weight of the competent and probative is against a finding that the Veteran’s prostate cancer is related to his active service.

5. The competent and probative evidence shows that the Veteran has diabetes mellitus.

6. The weight of the competent and probative is against a finding that the Veteran’s diabetes mellitus is related to his active service.

7. The competent and probative evidence shows that the Veteran has hypertension.

8. The weight of the competent and probative is against a finding that the Veteran’s hypertension is related to his active service.

9. The competent and probative evidence shows that prior to December 10, 2015, the Veteran had one superficial, nonlinear scar on his right lower extremity with an area of 2 square centimeters (about 0.31 square inches) and that was neither unstable nor painful.

10. The competent and probative evidence shows that prior to December 10, 2015, the Veteran had one superficial, nonlinear scar on his left lower extremity with an area of 2 square centimeters (about 0.31 square inches) and that was neither unstable nor painful.

11. The competent and probative evidence shows that from December 10, 2015, the Veteran has one painful scar on his right lower extremity.

12. The competent and probative evidence shows that from December 10, 2015, the Veteran has one painful scar on his left lower extremity.

CONCLUSIONS OF LAW

1. The criteria for service connection for a thyroid disorder, to include hyperthyroidism, have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303.

2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303.

3. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1112-13, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.

4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1112-13, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.

5. The criteria for a compensable schedular rating for a scar on the right lower extremity prior to December 10, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.10, 4.14, 4.21, 4.31, 4.118 (DC 7802, 7804).

6. The criteria for a compensable schedular rating for a scar on the left lower extremity prior to December 10, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.10, 4.14, 4.21, 4.31, 4.118 (DC 7802, 7804).

7. The criteria for a single schedular rating of 10 percent, but not higher, for the scars on the right and left lower extremities from December 10, 2015 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.10, 4.14, 4.21, 4.118 (DC 7802, 7804).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contends that he is entitled to service connection for a thyroid disorder, for prostate cancer, for diabetes mellitus, and for hypertension. The Veteran also contends that he is entitled to initial compensable disability ratings for scars on each of his lower extremities. After reviewing the record, the Board finds that the weight of the competent and probative evidence is against a finding that the Veteran’s hyperthyroidism, prostate cancer, diabetes mellitus, and hypertension are related to his active service. The Board also finds that increased initial disability ratings for the scars are not warranted prior to December 10, 2015, but that a single disability rating of 10 percent is warranted for painful scars from December 10, 2015. The reasons and bases for these decisions will be explained below.

I. Notice and Assistance

VA has a duty to provide veterans with notice and assistance in substantiating a claim. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

In October 2016, the appellant filed a VA Form 21-4138, Statement in Support of Claim, stating that, “I am submitting documents to support my claim.” 10/04/2016, VA 21-4138 (Statement in Support of Claim), at 1. The submission contained no additional supporting documents, and no supporting documents have been stored into the VA records system (VBMS) since then. A presumption of regularity is applied to all VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”) (citing Butler v. Principi, 244 F.3d 1337, 1339 (Fed. Cir. 2001)); accord Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examination). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. The Board finds that no evidence rebutting this presumption has been shown, and neither the appellant nor the appellant’s representative have pointed to the existence of such evidence.

Moreover, to the extent that the appellant’s statement of “submitting documents” refers to an intent to file in the future, the Board notes that the appellant filed the statement more than one year before the present decision, and yet no additional documents were received. Although VA has a statutory duty to assist in developing evidence pertinent to a claim, the appellant also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA’s duty must be understood as a duty to assist an appellant in developing a claim, rather than a duty on the part of VA to develop the entire claim with the appellant performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008) (citing Wood, 1 Vet. App. 193).

The Veteran’s representative has argued that the Veteran should be scheduled for VA examinations for his thyroid disorder, prostate cancer, diabetes mellitus, and hypertension. 01/12/2016, IHP, at 5-6. As explained below, the Board does not agree that the evidence is sufficient to provide an examination for any of those disabilities.

The Board has considered the appellant’s appealed issues being decided upon and decided on the matters based on the pertinent evidence. Neither the appellant nor the appellant’s representative has raised any other issues with respect to VA’s duties, nor have any other issues been reasonably raised by the record with respect to VA’s duties. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Given the above, the Board will proceed to the merits of this appeal.

II. Service Connection: Thyroid Disorder, Prostate Cancer, Diabetes Mellitus, and Hypertension

A. Legal Principles

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

The Board must consider all the evidence of record and make appropriate competence, credibility, and weight determinations. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

B. Analysis

The Board finds that the evidence shows that the Veteran does not meet the requirements for service connection for his hyperthyroidism, prostate cancer, diabetes mellitus, and hypertension.

The evidence shows that the Veteran has hyperthyroidism, prostate cancer, diabetes mellitus, and hypertension. In October 2007, he was diagnosed with prostate cancer. 10/24/2007, Medical Treatment Record – Government Facility, at 10. In August 2008, the Veteran was assessed with hyperthyroidism, diabetes mellitus, and hypertension. 10/03/2008, Medical Treatment Record – Government Facility, at 17. The Veteran continues to be treated for all four disabilities. E.g., 06/28/2016, CAPRI. Thus, the competent evidence shows a current disability for each of hyperthyroidism, prostate cancer, diabetes mellitus (Type II), and hypertension. Therefore, the first element of Shedden, a current disability, has been satisfied for each of those four disabilities.

Diabetes mellitus and hypertension are considered chronic diseases under 38 C.F.R. § 3.309(a). With a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 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). An award of service connection based solely on continuity of symptomatology is only permitted for the conditions listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336-38 (2013).

With respect to diabetes mellitus and hypertension, the presumptive period under which the theories of chronicity and continuity of symptomatology would apply is one year after separation from service. 38 C.F.R. § 3.307(a)(3). There was no manifestation of diabetes mellitus or hypertension within this timeframe and accordingly an award of service connection on a presumptive basis is not warranted here. Indeed, as noted above, the earliest recorded indication of a disability related to each of diabetes mellitus and hypertension come from an August 2008 VA assessment. 10/03/2008, Medical Treatment Record – Government Facility, at 17. Similarly, an award of service connection solely based on continuity, as permitted under Walker, is not supported in this case. 708 F.3d at 1338-40.

The remaining question for consideration is whether any current hyperthyroidism, prostate cancer, diabetes mellitus, or hypertension is related by competent evidence to the Veteran’s service, to include any exposure to an herbicide agent. The Board finds that the weight of the probative competent evidence is against finding a causal relationship between his service and any of his current hyperthyroidism, prostate cancer, diabetes mellitus, and hypertension.

The Veteran’s service treatment records, including his September 1961 separation examination, show no treatment, complaints, or manifestations of hyperthyroidism or any other thyroid disorder, of prostate cancer, of diabetes mellitus, or of hypertension or any other cardiovascular-renal disease. E.g., 08/24/2006, STR – Medical, at 5-6 (report of medical examination dated September 1961). Although the Veteran has contended that his disabilities were incurred coincidental to the active tour of duty (e.g., 11/10/2011, Correspondence, at 1), the service treatment records do not reflect so, and no military records reflect any injury or event leading to symptoms of hyperthyroidism or any other thyroid disorder, of prostate cancer, of diabetes mellitus, or of hypertension or any other cardiovascular-renal disease.

The Board also notes that although the Veteran contends exposure to an herbicide agent at Shemya Air Force Base in Alaska (later renamed to Eareckson Air Station), the AOJ found no information that corroborates the Veteran’s exposure to an herbicide agent. 02/09/2017, VA Memo; 10/29/2012, VA 21-3101 (Request for Information), at 1.

VA has a duty to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).

A veteran’s reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006).

In this case, the Board finds that the evidence is insufficient to provide an examination for any of the Veteran’s hyperthyroidism, prostate cancer, diabetes mellitus, or hypertension. The service treatment records are negative for all four of these claimed disabilities, and in the absence of evidence of herbicide exposure there is no evidence that the disabilities may be related to service. Furthermore, while the representative states that the Veteran described a continuity of symptomatology for his claimed disabilities during the December 10, 2015 telephone conversation (01/12/2016, IHP, at 6), as explained above, the evidence in the claims file does not show this continuity of symptomatology, and the symptoms that the Veteran described to the representative were not provided. Therefore, the Board cannot make a finding that the evidence shows a continuity of symptomatology that is sufficient to meet the McLendon requirements.

Given the foregoing, the Board finds that the preponderance of the evidence is against a finding of nexus to service for any of hyperthyroidism, prostate cancer, diabetes mellitus, and hypertension. As such, an award of service connection is not warranted in this case for hyperthyroidism, prostate cancer, diabetes mellitus, or hypertension.

III. Increased Ratings: Scars on the Lower Extremities

A. Legal Principles

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. pt. 4. The percentage ratings are based on the average earning capacity impairment as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

In determining the propriety of the initial disability rating assigned after a grant of service connection, the evidence since the effective date of the award must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct periods during the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

As noted above, the Veteran is competent to report symptoms observable by his senses. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

B. Rating Criteria

The Veteran is presently service connected for a scar on his right lower extremity and a scar on his left lower extremity. He has been evaluated at a noncompensable level under diagnostic code 7802, which accounts for superficial, nonlinear burn scars or scars due to other causes, not of the head, face, or neck. 38 C.F.R. § 4.118. Under diagnostic code 7802, such scars with an area or areas of 144 square inches (929 square centimeters) warrant a maximum 10 percent disability rating. Id. A superficial scar is one not associated with underlying soft tissue damage. Id. (DC 7802, note (1)). If multiple nonlinear, superficial scars that are not located on the head, face, or neck are present, or if one such scar affects more than one extremity, or one such scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or one such scar affects both the anterior portion and the posterior portion of the trunk, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity, a separate evaluation is assigned based on the total area of the qualifying scars that affect the anterior portion of the trunk, and a separate evaluation is assigned based on the total area of the qualifying scars that affect the posterior portion of the trunk. Id. note (2). The midaxillary line on each side separates the anterior and posterior portions of the trunk. Id. Separate evaluations under 38 C.F.R. § 4.25. Id.

Diagnostic code 7804 accounts for unstable or painful scars. Id. (DC 7804). Under diagnostic code 7804, one or two scars that are unstable or painful are granted a 10 percent disability rating. Id. Three or four scars that are unstable or painful are given a 20 percent disability rating. Id. Five or more scars that are painful or unstable are compensated by a 30 percent disability rating. Id. If one or more scars are both unstable and painful, an additional 10 percent is added to the evaluation given based on the total number of scars. Id. note (2). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. note (1). Scars evaluated under diagnostic codes 7801, 7802, or 7805 may also receive an evaluation under diagnostic code 7804, when applicable. Id. note (3).

C. Analysis

During the period on appeal, the Veteran underwent two VA examinations for his scars in June 2013 and July 2016.

At the June 2013 examination, the examiner noted that each of the Veteran’s scars was superficial and nonlinear. 06/27/2013, VA Examination, at 10-11. Each scar was measured to be 2 square centimeters (about 0.31 square inches). Id. Neither scar was reported as painful. Id. at 7.

At the July 2016 VA examination, the Veteran complained of pain and numbness on his thighs at the scars and surrounding tissue. 07/01/2016, VA Examination, at 1. The VA examiner noted both scars as painful and hypersensitive to touch. Id. at 2. The scars were noted as superficial, nonlinear, and measuring as 2 square centimeters (about 0.31 square inches) each.

According to the informal hearing presentation filed by the Veteran’s representative, in a phone conversation on December 10, 2015 the Veteran complained that the scars on his legs were painful and affected his ability to walk. 01/12/2016, IHP, at 6-7.

Per the June 2013 and July 2016 VA skin examinations, throughout the period on appeal the area of each of the two nonlinear, superficial scars measured to 2 square centimeters (about 0.31 square inches), which is less than the requisite 144 square inches (929 square centimeters) warranting a 10 percent disability evaluation under diagnostic code 7802. 38 C.F.R. § 4.118. Because the requirements for a compensable evaluation under diagnostic code 7802 are not met for either scar, a noncompensable evaluation is to be assigned under that diagnostic code. Id. § 4.31.

Based on the Veteran’s December 10, 2015 complaint of pain on his legs and the corroborating VA examination in July 2016, the Board finds that the Veteran’s two scars combined approximate the criteria for a single, 10 percent disability rating under diagnostic code 7804. This disability rating is effective December 10, 2015, the earliest date showing a factual basis for a separate rating for painful scars; the June 2013 examination expressly indicates that neither scar was painful at the time. 06/27/2013, VA Examination, at 7. A disability rating of 20 percent under diagnostic code 7804 is not warranted because the Veteran does not have more than two painful or unstable scars.

ORDER

Service connection for a thyroid disorder, to include hyperthyroidism and to include as secondary to exposure to an herbicide agent, is denied.

Service connection for prostate cancer, to include as secondary to exposure to an herbicide agent, is denied.

Service connection for diabetes mellitus, to include as secondary to exposure to an herbicide agent, is denied.

Service connection for hypertension, to include as secondary to exposure to an herbicide agent, is denied.

An initial compensable disability rating for a scar on the right lower extremity prior to December 10, 2015 is denied.

An initial compensable disability rating for a scar on the left lower extremity prior to December 10, 2015 is denied.

A single initial disability rating of 10 percent for scars on the right and left lower extremities from December 10, 2015 is granted.

REMAND

The Board finds that additional development is necessary before it can adjudicate the issues of entitlement to service connection for a pinguecula, entitlement to service connection for an acquired psychiatric disorder, entitlement to an initial compensable disability rating for residuals of bronchopneumonia, and entitlement to an initial compensable disability rating for defective vision.

With respect to the issue of entitlement to service connection for a pinguecula, a VA eye examination was conducted in July 2016. The VA examiner provided a negative nexus opinion. However, the VA examiner erroneously stated that there is no mention of a pinguecula of the Veteran’s eyes in the service treatment records. The Board notes, however, that the service treatment records do show a diagnosis of pinguecula of the right eye in September 1956. 01/14/2015, STR – Medical, at 12. In light of this, the Board finds that the July 2016 VA eye examination is not adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-12 (2007) (noting that the Board had erred in failing to ensure a VA examination was adequate). Accordingly, the Board finds that an addendum is necessary in order for the VA examiner to consider the September 1956 pinguecula when providing a nexus opinion. As the Board is remanding the issue of entitlement to service connection for a pinguecula, the matter of entitlement to an initial compensable disability rating for defective vision must be remanded because the claims are intertwined.

With respect to the issue of entitlement to service connection for an acquired psychiatric disorder, a VA psychological examination was conducted in June 2013 and an addendum opinion was provided in July 2016. The Board notes that the Veteran was evaluated under the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (Am. Psychiatric Ass’n 4th ed.) (1994) (DSM-IV). 06/27/2013, VA Examination, at 46. Effective August 4, 2014, VA promulgated an interim final rule regarding the use of the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (Am. Psychiatric Ass’n 5th ed.) (2013) (DSM-5) with regard to all applications for benefits relating to mental disorders. Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 70 Fed. Reg. 45,093 (Aug. 4, 2014) (codified at 38 C.F.R. pt. 3-4). Specifically, this rulemaking updated 38 C.F.R., parts 3 and 4, including 38 C.F.R. § 4.125, to conform to the DSM-5 because the DSM-IV had been rendered outdated upon the publication of the DSM-5 in May 2013. Id. at 45,094. The rulemaking included an applicability date of August 4, 2014, providing that

[t]he provisions of this interim final rule shall apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after the effective date of this interim final rule. The Secretary does not intend for the provisions of this interim final rule to apply to claims that have been certified for appeal to the Board of Veterans’ Appeals or are pending before the Board of Veterans’ Appeals, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit.

Id. (emphasis added). In this case, the Veteran’s appeal was certified to the Board in July 2015. In light of this, the Board finds that the June 2013 VA psychological examination, along with the accompanying July 2016 addendum, is not adequate for adjudication purposes. See Barr, 21 Vet. App. at 310-12. Accordingly, the Board finds that an additional VA examination is necessary in order for the VA examiner to evaluate the Veteran under the DSM-5.

With respect to the issue of entitlement to an initial compensable disability rating for residuals of bronchopneumonia, a VA respiratory examination was conducted in July 2016. The examination included a pulmonary function test (PFT). 07/14/2016, VA Examination (SAN JUAN VAMC Exam Results (respiratory)), at 7. The Board notes that the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) test is not of record under the PFT results. Id. The VA examiner indicated “Other” as the reason for the DLCO (SB) testing not being completed. The regulations provide that if the DLCO (SB) test is not of record, the examiner must state why the test would not be useful or valid. 38 C.F.R. § 4.96(d)(2). The Board finds that the notation of “Other” is not an explanation of why the test would not be useful or valid, particularly since a prior June 2013 VA respiratory examination noted that the DCLO test result most accurately reflected the Veteran’s disability level (06/27/2013, VA Examination, at, at 38). In light of this, the Board finds that the July 2016 VA respiratory examination is not adequate for adjudication purposes. See Barr, 21 Vet. App. at 310-12. Accordingly, the Board finds that an additional VA examination is necessary in order for the VA examiner to conduct a PFT that includes the DLCO (SB) test or to state with specificity why the test would not be useful or valid.

Additionally, on remand, any other outstanding, pertinent VA treatment records should be obtained.

(This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Obtain and associate with the claims file any outstanding, pertinent VA treatment records from August 2017 to the present. Additionally, notify the appellant that he may submit any relevant VA and private treatment records in his possession to VA.

2. After all development has been completed and returned from step 1 above, request the VA examiner who conducted the July 2016 VA eye examination to review the claims file. If the July 2016 VA examiner is unavailable, then another appropriate licensed optometrist or licensed ophthalmologist should be requested to review the claims file. The clinician is asked to review the claims file to become familiar with the pertinent medical history. If the clinician finds it necessary to conduct a new examination, then schedule such an examination for the Veteran. After reviewing the claims file (and conducting an additional examination, if necessary), the clinician is to address the following:

a. Is any pinguecula shown or treated at any time during the claim period (from November 2011 to the present) at least as likely as not (50 percent or greater probability) related to active service? If so, it does the pinguecula manifest as conjunctivitis or disfigurement, if either?

Consider all lay and medical evidence, to include the in-service diagnosis of pinguecula of the right eye in September 1956. Consider also the October 2012 and July 2016 VA eye examinations as well as the August 2010 opinion from the Veterans Health Administration.

Provide a clear and comprehensive rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.

3. After all development has been completed and returned from step 1 above, schedule the Veteran for an examination of his acquired psychiatric disability. (If the Veteran fails to report to the examination, then have an appropriately qualified VA examiner answer the questions below.) The examiner is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following:

a. Is any acquired psychiatric disability shown or treated at any time during the claim period (from November 2011 to the present) at least as likely as not (50 percent or greater probability) related to active service,? If not, does the record at least as likely as not (50 percent or greater probability) show that any psychosis manifested within one year of the Veteran’s separation from service in October 1961?

The examiner should comment on whether the Veteran meets diagnostic criteria under the DSM-5 criteria only.

Consider all lay and medical evidence, to include the June 2013 VA psychological examination and the July 2016 addendum. Consider also the Veteran’s contention that his depression is due to the death of his fellow servicemen due to an airplane crash in service, as well as his reports of sadness ever since discharge from service.

Provide a clear and comprehensive rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.

4. After all development has been completed and returned from step 1 above, schedule the Veteran for an examination as to assess the current severity of his bronchopneumonia. The examination should be conducted in accordance with the current disability benefits questionnaire or examination worksheet. If the DLCO (SB) test is not included in the PFT, the examiner must state why the test would not be useful or valid.

Moreover, the examiner should review the prior July 2016 VA respiratory examination and opine as to whether the DLCO (SB) measurements would have been similar if taken at the time of that prior examination and if not, how they would have differed.

Consider all medical records, including the July 2013 and July 2016 VA examinations. Consider also all VA and private medical records.

5. After all development has been completed and returned from all steps above, if any benefit sought remains denied, then issue a supplemental statement of the case with consideration to all pertinent evidence, and return the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and arguments on matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam).

Remanded claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the U.S. 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.

______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs

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