Citation Nr: 18160530
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 09-26 987
DATE:	December 27, 2018
ORDER
Service connection for muscle loss, to include as due to an undiagnosed illness, is denied.
Service connection for fatigue, to include as due to an undiagnosed illness, is denied.
An initial compensable evaluation for burn scars of the left shoulder is denied.
An initial compensable evaluation for a left hernia scar prior to March 1, 2012, and in excess of 10 percent thereafter, is denied.
REMANDED
Entitlement to service connection for abdominal pain, currently diagnosed as gastroesophageal reflux disease (GERD) and gastritis, is remanded.
Entitlement to service connection for a lumbar spine disorder, to include lumbosacral strain, is remanded.
Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depression is remanded.
Entitlement to total disability rating based on individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. Clinical medical evidence does not reflect muscle loss or weakness.
2. The Veteran does not have a diagnosis of chronic fatigue syndrome (CFS) and his symptoms of fatigue/tiredness are not a separate or identifiable condition, but are likely symptoms of his psychiatric disability or sleep apnea.
3.  The Veteran’s burn scars of the left shoulder are stable and superficial and are not painful; they do not cover an area of at least 39 square centimeters (cm).
4. The Veteran’s abdominal scar has been stable throughout the appeals period but has caused pain since March 1, 2012; it does not cover an area of at least 39 square cm.
CONCLUSIONS OF LAW
1. The criteria for service connection for muscle loss have not been met.  38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317.
2. The criteria for service connection for fatigue have not been met.  38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317.
3. The criteria for an initial compensable evaluation for left shoulder burn scars are not met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3 4.7, 4.10, 4.118, Diagnostic Codes 7801-7805 (2008 & 2017).
4. The criteria for initial compensable evaluation for a left hernia scar prior to March 1, 2012, and in excess of 10 percent thereafter, are not met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3 4.7, 4.10, 4.118, Diagnostic Codes 7801-7805 (2008 & 2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1989 to August 1995.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans, Affairs (VA) Regional Office (RO) in Atlanta, Georgia.
The Veteran testified at a hearing before a Veterans Law Judge in November 2011. In June 2016, the Veteran was notified that the Veterans Law Judge who presided over his November 2011 hearing is no longer employed by the Board, and he was given an opportunity to request a new hearing before a sitting Veterans Law Judge pursuant to 38 C.F.R. § 20.707.  The Veteran was informed that if no response was received within 30 days from the date of the June 2016 notice letter, the Board would assume he did not want another hearing and would proceed accordingly.  VA has not received a response from the Veteran to the June 2016 notice letter; and as such, assumes the Veteran does not request another hearing.
Withdrawal of Representation
This case was originally certified to the Board in September 2010.  Subsequent to a Board remand dated in July 2016, the Veteran was sent a letter informing him that his case had been returned to the Board in March 2018.
After certification of the appeal to the Board, in July 2018, the Veteran’s attorney submitted a written Motion to Withdraw Representation, indicating that the he and the Veteran had reached an impasse in the handling of this claim.
In August 2018, the Board sent a response to the Veteran’s representative, with a copy to the Veteran, informing him that the Veteran would be permitted to file a response to the motion no later than 30 days following receipt of the motion and that the representative would be permitted to withdraw from representation only if his motion was granted by the Board.  The case was held in abeyance for 90 days.
Following certification of an appeal to the Board, a representative may not withdraw representation without good cause shown on motion. 38 C.F.R. § 20.608. A copy of the motion must be filed with the Office of the Senior Deputy Vice Chairman and sent to the Veteran, who must be provided the opportunity to respond within 30 days of receipt.  Id. 
The Veteran’s attorney sent the Motion to Withdraw Representation to the Office of the Principal Deputy Vice Chairman in July 2018, providing good cause for his withdrawal.  In the motion, the attorney stated that he sent a copy to the Veteran by first-class mail, postage prepaid.  The Veteran has not responded to this withdrawal.  Based on these circumstances, the Board finds that the requirements of 38 C.F.R. § 20.608 have been met, the withdrawal is granted, and the Veteran is recognized as proceeding without representation. 
Service Connection Claims
Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131.  Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent not later than December 31, 2021.  Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests.  See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a), (b).
A Persian Gulf Veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War.  See 38 U.S.C. § 1117(f); 38 C.F.R. § 3.317(e).  In this case, the Veteran’s service personnel records reflect that he served in the Southwest Asia theater of operations during the Persian Gulf War; as such, he is a Persian Gulf Veteran.
A “qualifying chronic disability” includes an undiagnosed illness.  See 38 C.F.R. § 3.317(a)(2).  The term “objective indications of a qualifying chronic disability” include both “signs,” in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  See 38 C.F.R. § 3.317(a)(3).
Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders.  See 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b).
With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Lay persons are competent to report objective signs of illness.  Id. at 9-10.  Symptoms, which are capable of lay observation, are presumed to be related to service, and unlike a claim of “direct service connection,” VA cannot impose a medical nexus requirement.  38 U.S.C. § 1117; 38 C.F.R. § 3.317.
Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).  To determine whether the qualifying chronic disability is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).
When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).
Muscle Loss
The Veteran contends that he has muscle loss that is due to service.  He has reported weakness in his arms, legs, and shoulders.  See March 2013 VA examination report.  He had previously worked as a personal trainer and had not been maintaining muscle mass.  He reported loss of muscle mass involving biceps, triceps, pectorals and quadriceps regions and weakness in all muscle groups.  See June 2017 VA Examination report.
The question for the Board is whether the Veteran has muscle loss that meets the criteria for a qualifying chronic disability under 38 C.F.R. § 3.317 or if he has a diagnosed disorder causing muscle loss that is related to service.  The Board concludes that the neither is the case; the Veteran does not have chronic muscle loss or any diagnosed disability causing muscle loss.  
Service treatment records do not show any evidence of muscle loss during service.  Post-service medical records do not show any muscle loss or atrophy.  VA examinations conducted in March 2013 and June 2017 reflect the examiners’ reports that there was no evidence of muscle atrophy.  The June 2017 VA examiner noted no muscle injuries affecting the Veteran’s form or function, and no cardinal signs or symptoms of muscle disability.  Muscle strength was 5/5.
Although the Veteran is competent to report his subjective perception of having experienced symptoms of weakness since service, the Veteran lacks the competence to render a diagnosis of any condition in this case, as he lacks the necessary medical experience and expertise and the presence of a chronic muscle weakness or muscle loss disability is one that is a complex medical question.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).
Thus, the Board finds the examiners’ objective findings of no muscle weakness, loss, or atrophy to be more probative than the Veteran’s contentions as the examiner is qualified to assess muscle weakness or the presence of muscle atrophy and found neither on examination (and in fact found muscle strength to be full, at 5 out of 5, with no evidence of atrophy or cardinal signs or symptoms of muscle disability).  Indeed, the examiners’ findings do not demonstrate the presence of any diagnosed muscle loss/weakness disability, any disability manifested by muscle loss or weakness that is the result of an undiagnosed illness, or any such muscle loss/weakness disability that is demonstrable of a functional impairment in earning capacity in this case.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  
Accordingly, as there is no evidence of objective signs or symptoms of muscle atrophy or weakness or muscle loss on examination throughout the appeal period, the claim for entitlement to service connection for muscle loss, due to an undiagnosed illness, must be denied based on the evidence of record at this time.  See 38 C.F.R. §§ 3.102, 3.303, 3.317; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.”); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability).
Fatigue
The Veteran has contended that he has chronic fatigue that is related to service.  The Veteran reported noticing fatigue starting in 1993 after returning from the Gulf.  He indicated that it worsened gradually over time.  He described having low energy and feeling tired all day, more so at that end of the day.  His fatigue is worse with physical activities.  He indicated that he had a work up and that it was attributed to depression.  See March 2013 VA examination report.
The question for the Board is whether the Veteran has chronic fatigue that meets the criteria for a qualifying chronic disability under 38 C.F.R. § 3.317 or is due to a diagnosed disorder.  
The Board finds that the evidence of record shows that the Veteran’s fatigue is related to his service-connected psychiatric disabilities and sleep apnea.
The Board finds that the probative medical evidence of record does not establish that the Veteran has a diagnosis of CFS.  The Veteran was provided with a VA examination in March 2013.  The examiner found that the Veteran did not meet the criteria for CFS and opined that his fatigue was likely secondary to his depression.  
The Veteran was afforded a VA examination in June 2017.  The examiner opined that the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome. He noted that the Veteran had a history of sleep apnea, depression and posttraumatic stress disorder (PTSD) with sleep impairment which can cause fatigue.   
While the Veteran has symptoms of fatigue, these are not considered a qualifying chronic disability, either as an undiagnosed illness or as a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms as per 38 C.F.R. § 3.317.  Rather, the Veteran's symptoms of fatigue have been attributed to his psychiatric disabilities and to sleep apnea by qualified medical professional, and even by the Veteran’s own statements, during the appeal period.  
Accordingly, the claim for entitlement to service connection for fatigue, include as due to an undiagnosed illness, must be denied based on the evidence of record at this time.  See 38 C.F.R. §§ 3.102, 3.303, 3.317; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.”); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability).
Increased Evaluation Claims for Scars
Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.
The Veteran seeks a higher initial rating for left shoulder burn scars and abdominal scar.  The Veteran’s left shoulder scars have been rated as noncompensable under Diagnostic Code 7802, and his abdominal scar has been rated as noncompensable prior to March 1, 2012, and as 10 percent disabling since March 1, 2012 under Diagnostic Codes 7802 and 7804.  
The Veteran was provided with a VA examination in December 2008.  The examiner noted that the Veteran had a scar located on left shoulder which was depressed measuring about 6.5 cm by 4 cm and another scar on the left shoulder which was depressed measuring about 2.5 cm by 3 cm.  The scars had disfigurement and hyperpigmentation of less than six square inches each.  There was no tenderness, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, abnormal texture, inflammation, edema, or limitation of motion.  It was also noted that the Veteran had a scar as a result of a hernia repair.  The examiner noted no pain upon palpation.  
A private examination report, dated in March 2012, is part of the record.  The examiner noted that the Veteran had a 3.5 in. by .75 in. disfigurement scar of the superior aspect of his left shoulder that was nontender with no ulcerations, adherence, instability, tissue loss, keloids, inflammation, or edema.  The Veteran also had a scar on his abdomen linked to his hernia repair that was 3.5 in. long and tender to deep palpation.  
The Veteran was provided with a VA examination in March 2013.  He reported intermittent episodes of pain and a pulling sensation at the site of the abdominal scar.  He denied any pain with the burn scars on the left shoulder. The examiner thus found that the Veteran had one painful scar.  The shoulder and hernia scars were stable.  Burn scars on his shoulder were 2.5 cm by 1.5 cm and 5 cm by 3 cm, covering 18.75 sq. cms.  The scars were hyperpigmented with numbness and were superficial.  The hernia scar on his abdomen was 6 cm by .5 cm, covering .3 sq. cms, and was superficial.    
The Veteran was provided with a VA examination in April 2017.  The examiner noted that the Veteran’s scars on his left shoulder were stable and nontender, and did not cover a total area equal to or greater than 39 sq. cm. 
Initially, the Board notes the criteria used to evaluate disabilities involving the skin were revised effective October 23, 2008.  See 73 Fed. Reg. 54710 (Oct. 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805.  In VAOPGCPREC 3-2000 (April 2003), VA’s General Counsel held that when a provision of the VA rating schedule is amended while a claim for an increased rating under that provision is pending, a determination as to whether the intervening change is more favorable to the Veteran should be made.  If the amendment is more favorable, that provision should be applied to rate the disability for periods from and after the effective date of the regulatory change.  The effective date of a liberalizing law or VA issue is no earlier than the effective date of the change.  However, none of the applicable precedent decisions or laws, regulations or General Counsel Opinions prohibits the application of a prior regulation to the period on or after the effective date of a new regulation.  Accordingly, the Board will first discuss the appropriate rating for the Veteran's scars under the criteria in effect at the time of the award of service connection.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2008).  The appropriate rating for the Veteran's scars, under the revisions that became effective October 23, 2008, will be discussed separately.
Under Diagnostic Code 7800 (2008), disfigurement of the head, face, or neck were evaluated based on characteristics of disfigurement.  This diagnostic code is inapplicable here, as the scars in question are on the Veteran’s abdomen and left shoulder.
Under Diagnostic Code 7801 (2008), scars, other than head, face, or neck, that are deep or that cause limited motion warranted a 10 percent rating if the area or areas exceed 6 sq. inches (39 sq. cm).  A 20 percent rating required an area or areas exceeding 12 sq. inches (77 sq. cm).  A deep scar is one associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7801 (2002).
The evidence of record shows the Veteran's abdominal and left shoulder scars were superficial.  In addition, the scars do not cover an area exceeding 6 sq. in. (39 sq. cm).  It was noted in a December 2008 VA examination report that the Veteran’s scars on his left shoulder were 6.5 cm by 4 cm (26 sq. cm) and another scar on the left shoulder which was depressed measuring about 2.5 cm by 3 cm (7.5 sq. cm).  As noted in the March 2013 VA examination report, the burn scars on his shoulder were 2.5 cm by 1.5 cm and 5 cm by 3 cm, covering 18.75 sq. cm, and his hernia scar on his abdomen was 6 cm by .5 cm, covering 3 sq. cm.  Thus, the Board finds the preponderance of evidence is against a finding that the Veteran’s abdominal and left shoulder scars have been assessed as deep or as exceeding an area of 12 sq. inches (77 sq. cm) at any point in the appeal period. Accordingly, a higher rating under Diagnostic Code 7801 (2008) is not warranted.
Under Diagnostic Code 7802 (2008), a maximum 10 percent rating was assigned for scars, other than the head, face or neck that are superficial, do not cause limited motion, and measure 144 sq. inches or greater.  38 C.F.R. § 4.118.  There is no evidence showing the Veteran’s scars have measured 144 sq. inches or greater.  Thus, further discussion of Diagnostic Code 7802 (2008) is unnecessary.
Diagnostic Code 7803 (2008) provided a 10 percent rating for scars that are superficial and unstable.  38 C.F.R. § 4.118.  Note (1) to Diagnostic Code 7803 (2008) defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) to Diagnostic Code 7803 defines a superficial scar as one not associated with underlying soft tissue damage.  There is no evidence showing the Veteran's abdominal or left shoulder scars have been unstable.
Diagnostic Code 7804 (2008) provided a 10 percent rating for scars that are superficial and painful on objective demonstration.  38 C.F.R. § 4.118.  The evidence shows that the Veteran has denied any tenderness or pain associated with his left shoulder scars.  However, while he denied pain associated with his abdominal scar at his December 2008 VA examination, a March 2012 private record reflected that he reported pain to palpation of his abdominal scar.  Thus, his current 10 percent rating based upon a painful scar, effective March 1, 2012, is accurate.
Under the pre-revision criteria, scars could also be rated on limitation of function of affected part under Diagnostic Code 7805 (2008).  38 C.F.R. § 4.118.  There is no evidence showing limitation of function resulting from the Veteran’s abdominal or left shoulder scars.
As previously noted, 38 C.F.R. § 4.118 was amended, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (effective Oct. 23, 2008).  The October 2008 revisions did not substantially change Diagnostic Codes 7800, 7801, 7802, and 7805.  The general rating criteria under these diagnostic codes remained intact after the October 2008 amendment of 38 C.F.R. § 4.118 with only slight revisions to the wording in each diagnostic code and the addition of Notes 4 and 5 to Diagnostic Code 7800, which is inapplicable in this case since the Veteran's scars are on his abdomen and left shoulder. 
The major revisions effectuated by the October 2008 amendment of 38 C.F.R. § 4.118 involved Diagnostic Codes 7803 and 7804.  More specifically, Diagnostic Code 7803, which was utilized to rate superficial, unstable scars, was subsumed into Diagnostic Code 7804 and essentially eliminated from the rating schedule.  Diagnostic Code 7804, which was previously utilized to rate superficial, painful scars, was amended to include progressively higher ratings based on the number of unstable or painful scars.  Note 3 to the newly amended Diagnostic Code 7804 explains that ratings under Diagnostic Codes 7800, 7801, 7802, and 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable.  The Board will provide a more detailed description of the rating criteria under each diagnostic code below.
Under the criteria that became effective October 23, 2008, Diagnostic Code 7800 (which pertains to scars on the head, face, and neck) was not changed in a manner that is outcome determinative in this case.  This diagnostic code remains inapplicable as the scars in question are not on the head, face, or neck.
Diagnostic Code 7801 provides ratings for scars that are deep and nonlinear, but the area of the scars must be at least 39 sq. cm to be compensable, and was addressed above.  A rating under the current Diagnostic Code 7801 is likewise not warranted as the scars have not been shown to be deep or at least 6 sq. inches (39 sq. cm).
Diagnostic Code 7802 provides a 10 percent rating for superficial and nonlinear scars that cover an area or areas of 144 sq. inches (929 sq. cm.) or greater.  As previously noted, the Veteran’s scars cover a total area of less than 144 sq. inches (929 sq. cm).  Thus, a compensable rating under Diagnostic Code 7802 is not warranted.
Finally, Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful.  A 20 percent rating is assigned for three or four scars that are unstable or painful.  A 30 percent rating is authorized when there are five or more scars that are unstable or painful.  The revised criteria do not include a specific requirement of pain on objective examination.  If the scars are both painful and unstable, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars.  See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 2 (2017). 
As previously noted, the Veteran's two left shoulder scars have never been found to be painful or unstable.  However, as noted above, the Veteran reported that his abdominal scar was painful in March 2012; therefore, the 10 percent rating assigned as of March 1, 2012 is appropriate. 
The Board acknowledges that the Veteran is service-connected for additional scars on his neck, and that these would be included in the rating for painful scars under the current criteria.  However, examinations in the claims file reflect the Veteran’s reports that the scars on his neck are not painful. 
As such, the Board finds that higher ratings for the Veteran’s abdominal and left shoulder scars are not warranted, and those claims are denied at this time based on the evidence of record.  See 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7800-7805 (2008 & 2017).  
REASONS FOR REMAND
As the Veteran’s abdominal pain and gastrointestinal problems have been attributed to known diagnoses of gastritis and GERD, his claim will not be considered for presumptive service connection under 38 C.F.R. § 3.317 for an undiagnosed illness.  Instead, the Board will consider his claim under direct service connection.
The Veteran was provided a VA examination in June 2017.  The examiner opined that the Veteran’s gastritis and GERD were not related to service, given that service treatment records were negative for reports of abdominal or gastrointestinal issues, and that the first evidence that the Veteran reported gastrointestinal issues was in March 2013.  However, the Board finds that this examination is inaccurate.  The Veteran has repeatedly reported that he began experiencing gastrointestinal issues and abdominal pain within a few months of leaving service.  The examiner did not address these contentions.  In addition, the examiner relied, in part, on her observation that the first time the record reflects the Veteran’s complaints of abdominal pain and gastrointestinal distress was in March 2013; however, the record includes a March 2012 letter from a private provider reflecting the Veteran’s report that he had been experiencing abdominal distress since service.  As such, this examination is not adequate.  The Veteran should be afforded another examination in order to determine whether his gastritis or GERD are related to service, and a remand is necessary in order for such to be accomplished.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise).  
Regarding the lumbar spine claim, as an initial matter, it appears that there are outstanding records pertinent to the Veteran’s claim.  The Veteran supplied a signed release form for a private chiropractor, X.A.D., M.D., and records were requested from this provider.  In early January 2018, this private chiropractor informed the VA that a release form was needed in order to provide the VA with the Veteran’s records.  It does not appear that VA responded to this letter.  Significantly, a February 2018 supplemental statement of the case reflected that treatment records from this provider had been received by VA on January 2, 2018; however, upon review of the claims file, the Board finds that the submission received by VA on this date was the letter described above.  As such, on remand, a new signed release form for this provider should be obtained from the Veteran, and treatment records should be requested from this provider.
Additionally, the Veteran’s low back pain has been attributed to lumbar stain, a diagnosed disorder.  As such, service connection under the provisions of 38 C.F.R. § 3.317 for an undiagnosed illness is not warranted, and the Board will consider direct service connection.  
In July 2016, the Board remanded the Veteran’s claim for an opinion as to whether the Veteran had a back disorder related to service.  The Board’s remand directives include instructions for the examiner to reconcile the discrepancies between the examination findings of the March 2012 independent medical examination and the March 2013 VA examination regarding the Veteran’s back.  In addition, for each back diagnosis, the examiner was asked to address the Veteran’s contention that his back pain began during service, to include during combat service in a Humvee accident and from carrying heavy packs and equipment, and that he could not seek treatment because of financial strain.  The July 2016 examiner did not reconcile the opinions of record, and did not address the Veteran’s contentions regarding service.  As such, the Veteran’s claim for entitlement to service connection for lumbar strain must be remanded for another examination and opinion that addresses these issues, in order to ensure substantial compliance with the Board’s previous remand directives.  See Id.; Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order).
Regarding his psychiatric claim, the Veteran has reported that he received treatment at a Vet Center for his psychiatric disability in 2015.  See June 2017 VA examination report.  These records are not in the claims file and should be obtained on remand and added to the record; any outstanding VA treatment records should also be obtained.  See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992); Dunn v. West, 11 Vet. App. 462, 466 (1998) (Vet Centers are considered VA facilities for the purposes of the duty to assist in obtaining records, specifically citing Bell v. Derwinski, 2 Vet. App. 611 (1992)).
Finally, the claim for TDIU is intertwined with the development ordered above, and therefore must also be remanded.  Harris v. Derwinski, 1 Vet. App. 180 (1991). 
The matters are REMANDED for the following action:
1. Obtain any and all VA treatment records not already associated with the claims file from Atlanta VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file.
2. Ask the Veteran to complete a VA Form 21-4142 for psychiatric treatment at a Vet Center in 2015.  After authorization is received, obtain any treatment records.  Document all requests for information as well as all responses in the claims file.
3. Ask the Veteran to complete a VA Form 21-4142 for the private chiropractor X.A.D., M.D. or any other release form required by the provider.  Make two requests for the authorized records from private chiropractor X.A.D., M.D., unless it is clear after the first request that a second request would be futile.
4. Ensure that the Veteran is scheduled for a VA examination in order to determine whether his gastrointestinal disorders, including gastritis and GERD, are related to service.  The claims folder must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.  
Following examination of the Veteran and review of the claims file, the examiner must opine whether any gastrointestinal disorders found, to include gastritis and GERD, at least as likely as not (50 percent or greater probability) began in or is otherwise related to his miliary service.  The examiner must address the Veteran’s reports that his abdominal pain and gastrointestinal distress began a few months after service.
In addressing the above, the examiner should consider any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset.  The examiner should also consider any other pertinent evidence of record, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
5. Ensure that the Veteran is scheduled for a VA examination in order to determine whether his lumbar spine disorder is related to service.  The claims folder must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.  
Following examination of the Veteran and review of the claims file, the examiner must opine whether any lumbar spine disorders found, to include lumbar strain, at least as likely as not (50 percent or greater probability) began in or is otherwise related to his miliary service.  
As previously directed by the Board, the examiner must reconcile the discrepancies between the examination findings of the March 2012 independent medical examination and the March 2013 VA examination regarding the Veteran’s back.  In addition, the examiner must address the Veteran’s contention that his back pain began during service, to include during combat service in a Humvee accident and from carrying heavy packs and equipment, and that he could not seek treatment because of financial strain.  The examiner is reminded that any medical opinion that does not reconcile the above as requested will not be considered to be adequate.
In addressing the above, the examiner should consider any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset.  The examiner should also consider any other pertinent evidence of record, as appropriate.  All findings should be reported in detail and all opinions must be accompanied by a clear rationale.
 
MARTIN B. PETERS
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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