Citation Nr: 1240772 Decision Date: 11/29/12 Archive Date: 12/05/12 DOCKET NO. 08-16 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right elbow disability. 2. Entitlement to service connection for pharyngitis. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for a left shoulder disability. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for hypertension, to include as secondary to sleep apnea. 7. Entitlement to service connection for a right foot disorder. 8. Entitlement to service connection for bowel and bladder incontinence, to include as secondary to a service connected cervical spine disability. 9. Entitlement to an initial rating in excess of 10 percent for a left knee disability. 10. Entitlement to an initial rating in excess of 10 percent for a right shoulder disability. 11. Entitlement to an initial rating in excess of 10 percent for sinusitis. REPRESENTATION Appellant represented by: Nancy Foti, Attorney ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to March 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of May, July, and August 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. The Veteran was afforded an April 2011 Central Office hearing before the undersigned. A hearing transcript is associated with the record. In August 2011, the Board, in pertinent part, denied service connection for a right elbow disability, pharyngitis, and a low back disability and denied higher initial ratings for left knee and right shoulder disabilities and sinusitis. The issues of service connection for left shoulder disability, right knee disability, hypertension, right foot disorder, and bowel and bladder impairment were all remanded for additional development. In September 2011, the Veteran submitted a request for reconsideration, which was subsequently withdrawn and dismissed by the Board in November 2011. The Veteran appealed the portion of the August 2011 Board decision that denied the right elbow, pharyngitis, low back, sinusitis, left knee, and right shoulder claims to the United States Court of Appeals for Veterans' Claims (Court). Before the Court issued a decision, the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (Joint Motion), which was granted by the Court in January 2012. The Joint Motion vacated the August 2011 Board decision to the extent that it denied service connection for a right elbow disability, pharyngitis, and a low back disability, and denied higher initial ratings for sinusitis, left knee, and right shoulder disabilities. The matters have been returned to the Board for adjudication consistent with the Joint Motion. In April 2012, the Veteran expressed her desire to pursue claims for service connection for renal and hepatic disorders. The issues of service connection for renal and hepatic disorders have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Virtual VA paperless claims processing system does not include any pertinent documents that are not already associated with the physical claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A remand by the Court or Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Court or Board is not complied with, the Board itself errs in failing to insure compliance. Id. at 270-71. The Board's previous remand sought to obtain clarification from Dr. C.N.B. regarding his April 2011 medical opinion. In this regard, Dr. C.N.B. submitted a September 2011 letter. The remand also requested clarification from the Veteran as to whether she wanted to file a separate service connection claim for renal and/or hepatic disability, which was accomplished in an April 2012 letter from the RO/AMC. The remand further instructed the RO/AMC to furnish VA examinations for the claimed hypertension, right foot disorder, and bowel and bladder impairment and to readjudicate all the remanded issues by issuing a Supplemental Statement of the Case (SSOC). However, the requested examinations and readjudications have yet to be performed and these claims are remanded to furnish the necessary VA examinations and appropriate readjuciation by the RO/AMC. Id. Furthermore, with respect to the issues of service connection for left shoulder and right knee disabilities, Dr. C.N.B.'s September 2011 letter suggests that they may be related to service connected right knee and left shoulder disabilities. In light of the recently submitted evidence, an additional VA examination is necessary to determine whether the Veteran has a left shoulder and/or right knee disability secondary to her service connected left knee and right shoulder disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additional development is necessary to comply with the Joint Motion remand instructions. Specifically, the Joint Motion determined that the Veteran had not been afforded an adequate VA examination for her right shoulder disability. The VA examination report of record did not adequately quantify her complaints about functional loss during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). The Joint Motion also determined that a VA examination was necessary to adjudicate the claim for service connection for pharyngitis. The Board remands both of these issues for VA examinations as described in the instructions below. Stegall, 11 Vet. App. at 271. Regarding the higher initial ratings for a left knee disability, the record contains conflicting evidence concerning the occurrence of pertinent symptoms. The Veteran has provided subjective reports of instability and Dr. C.N.B.'s November 2007 findings support her assertion. However, VA examination reports from June 2007 and April 2010 include negative clinical findings for instability. At her April 2011 hearing, the Veteran testified as to experiencing knee locking. In September 2012, the Veteran's representative further asserted that the evidence also shows locking of the left knee. Therefore, an updated VA examination is needed to address the discrepancy and current status of her left knee disability. During the examination, the examiner must consider the Veteran's reports of left knee instability and subluxation and state whether there is any clinical evidence to support her reports. Turning to the increased rating for sinusitis, there are varying reports as to its frequency and severity. In June 2007, the Veteran reported having eight episodes of sinusitis annually. At the March 2010 VA/QTC examination, she reported having six incapacitating sinusitis episodes per year. The clinical examination was negative for sinusitis, but at the hearing she reported that her antibiotic medication caused it to go into remission. Her recent treatment history includes five visits over the period from May 2008 to March 2010 for acute sinusitis and does not indicate that any healthcare provider recommended bedrest as part of treatment. See 38 C.F.R. § 4.97, General Rating Formula for Sinusitis, Note. A VA examination is needed to confirm her history of sinusitis, its severity, and current symptoms. For the claimed low back and right elbow disabilities, the Veteran has not been afforded a VA examination. Service treatment records include multiple complaints of low back and right elbow pain. There is conflicting evidence as to whether there is a current diagnosis for either disability. Dr. C.N.B.'s April and September 2011 letters refer to complaints of low back pain beginning in service, but do not identify a diagnosis. For the claimed right elbow disability, Dr. C.N.B.'s November 2007 letter references complaints of daily joint pain in her right elbow and a symptomatology beginning with the in-service motor vehicle accidents. Again, a clinical diagnosis is not given. Thus, VA examinations are necessary to determine whether the Veteran's complaints about low back and right shoulder pain result in a clinical diagnosis, and if so, their relationship to service. McLendon, 20 Vet. App. 79; see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part, vacated in part on other grounds sub nom.; Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) (pain, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection can be granted). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any medical treatment records for her claimed disabilities remaining on appeal and furnish appropriate authorization for the release of private medical records. Take the necessary steps to obtain all identified medical records, including updated TRICARE records beginning April 2011. Efforts to obtain records in Federal custody must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. If the Veteran fails to furnish any necessary releases for private treatment records, she should be advised to obtain the records and submit them to VA. If any requested records cannot be obtained, inform the Veteran of this fact, of the efforts made to obtain the records and of any additional efforts that will be made with regard to his appeals. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA musculoskeletal examination by an examiner with appropriate expertise for the purpose of evaluating the claimed right elbow, right foot, right knee, low back, and left shoulder disabilities. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner is asked to provide the following opinions: For the claimed right elbow and low back disabilities, the examiner should first identify all clinical diagnosis(es) for the right elbow and low back. For each identified diagnosis, he or she should then state whether it is at least as likely as not (50 percent probability or more) that it is related to the Veteran's military service, to include the in-service motor vehicle accidents. The examiner must note the extensive treatment history for low back pain documented in service treatment records. With respect to the right foot disability, the examiner should state whether it is at least as likely as not (50 percent probability or more) that such right foot disability is causally related to her military service, to include the in-service motor vehicle accident. With respect to the right knee disability, the examiner must answer the following questions as definitively as possible: a) Is it at least as likely as not (50 percent probability or more) that the Veteran's current right knee disability had its onset in service, in the case of arthritis within a year of separation (by March 1991), or is otherwise the result of a disease or injury in service, to include in-service motor vehicle accidents? (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's current right knee disability was caused (in whole or in part) by her service-connected left knee disability? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's current right knee disability was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by her service-connected left knee disability? If the Veteran's current right knee disability was aggravated by her service-connected left knee disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. The examiner is also directed to review Dr. C.N.B.'s September 2011 opinion. For the left shoulder disability, the examiner must answer the following questions as definitively as possible: a) Is it at least as likely as not (50 percent probability or more) that the Veteran's current left shoulder disability had its onset in service, in the case of arthritis within a year of separation (by March 1991), or is otherwise the result of a disease or injury in service to include in-service motor vehicle accidents? (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's current left shoulder was caused (in whole or in part) by her service-connected right shoulder disability? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's current left shoulder disability has been aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by her service-connected right shoulder disability? If the Veteran's current left shoulder disability has been aggravated by her service-connected right shoulder disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. The examiner is also directed to review Dr. C.N.B.'s September 2011 opinion. For all opinions, the examiner must provide a rationale. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, the examiner must provide a reason for doing so. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination by an examiner with appropriate expertise for the purpose of determining the nature and etiology of pharyngitis. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should then state whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed pharyngitis is causally related to the Veteran's military service. The examiner should also state whether it is at least as likely as not that any pharyngitis was caused by the Veteran's service-connected sinusitis or allergic rhinitis. If not, the examiner should then address whether any pharyngitis has been aggravated by the service-connected sinusitis or allergic rhinitis. If aggravation is found, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. The examiner is directed to review the positive opinion expressed by Dr. C.N.B. in April 2011, and the extensive treatment history for sore throat symptoms documented in service treatment records. The examiner must provide a rationale for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, the examiner must provide a reason for doing so. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination by an examiner with appropriate expertise for the purpose of determining the nature and etiology of any hypertension found to be present. Specifically, the VA examiner should address whether the Veteran currently has hypertension. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should answer all of the following questions as definitively as possible: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's current hypertension had its onset in service, within a year of separation (by March 1991) or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's current hypertension was caused (in whole or in part) by her service-connected sleep apnea? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's current hypertension has been aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by her service-connected sleep apnea? If the Veteran's current hypertension has been aggravated by her service-connected sleep apnea, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. The examiner is further asked to comment on the interrelationship between the Veteran's hypertension, post-service weight gain, and sleep apnea. The examiner must provide a rationale for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, the examiner must provide a reason for doing so. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination by an examiner with appropriate expertise for the purpose of determining the nature and etiology of any bowel and bladder impairment and its relationship to service connected cervical spine disability. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. All relevant findings should be noted, including daytime and night-time voiding frequency and whether any absorbent materials are used, and if so, how many per day. The examiner should answer all of the following questions as definitively as possible: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's current bowel and bladder impairment had its onset in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's current bowel and bladder impairment was caused (in whole or in part) by her service-connected cervical spine disability? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's current bowel and bladder impairment has been aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by her service-connected cervical spine disability? If the Veteran's current bowel and bladder impairment has been aggravated by her service-connected cervical spine disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. The examiner must provide a rationale for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, the examiner must provide a reason for doing so. 6. After any additional records have been obtained and associated with his claims folder, schedule the Veteran for a VA examination to evaluate the current severity of the service-connected left knee disability. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The ranges of left knee motion should be reported in degrees. The examiner must also provide a specific opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. The examiner must express this opinion in terms of the degree of additional range-of- motion loss (in degrees) due to any weakened movement, excess fatigability, incoordination, flare- ups, or pain. The examiner should report if there is ankylosis of the left knee and, if so, the angle at which the knee is held. The examiner should also consider any reports of left knee instability or subluxation. The examiner should report whether there is clinical evidence to support the Veteran's subjective reports of instability, subluxation, or locking. If the examiner determines that subluxation or instability of the left knee is present, he or she must provide an opinion as to its severity in terms of slight, moderate, or severe. 7. After any additional records have been obtained and associated with his claims folder, schedule the Veteran for a VA examination to evaluate the current severity of the service-connected right shoulder disability. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The ranges of right shoulder motion should be reported in degrees. The examiner must also provide a specific opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. The examiner must express this opinion in terms of the degree of additional range-of- motion loss (in degrees) due to any weakened movement, excess fatigability, incoordination, flare- ups, or pain. If the examiner is unable to estimate loss of motion during flare-ups or due to weakened movement, excess fatigability, incoordination, he or she should explain why such an estimate cannot be given. The examiner should also report whether there is (or findings equivalent too): malunion, fibrous union, nonunion (false or flail joint), loss of the head (flail joint) of the humerus. The examiner should further report whether there is malunion, nonunion with loose movement, nonunion without loose movement, or dislocation of the clavicle. 8. After any additional records have been obtained and associated with his claims folder, schedule the Veteran for a VA examination to evaluate the current severity of the service-connected sinusitis. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should comment as to the number of incapacitating episodes of sinusitis that the Veteran has experienced within the last 12-month period requiring prolonged (4-6 weeks) antibiotic treatment, as well as the frequency (in terms of number of episodes in the last year) and severity of the Veteran's non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge and crusting. Also, the examiner should note whether the Veteran has had any surgeries and continues to experience nearly continuous sinusitis symptoms, or whether the Veteran has had radical surgery resulting in chronic osteomyelitis. 9. The AOJ should review the examination reports to ensure that they contain the information and opinions requested in this remand and are otherwise complete. If the newly generated evidence suggests that the Veteran is unemployed due to service connected disabilities, inform the Veteran about the information and evidence necessary to substantiate a claim for a total disability based upon individual unemployability (TDIU) and adjudicate a claim for TDIU as part of the claims for higher initial ratings. 10. If any benefit for which a sufficient substantive appeal has been submitted remains denied, the AOJ should issue a supplemental statement of the case that readjudicates all denied issues on appeal. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).