Citation Nr: 1427733
Decision Date: 06/18/14 Archive Date: 06/26/14
DOCKET NO. 10-06 071 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
1. Whether new and material evidence has been received to reopen a claim of service connection for a left ankle disability.
2. Entitlement to service connection for a left knee disability.
3. Entitlement to service connection for a right knee disability.
4. Entitlement to service connection for a lung disability.
5. Entitlement to service connection for a right shoulder disability.
6. Entitlement to service connection for a right hip disability.
7. Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD).
8. Entitlement to a rating in excess of 10 percent prior to February 9, 2012 for degenerative disc disease of the lumbosacral spine with lumbar strain.
9. Entitlement to a rating in excess of 20 percent since February 9, 2012 for degenerative disc disease of the lumbosacral spine with lumbar strain.
10. Entitlement to a rating in excess of 10 percent for evulsion fracture of the left hip.
11. Entitlement to a rating in excess of 10 percent for stress headaches.
12. Entitlement to a rating in excess of 30 percent for irritable bowel syndrome.
13. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
Appellant represented by: Paul M. Goodson, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant & Spouse
ATTORNEY FOR THE BOARD
Jarrette A. Marley, Associate Counsel
The Veteran had active service from July 1981 to July 1984 and from July 1985 to May 1993, including service in the Southwest Asia theater of operations.
These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO) that, in part, granted an increased 10 percent rating for the Veteran’s service-connected left hip disability, effective December 14, 2007 (date of claim). These matters were previously before the Board in August 2013 when they were remanded to afford the Veteran a hearing.
The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing in March 2014; a transcript of the hearing is associated with the claims file. At the hearing, the Veteran raised a claim for TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Such is not a separate claim, but a part of the claim on appeal.
The issues of service connection for a left ankle disability, a right shoulder disability, a right knee disability, a left knee disability, a lung disability, and a right hip disability, increased ratings for the lumbosacral spine and the left hip, and entitlement to a TDIU rating, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Sleep apnea had its onset in service.
2. Resolving all reasonable doubt in the Veteran’s favor, throughout the appeal period, the Veteran’s stress headaches have been manifested by characteristic prostrating attacks occurring at least once a month over several months.
3. Resolving all reasonable doubt in the Veteran’s favor, throughout the appeal period, the Veteran’s irritable bowel syndrome is manifested by daily abdominal pain, diarrhea, constipation, and impairment of sphincter control; complete loss of sphincter control is not shown at any time during the appeal period.
CONCLUSIONS OF LAW
1. The criteria for establishing entitlement to service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).
2. Throughout the appeal period, the criteria for a 30 percent rating, but no higher, for stress headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100 (2013).
3. Throughout the appeal period, the criteria for a 60 percent rating, but no higher, for irritable bowel syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.113, 4.114, Diagnostic Codes 8873-7319, 7332 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).
In this case, the Board finds that service connection is warranted for the Veteran’s sleep apnea, and that a 30 percent rating is warranted for the Veteran’s service-connected headaches. At the March 2014 videoconference hearing, the Veteran testified that a 30 percent would satisfy his appeal. As this represents a complete grant of the benefits sought on appeal, no discussion of VA’s duty to notify and assist is necessary.
Regarding the Veteran’s claims for an increased rating for his irritable bowel syndrome, in a claim for increase, the VCAA requirement is notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA’s duties to notify and assist in the development of his claim. A January 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The letter also provided notice of the types of evidence necessary to establish a disability rating and effective date. An April 2012 supplemental statement of the case readjudicated the matter after additional development was completed. The Veteran has not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error).
VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claim has been obtained. The Veteran’s post-service VA and private treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He was also provided with VA examinations in March 2009 and February 2012.
The Board finds that the March 2009 and February 2012 VA examination reports are adequate for evaluation purposes because the examiners conducted a clinical evaluation, elicited the Veteran’s reported symptomatology, and described the disability in sufficient detail so that the Board’s evaluation of the d
isability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).
The Veteran was also afforded a hearing before the undersigned Veterans Law Judge (VLJ) at which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the March 2014 hearing, the VLJ posed relevant questions, discussed the evidence of record and sought to identify pertinent evidence that was not of record. In so doing, the VLJ informed the Veteran and his attorney of the issues on appeal, the basis of the prior determination and the elements of the claim that were lacking. A review of the record reveals no assertion, by the Veteran or his attorney, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the VLJ complied with the duties set forth in Bryant and the Board can adjudicate the claim based on the current record.
Further, the Veteran has not alleged, nor does the record show, that his service-connected irritable bowel syndrome has worsened in severity since the most recent examination. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).
As the Veteran has not identified any additional evidence pertinent to his claim, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertake to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board’s adjudication of his claim.
B. Legal Criteria, Factual Background and Analysis
Initially, the Board notes that it has reviewed all of the evidence in the Veteran’s claims file and in VA’s electronic data storage system with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).
Service Connection Claim – Sleep Apnea
Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).
Establishing service connection generally requires medical or, in certain circumstances, lay 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).
Additionally, under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires sufficient evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability.
In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.
The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).
The Veteran asserts that his sleep apnea is related to his active duty service, to include as secondary to his PTSD.
The Veteran’s service treatment records are silent for complaints, findings, treatment or diagnosis relating to sleep apnea, including on August 1992 Medical Evaluation Board examination report, except for a notation of a complaint of frequent trouble sleeping.
Post-service treatment records include a January 2004 VA treatment record noting the Veteran has night-time snoring. A June 2004 record noting the Veteran’s complaint of obstructive sleep apnea. The Sleep Center private treatment records shows that after sleep evaluation studies, in October 2004, the Veteran was diagnosed with obstructive sleep apnea.
In May 2012 correspondence, the Veteran’s spouse stated that the Veteran’s snoring began shortly after his return from his service in the Southwest Asia theater of operations, and that his symptoms included him gasping for air as if he could not breath.
At the March 2014 videoconference hearing, the Veteran stated that he first started his severe snoring during his second period of active service. In addition, the Veteran’s spouse testified that his symptoms began after his service in the Southwest Asia theater of operations and that they have continued ever since.
While there is no evidence of a diagnosis of sleep apnea in service, the Veteran has presented evidence of recurrent symptoms since service. Specifically, lay statements from his spouse state that his symptoms began shortly after his return from the Southwest Asia theater of operations during his second period of active duty. The Veteran and his spouse competently testified that his sleep apnea symptoms have been continuous since service. Layno, 6 Vet. App. at 470.
The Board finds that the Veteran’s reports of recurrent sleep apnea symptoms since service are consistent with the lay statements of his spouse and finds the accounts credible. The lay reports are also consistent with the Veteran’s August 1992 Medical Evaluation Board examination report that noted his complaint of frequent trouble sleeping. Thus, the Board finds these reports credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996).
The Board finds that the competent and credible lay evidence shows a continuity of sleep symptoms since service. As such, in light of the diagnosis of sleep apnea in postservice treatment records, the Board finds that service connection is warranted for sleep apnea. 38 C.F.R. § 3.303(a). As the Board is granting the Veteran’s claim on a direct service connection theory basis, there is no need for the Board to consider his secondary theory of entitlement (i.e., sleep apnea due to PTSD).
Increased Rating Claims
Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1.
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the 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 the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.
Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).
Historically, a July 1993 rating decision granted service connection for stress headaches, and assigned a 10 percent rating effective from May 11, 1993. The Veteran’s headaches are rated under Diagnostic Code 8100, which provides that migraine headaches resulting in characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraines resulting in characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100.
On February 2009 VA examination, the Veteran reported having headaches three times a week that last one to three days. He described the headaches as being both sharp and dull, initiated by discomfort in his neck, and sometimes associated with nausea. He indicated he cannot drive when he has a severe headache, and he has prostrating headaches that prevent him from working about three times per month.
On February 2012 VA examination, the Veteran reported he experiences headaches which he associates with neck pain, typically lasting one to two days. He stated he has a little nausea with some of his headaches. The examiner noted that the Veteran does not have characteristic prostrating attacks of migraine headache pain, or very frequent prostrating and prolonged attacks of migraine headache pain.
At the March 2014 videoconference hearing, the Veteran testified that he experiences prostrating headaches approximately four times per month, requiring him to lie down in a quiet, dark room. He also stated that he is sensitive to light and sound when he has a headache.
After a review of the evidence of record, resolving all reasonable doubt in the Veteran’s favor, the Board finds that a 30 percent rating is warranted throughout the appeal period for the Veteran’s headaches. The record shows that the Veteran has at least three headaches per week, with a prostrating headache almost once per week. Based on the foregoing, the Veteran’s symptoms are consistent with a 30 percent rating for migraine headaches. As noted above, at the March 2014 hearing, the Veteran testified that the award of a 30 percent rating would completely satisfy his appeal. Consequently, there is no need to discuss whether the Veteran’s stress headaches warrant a rating in excess of 30 percent.
Irritable Bowel Syndrome
Historically, the Veteran was awarded service connection for posttraumatic stress headaches in a July 1993 rating decision, rated 10 percent disabling, effective May 11, 1993. The Veteran’s stress headaches disability is rated under Diagnostic Codes 8873-7319. Under Diagnostic Code 7319, a (maximum) 30 percent rating is warranted for symptoms that are severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114.
Following a thorough review of the claims file, the Board finds that Diagnostic Code 7332, which rates impairment of sphincter control of the rectum and anus is also applicable in this case. Diagnostic Code 7332 provides a 30 percent rating for occasional involuntary bowel movements or impairment of sphincter control necessitating the wearing of a pad. A 60 percent rating is warranted for extensive leaking due to impairment of sphincter control and fairly frequent involuntary bowel movements. A (maximum) 100 percent rating is assigned for complete loss of sphincter control. 38 C.F.R. § 4.114.
On March 2009 VA examination, the Veteran reported he experiences persistent diarrhea (one to four times daily) and uncontrollable urges, along with abdominal pain and intermittent constipation. The Veteran also complained of excessive flatulence. He indicated his bowel movements have been more frequent. On physical examination, there was no evidence of significant weight loss or malnutrition, anemia, fistula, abdominal mass, or abdominal tenderness.
On February 2012 VA examination, the Veteran reported he experiences diarrhea every day, as well as constipation once about every two weeks (lasting one to five days). It was noted by the examiner that the Veteran experiences more or less constant abdominal distress. There was no evidence of weight loss, weight loss, or other general health effects attributable to his irritable bowel syndrome.
At the March 2014 videoconference hearing, the Veteran testified he experiences abdominal pain, constipation lasting up to a week at a time, and diarrhea. He further stated that sometimes he makes it to the bathroom, and sometimes he does not. He indicated he averages five to seven stools per day.
Based on the foregoing, resolving all reasonable doubt in the Veteran’s favor, the Board finds that a 60 percent disability rating is warranted for his irritable bowel syndrome with fecal incontinence for the entire appeal period under Diagnostic Code 7332 due to anal sphincter control dysfunction. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. However, a rating of 100 percent is not warranted under Diagnostic Code 7332 as the Veteran does not have complete loss of sphincter control. The Board has considered additional diagnostic codes, however, a rating higher than 60 percent is not warranted for his irritable bowel syndrome as the Veteran does not suffer from symptoms that would allow a higher disability rating under any other pertinent diagnostic code.
Finally, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, as to his irritable bowel syndrome and stress headaches, the medical evidence fails to show anything unique or unusual about the Veteran’s disabilities. While the disability undoubtedly causes some impairment, no symptoms have been described that would render the schedular criteria inadequate. The Board does not find that the Veteran’s stress headaches and irritable bowel syndrome interfere with his work beyond the interference contemplated by the currently assigned 30 and 60 percent ratings. The functional loss noted and self-reported by the Veteran is fully contemplated by the schedular criteria. See 38 C.F.R. § 4.1. Thus, referral for consideration of an extraschedular rating is not warranted.
Service connection for sleep apnea is granted.
Subject to the laws and regulations governing monetary benefits, a rating of 30 percent, and no more, for stress headaches throughout the appeal period is granted.
Subject to the laws and regulations governing monetary benefits, a rating of 60 percent, and no more, for irritable bowel syndrome throughout the appeal period is granted.
Regarding the Veteran’s claims for service connection for left ankle, right shoulder, right knee, left knee, lung, and right hip disabilities, the Board notes that the Veteran indicated at the March 2014 pre-conference hearing that he was withdrawing those issues. However, such withdrawal is not officially of record in the hearing transcript, the only reference to the withdrawal being “there are a bunch of service-connection claims that we discussed during the pre-hearing conference as well.” Despite the Veteran’s express intent to withdraw these matters, because the withdrawal is not officially of record, the Board is remanding these matters for clarification from the Veteran whether he wishes to withdraw or continue his appeal regarding these matters. See Evans v. Shinseki, 25 Vet. App. 7, 14 (2013) (stating that it must be clear the appellant wishes to limit his appeal to certain issues); see also 38 C.F.R. § 20.204.
In regards to the Veteran’s claim for an increased rating for his lumbosacral spine and left hip disabilities, he was last afforded a VA examination in February 2012. At the March 2014 hearing, the Veteran testified that his lumbosacral spine has worsened since the prior VA examination. Based on the Veteran’s testimony and the period of time since his last VA examination, VA is required to afford a contemporaneous VA examination to assess the current nature, extent and severity of the Veteran’s lumbosacral spine and left hip disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Thus, the Board has no discretion and must remand these matters.
As noted above, when evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the record suggests that the Veteran’s service-connected disabilities affect his ability to work. Accordingly, the issue of entitlement to TDIU has been raised by the evidence of record in this case. While the Board has jurisdiction over such issue as part and parcel of the Veteran’s disability rating claim, further development is necessary for an appropriate adjudication of the TDIU aspect of such claim. The Board also notes that at the March 2014, the Veteran raised the matter of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). This issue is inextricably intertwined with the TDIU claim, and appellate consideration of TDIU is deferred pending resolution of the increased rating claims still on appeal and his service connection claim for a psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim).
Finally, any additional, pertinent VA treatment records should either be made accessible in an electronic file or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran’s pertinent medical history).
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran adequate notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation as to the information or evidence needed to establish a claim for TDIU and service connection for an acquired psychiatric disorder, to include PTSD.
2. Provide the Veteran a letter seeking clarification in regards to whether he wishes to withdraw his appeals for service connection for left ankle, right shoulder, right knee, left knee, lung, and right hip disabilities, as he indicated at the March 2014 pre-hearing conference. The RO should obtain express clarification from the Veteran regarding these matters.
3. Obtain all VA and private treatment records related to the Veteran’s lumbosacral spine and left hip disabilities and associate those records with the claims file.
4. Notify the Veteran he may submit lay or medical evidence addressing the nature, symptoms and severity of his service-connected disabilities (to include his lumbosacral spine and left hip) and the impact of the conditions on his ability to work.
He should also be invited to submit statements from himself and others who have first-hand knowledge of the nature and extent of his in-service and post-service psychiatric symptoms, as well as any relationship between his psychiatric disorder and his service.
The Veteran should be given a reasonable period of time to respond.
5. After the above development has been completed, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected lumbosacral spine and left hip disabilities. The claims folder should be made available to the examiner for review. Any appropriate diagnostic testing should be conducted and noted in the report. The examiner should expressly opine whether it is at least as likely as not that the Veteran has neurological manifestations of his lumbosacral spine disability, particularly in his left lower extremity as indicated on February 2012 VA examination. Any such manifestations should be identified, and the examiner should describe in detail the nature and severity of symptoms (and associated functional impairment) associated with each such manifestation.
As regards neurological manifestations, the examiner should discuss the nature and severity of any right or left-sided radiculopathy or neuropathy found to be present.
The examiner must also state whether the Veteran has bowel or bladder problems related to his low back disability.
The examiner must also opine as to whether, without regard to the Veteran’s age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation.
A complete rationale for all opinions expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation.
6. Then adjudicate whether higher and/or separate ratings are warranted for the Veteran’s lumbosacral spine and left hip disabilities (to include separate ratings for neurologic manifestations of the lumbosacral spine). Thereafter, readjudicate his lumbosacral spine and left hip disability claims and consider whether service connection for an acquired psychiatric disorder or entitlement to TDIU is warranted. If the benefits sought on appeal are not granted in full, the Veteran should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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. 2013).
STEVEN D. REISS
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs