Citation Nr: 1523416 Decision Date: 06/03/15 Archive Date: 06/16/15 DOCKET NO. 11-12 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a bilateral big toe disability, to include as secondary to service-connected hepatitis C. 2. Entitlement to service connection for chronic arthritis of the joints other than the cervical spine, to include as secondary to service-connected hepatitis C or service-connected diabetes mellitus type II. 3. Entitlement to service connection for a stroke and seizure disability, to include as secondary to service-connected hepatitis C or service-connected diabetes mellitus type II. 4. Entitlement to an increased rating for a low back disability, currently rated as 10 percent disabling prior to August 27, 2013, and as 20 percent disabling since August 27, 2013. 5. Entitlement to an increased rating for right lower extremity radiculopathy, currently rated as 10 percent disabling prior to August 27, 2013, and as 20 percent disabling since August 27, 2013. 6. Entitlement to an increased rating for left lower extremity radiculopathy, currently rated as 10 percent disabling prior to August 27, 2013, and as 20 percent disabling since August 27, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and July 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The April 2009 rating decision, in relevant part, denied service connection for a bilateral big toe disability. The July 2011 rating decision, in relevant part, denied service connection for chronic arthritis and a stroke and seizure disability, and continued 10 percent ratings for a low back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy. An October 2013 rating decision increased the disability rating for a low back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy, from 10 percent to 20 percent, all effective August 27, 2013. However, as these grants do not represent total grants of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran originally also appealed the issues of entitlement to service connection for diabetes mellitus type II and for left arm neuropathy. An October 2013 rating decision granted service connection for diabetes mellitus type II, effective April 29, 2008. A November 2013 rating decision granted service connection for left upper extremity peripheral neuropathy, effective April 29, 2008. That represents total grants of the benefits sought on appeal for the issues of entitlement to service connection for diabetes mellitus type II and for left arm neuropathy, and therefore, those issues are no longer before the Board. In September 2014, the Veteran testified before the undersigned at a travel board hearing. A copy of the transcript has been associated with the claims file. At the hearing, the Veteran submitted additional evidence in the form of private medical records and a lay statement. However, in a September 2014 statement, he waived initial RO consideration of the newly submitted evidence, and the Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2014). The Board notes that the RO characterized the claim for arthritis as one of service connection for chronic arthritis. However, the Board notes that the Veteran clarified at his September 2014 hearing that the primarily affected joints were his knees and feet. Additionally, the Veteran's claim for service connection for a cervical spine disability was separately denied in a February 2015 rating decision. Therefore, the Board has recharacterized the Veteran's claim as one of service connection for chronic arthritis of the joints other than the cervical spine, as reflected on the title page. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the delay, additional development is needed prior to further disposition of the claims. Regarding the big toe disability, chronic arthritis of the joints other than the cervical spine, and the stroke and seizure disability, the Veteran contends that these disabilities are secondary to his service-connected hepatitis C. The Veteran also asserts that his chronic arthritis of the joints other than the cervical spine and his stroke and seizure disability are secondary to his service-connected diabetes mellitus type II. On VA examination in December 2009, the Veteran complained of joint pain in the right big toe. He was noted to have a diagnosis of bunions for which a fusion had been planned. After examination, the examiner opined that there was no causal relationship between the joint bunion pain and hepatitis C or Interferon, the medication for hepatitis C. At a June 2011 VA examination, the Veteran answered "Unknown" regarding how his stroke and seizure disability had occurred. With respect to his foot condition, he reported that it had occurred following Interferon treatment. After examination, the examiner diagnosed the Veteran with recurrent transient ischemic attacks and degenerative joint disease of the bilateral metatarsophalangeal joints of the feet. The examiner opined that it was not at least as likely as not that the Veteran's chronic arthritis of the bilateral feet and ischemic strokes were secondary to hepatitis C and treatment for hepatitis C, including Ribavirin and Interferon. The examiner's rationale was that there was no association between arthritis and hepatitis C or treatment. He also explained that there was no association between transient ischemic attacks and hepatitis C or treatment. On VA examination in August 2013, the Veteran reported that he was first diagnosed with mini strokes, or transient ischemic attacks, when he received a CT scan for head pain and his neck. After examination, the examiner opined that the Veteran's transient ischemic attacks were less likely than not proximately due to or the result of the service-connected hepatitis C. In rendering the rationale, the examiner explained that the Veteran had been noted to have evidence of small asymptomatic infarcts in 2009 by neurology consultation in 2012. He was also noted to have been treated with alpha Interferon for hepatitis C. The examiner conducted an extensive review of the current medical literature and reported that regarding cerebrovascular disorders, ischemic and hemorrhagic cerebrovascular events had been seen. However, because those were spontaneous reports, estimates of frequency could not be made, and a causal relationship between Interferon alfa-based therapies and those events was difficult to establish. Therefore, given the inability to establish a causal relationship, the examiner concluded that it was less likely than not that the Veteran's transient ischemic attacks were due to treatment with Interferon for service-connected hepatitis C. Regarding the bilateral toe disability, the Board notes that the December 2009 examiner provided no rationale for the opinion that there was no causal relationship between the joint bunion pain and hepatitis C or Interferon. Additionally, the examiner provided no opinion regarding whether the Veteran's bilateral toe disability was aggravated by his hepatitis C. 38 C.F.R. § 3.310 (2014); Allen v. Brown, 7 Vet. App. 439 (1995). Therefore, the claims file should be returned to the December 2009 examiner, if available, in order to obtain an opinion regarding whether the Veteran's bilateral toe disability has been aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected hepatitis C. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the chronic arthritis of the joints other than the cervical spine, the Board notes that although the June 2011 examiner provided an opinion and rationale regarding whether the Veteran's chronic arthritis of the joints other than the cervical spine was due to his hepatitis C, he provided no opinion regarding whether the Veteran's chronic arthritis of the joints other than the cervical spine was aggravated by his hepatitis C, nor did he provide an opinion regarding whether the Veteran's chronic arthritis of the joints other than the cervical spine was due to or aggravated by his diabetes mellitus type II. 38 C.F.R. § 3.310; Allen, 7 Vet. App. 439. Additionally, service treatment records show that the Veteran received treatment for left leg pain in February 1970; treatment for right leg pain in June 1973; and treatment for a right ankle sprain in June 1974, August 1974, and August 1978. Post-service private and VA medical records show that the Veteran received intermittent treatment for degenerative joint disease of the knees and feet. However, the June 2011 examiner did not provide an opinion regarding whether the Veteran's chronic arthritis of the joints other than the cervical spine was directly related to his period of service. Given the above, the claims file should be returned to the June 2011 examiner, if available, in order to obtain opinions regarding 1) whether the Veteran's chronic arthritis of the joints other than the cervical spine has been aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected hepatitis C; 2) whether the Veteran's chronic arthritis of the joints other than the cervical spine is due to or aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected diabetes mellitus type II; and 3) whether the Veteran's chronic arthritis of the joints other than the cervical spine arose during service or is otherwise related to any incident of service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the stroke and seizure disability, the Board notes that although the June 2011 and August 2013 examiners provided opinions and rationales regarding whether the Veteran's stroke and seizure disability was due to his hepatitis C, they provided no opinions regarding whether the Veteran's stroke and seizure disability was aggravated by his hepatitis C, nor did they provide opinions regarding whether the Veteran's stroke and seizure disability was due to or aggravated by his diabetes mellitus type II. 38 C.F.R. § 3.310; Allen, 7 Vet. App. 439. Therefore, the claims file should be returned to the August 2013 examiner, if available, in order to obtain an opinion regarding whether the Veteran's stroke and seizure disability has been aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected hepatitis C, or whether the Veteran's stroke and seizure disability is due to or aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected diabetes mellitus type II. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was last afforded a VA examination for his low back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy in August 2013, almost 2 years ago. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Although the last examination is not unduly remote, the Veteran testified at his September 2014 hearing that his disabilities had worsened since the last examination. Specifically, he reported that he was unable to lift things or run due to his low back. He also indicated that he had to use his cane more often. He stated that he could no longer climb fuel tanks or lift objects to load containers at his job. Instead, he maintained that he currently performed a lot of desk work. See September 2014 Hearing Transcript, pp. 36-37. The Veteran also reported that his bilateral lower extremity radiculopathy was severe most of the time because his legs would lock up around the knees. He indicated that he could no longer drive because of how numb his legs were and that because he could not feel his leg, it would cause him to fall. See September 2014 Hearing Transcript, pp. 38-39. As there may have been changes in the Veteran's conditions, the Board finds that new examinations are needed to fully and fairly evaluate the Veteran's claims for increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Relevant ongoing medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Specifically, the Veteran reported during his September 2014 hearing that he had received treatment for his bilateral toe disability at the VA medical center in Fort Myer, Virginia, around 2002 or 2003. See September 2014 Hearing Transcript, p. 32. It does not appear that these medical records have been associated with the claims file, and therefore, they should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his bilateral toe disability, chronic arthritis of the joints other than the cervical spine, stroke and seizure disability, low back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy that he has not already provided. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records, including any VA medical records dated in 2002 and 2003 from the VA medical center in Fort Myer, Virginia. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Return the examination report and claims file to the examiner who conducted the December 2009 VA examination, if available. The examiner should once again review the claims file and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current bilateral toe disability is AGGRAVATED (permanent worsening of the underlying disability beyond natural progress) by the service-connected diabetes mellitus, hepatitis C, or treatment for hepatitis C. If aggravation is found, then the examiner should quantify the degree of such aggravation, if possible. The examiner should explain the medical basis for the conclusion reached. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion with rationale should be rendered by another qualified examiner. 3. Return the examination report and claims file to the examiner who conducted the June 2011 VA examination, if available. The examiner should once again review the claims file. a) The examiner should specifically identify all arthritic joints. The examiner should state whether there is any arthritis of the Veteran's knees and feet. For each arthritic joint identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current chronic arthritis of a joint, other than the cervical spine, is due to the Veteran's period of service, to include treatment for left leg pain in February 1970; treatment for right leg pain in June 1973; and treatment for a right ankle sprain in June 1974, August 1974, and August 1978. b) If not caused by or related to service, the examiner should provide an opinion as to whether any arthritis of a joint, other than the cervical spine was caused by or related to his service-connected diabetes mellitus, hepatitis C, or treatment for hepatitis C. c) If not caused by or related to the Veteran's service-connected diabetes mellitus type II, the examiner should provide an opinion as to whether the Veteran's arthritis of a joints, other than the cervical spine, is aggravated (permanent worsening of the underlying disability beyond natural progress) by the service-connected diabetes mellitus, hepatitis C, or treatment for hepatitis C. If aggravation by a service-connected disability is found, then the examiner should quantify the degree of such aggravation, if possible. d) The examiner should explain the medical basis for the conclusions reached. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinions with rationale should be rendered by another qualified examiner. 4. Return the examination report and claims file to the examiner who conducted the August 2013 VA examination, if available. The examiner should once again review the claims file. a) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current stroke or seizure disability was caused by or related to his service-connected diabetes mellitus, hepatitis C, or treatment for hepatitis C. b) If not caused by or related to the Veteran's service-connected diabetes mellitus, hepatitis C, or treatment for hepatitis C, the examiner should provide an opinion as to whether the Veteran's stroke and seizure disability is aggravated (permanent worsening of the underlying disability beyond natural progress) by the service-connected diabetes mellitus, hepatitis C, or treatment for hepatitis C. If aggravation by a service-connected disability is found, then the examiner should quantify the degree of such aggravation, if possible. The examiner should explain the medical basis for the conclusions reached. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinions with rationale should be rendered by another qualified examiner. 5. Schedule the Veteran for an appropriate VA examination to determine the current severity of his low back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy. The examiner must review the record in conjunction with the examination. All indicated tests, including x-rays and range of motion studies in degrees, should be performed and the results reported. The examiner should describe all symptomatology related to the Veteran's service-connected low back disability. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner should also state whether the Veteran's low back disability results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months. The examiner is additionally asked to identify any neurological findings related to the Veteran's right lower extremity radiculopathy and left lower extremity radiculopathy. The examiner should describe fully the extent and severity of those symptoms. The examiner should identify specifically the exact nerves which are affected and describe the severity of disability, including any paralysis that is found. 6. After the development requested above has been completed, the record should again be reviewed. If any benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, 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 2014). _________________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).